
    
      Williams and Clark vs. Willson and Leonard.
    
    That the defendant may pray oyer of bond nod plead generally, and conclude. .' with a verification; though be need not do so.
    That the omission of a nominativo case does not vitiate,where the sense remains plain.
    That plaintiffs may recover on indemnifying bond 'the money .paid.to the amount of the penalty, and interest on the same beyond the penalty.
    That where the nature of the pond admits of ijufooe assessment of damages, the seventy-ninth section of the statute must .govern and not the ninety-ninth.]
    The defendants in error brought their action before the County Court upon a bond of indemnity,in the penal surii of four hundred dollars, spreading the whole bond and condition upon the record,- and assigned two breaches, and special pleadings were presented which closed in demurrers •, and the plaintiffs recovered; and the defendants brought this writ, of error to reverse that judgment. In millo cst en-atum,pleaded.
    
    Upon inspection of the record upon which errors are assigned, it appears, that, upon demurrer to. the second assignment of the breaches in the plaintiffs’ declaration, the sam.e was adjudged against the plaintiffs, and was npt now in controversy. The first assignment,after stating that the plaintiffs, having been bail for said Williams, had taken the present bond, signed by Williams and Ciarle, for their indemnity, proceeds as follows,, to wit: “andnow “ the plaintiffs say that afterwards, to. wit, at Albany,in the state, of, “JYew York, on the 23d day-of February,1826,the-said plaintiffs, “were obliged to, and did pay,to the president,directors and com“pany .of the Bank of Lansinburgh, on the account of the said “Hosea Williams, aforesaid, and for the use and benefit of the said “iiosea, and as bail for- the, said H<osea, as. aforesaid, in the suit-“aforesaid,the sum of four hundred and ten dollars and forty-sev“en cents'.” The declaration then adds, that the defendants have, not saved harmless, and have not paid, the. plaintiffs die said monies so by them paid, &c. by which said bond has become broken,&c. The defendants instead of traversing this breach,as they might regularly have done, and concluding to the:country,.prayed oyer of the bond and condition, and spread theni at full length upon the recordj and, then pleaded a plea in bar to said breach,which,' after the introduction,, is in the words following- to wit: “because “ they say that the said plaintiffs have not, from, tire time of the “ making of the said writing obligatory, to the time of the com- “ mencement of this action, or at any- time hitherto, been in any. “ wise, damnified: by reason, or in consequence of, their having “ become bail for the said Hosea,. as. aforesaid;,, and; this they are “ ready to verify, and pray judgment”- &c.
    To this, plea the plaintiffs replied,, assigning a breach nearly in, the words used in assigning the same, in the declaration, except the omission of the nominative, case, thus: “the plaintiffs say that “ afterjthe making, &c. and before, the commencement, &c. to wit, ■“ on, &tc. were damnified, &c. and did; pay, &c.” when they should have inserted the word they to have made the sentence perfect. This replication concludes with a verification.
    
      Tq this the defendants demurred specially, assigning for cause, that there is no such action on the docket as this, entitled in the replication, which they term “ Wms. &' Clark.19 That it is not averred that the plaintiffs have been damnified, or paid any money.
    That the replication does not follow the plea ; is multifarious Stc. There was a joinder in demurrer.
    Judgment was rendered for the plaintiffs, and now errors are assigned upon this record.
    
      Bennett and Jlilcin for the plaintiffs in error. 1. In an action on a bond conditioned to save harmless, the general plea of non dam-nificatus is a correct plea. — 1 Saund. R. 117, note 1. — 1 Bos. SfPul. 638. Cro. James, 363. — 14 Johns. R. 177.
    2. The next’question on the plea in the present case, and indeed the only question, is whether it is correctly concluded with a verification. It may be said that inasmuch as the breach was assigned in the declaration, there was a direct affirmative and negative,, and, consequently, that the plea ought to have concluded to the country. But the question is not whether it would have been correct pleading to conclude to the country, but whether a conclusion with a verification is ill, after replication, and on general demurrer. We say that the conclusion with a verification is sanctioned by all the precedents. — Story’s PI. 246. — 2 Chitty, 480, 481 — 1 Lilly’s Entries, 124. — 2 Id. 494.-5 Wentworth’s PI. 533,534. Bystat. 8 & 9 Wm. HI. breaches are to be assigned on the record. — 1 Saund. 58, note 1. — 2 Saund. 187, note 2. — 2 Chitty 153 — and the'practice has long prevailed to assign them ih the declaration. Ourstatutef Comp. Laws 88,)is similar to the English statute. No distinction is hinted at in the books, in regard to the conclusion of the plea, whether the breaches are assigned in the declaration or not. Inf Chitty’s precedents the breaches are assigned in the declaration ; yet his pleas conclude with a verification. — 2 Chitty, 153, 480, 481. It is deemed of great importance to adhere to the precedents; and deviations from general rules in pleading» are frequently sanctioned, simply because so are the precedents. In many cases a conclusion either way is good. — 2 Wils. R. 113. — 2 T. R. 443, It does not follow, then, if a conclusion to the country would have been good, that one with a verification is,therefore, badi In the next place we say, that if the conclusion with a verification is ill, yet this is only cause of special demurrer. By Stat. 4 Anne — 1 Bac. Ab. 161, a wrong or defective conclusion can only be objected to by special demurrer. — 1 Chitty, 540. Our statute, (Comp. Laws, 73,) contains the substance of all the English statutes of amendment, and seems to have been taken from that of Anne, and, as we con-tendáis to have as broad and beneficial an operation as the English statute; besides, we say that the conclusion can, on principle, be regarded only as matter of form. “Every thing shall be said to be form, without which the right appears to the court.” 6 Comyn’s Digest, 208. But if the plea was bad on general demurrer, on account of its conclusion, we say that the plaintiffs by accepting the plea, and replying over, and not demurring, have waived the exception. — 6 Comyn, 140. — 10 Mass. R. 226.— 11 Mass. R. 119.
    3. The plaintiffs’ replication is clearly bad. The causes assigned for demurrer are conclusive — especially as'it is not averred that the plaintiffs were damnified,or had paid any monies.
    4. It is assigned for error that judgment was rendered for $26, 67 cents, damages, over and above the penalty of the bond. The plaintiffs in error contend that a bond, conditioned to save harmless, is a security only to the amount of the penalty, and that in an action on such bond, the plaintiffis entitled only to the amount of the penalty. — 2 Bur. R. 824. — Doug. 49. — 6 T. R. 303. — 2 Black. R. 1190. — 3 Brown’s Ch. R. 48-496. 'We apprehend the seeming inconsistency in the cases may be reconciled by this rule. Where upon breach of the condition,the damages are entirely uncertain, as in bonds of indemnity, the amount of the penalty is, by consent of the parties, made the extent of the damages, (and under the statute judgment is rendered for the damages;) but where, upon breach of the condition, the penalty becomes a debt due from the obligor to the obligee, there, interest on the penalty may be allowed by way of damages for the detention. — 1 Saund. 58, note 1.
    -5. It is further assigned for error, that judgment was rendered upon the pleadings for the penal sum of the bond, as debt, and in
      
      terest thereon, as damages. The demurrer to the replication, we contend, did not admit the amount of the damnification — the precise amount there stated was. not a material traversable fact. Notwithstanding the demurrer, we contend that the defendants below were entitled to a hearing in damages — and without an assessment of damages, the plaintiffs below were entitled to but a nom- ■ inal sum. By our statute, ( Comp. Laws, 88,) breaches are to be assigned &c. — and damages assessed on the breaches assigned, and execution is to issue, for such damages. The judgment for the penalty remains as a security for further breaches. And though the breaches are assigned in the present case in the declaration, and the defendants’ plea is adjudged insufficient, yet, we say, damages are to be ássessed and execution is to. issue, for the damages.
    
      Mr. Sheldon, for the defendant in error, contended, 1. That the declaration is sufficient and good. 2. That the plea in bar is bad — and any kind of answer is sufficient for a bad plea. 3. A general demurrer will reach the declaration.: — 3 Ver. R. 316. But wherever a general demurrer would reach the declaration, any special demurrer to any of the sub.sequ.ent pleadings cannot reach the declaration- — 3 Ver. R. 332. 4. That the court can render judgment for a sum beyond the amo.unt of (he sum stated in the contract, pr penalty. In an action, on. bond, damages maybe recovered for more than the penalty. — 2 T. R. 388. — 10 Mass. 230. — 4 Dallas, 149. Interest, in damages, may. be recovered beyond principal,against the surety on bond-. — 1 Mass. R. 308. 5. When judgment is rendered according to law, on default lor demurrer, the court have full power to assess damages, and in no case can any advantage be taken, without motion, made by the party claiming the chancery, either by the court or jury. — Rev. Laws 73, s. 54. — Id. p. 79 s. 75. — 1 Chip. 247. The same do.ctrine is recognized in other states. — Yelv.,152,. a. note 3.
   Hutchinson J.

delivered fhe opinion of the coprt. In disposr ing of the several questions raised in argument, we. may notice that the defendants’ plea is not a direct denial of the assignment of the. breach in the declaration, as th.e counsel seemed to suppose in, argument, but is a general plea of non damnifcatus, framed according to the forms in the books, and calling upon the plaintiffs for a new assignment in their replication. It certainly would have; been better for the defendants to have traversed directly, and' avoided the prolixity in the pleadings which now appears, yet we find no instance in which such a plea as the presenthas been adjudged bad. The defendant may always feel it his duty to pray oyer of the bond and condition for the purpose of knowing whether it is truly described, and, if it is not truly described in the declaration, he may plead to it as it is, and might be injured by plea-1 ding to it as thé plaintiffs describe it., But if on oyer, he finds it truly described, he may save labor by traversing directly., Yet the precedents referred to by the plaintiffs in error, support their mode of pleading in the present case. If the plea is general, calling for a new assignment, such plea must conclude with a verification,

The assignment of errors attacks the declaration: but no objection to that is raised in argument, nor do we discover it to be defective. And we are disposed to support the plea of the original defendants. This leads to the question, whether the plaintiffs replication,or new assignment,^ good and sufficient ? whether it can stand against a special demurrer ? The objection that there is no such action on the docket, having reference to the contracted mode of writing the names, Williams and Clark, does not exist in the record recited in the writ of error. That recital is, “and now the plaintiffs in reply to the first plea,”&c. ■ This can mean no other than the plaintiffs’ in the action, to be affected by the writ of error. This disposes of that objection.

The only objection to the replication of any substance is the omission to express the nominative case to the verb damnified, to which is coupled the word pay. This would be natural, and might be elegant in Latin; but in English, it is clearly a defect, that careful reading will discover; yet it is impossible for any two to read the replication,and differ in their construction of the sense and meaning. The plea is, “that the plaintiffs ought to be barred, because they have not been damnified.” The replication is, “that the plaintiffs, by reason of any thing in said jfiea contained, ought not to be barred, because they say that, after, &tc. were damnified, in consequence of bo coming bail for the said Jrlosea, as aforesaid, were then and there obliged to, and did pay on account of the said Hosea, and for his benefit, and as bail as aforesaid, in die suit aforesaid mentioned,die sum of four hundred and ten dollars and forty seven cents; and were damnified by said payment, according to the true intent and meaning of the condition of said writing obligatory.” This replication is drawn in reference to the same subject matter, before recited in the declaration, in the oyer and in the plea ; and the reference too plain to be misunderstood. When, to supply the elipsis, we ask, who were damnified ? who were obliged to pay ? who paid ? every person reading must answer, the plaintiffs. A trifling misspelling of a word might tend more to create uncertainty, than this omission' does in- the present case. We do not think that justice requires a reversal of the judgment for a defect so minute, and which so little affects the sense, and creates so little obscurity as this under consideration. In the construction of contracts, when the word not is wrongly inserted or omitted, if the sense is yet manifest upon the whole sentence taken'together, it is construed according to that sense, without regard to the mistake. The eases in 1 Ld. Raym. 145.—2 Id. 899 and 1156, support this opinion of the court. We pass to the error assigned in relation to the form of entering the judgment of the CountyCourt. The judgment is,that the plaintiffs recover four hundred dollars debt,together with ‡26 67 damages, and their cost in and about said suit expended, taxed at $18 81.

Now, it is contended by the plaintiffs in error, that the law will not admit such a judgment as this upon die bond in question. First,it appears to be for the penalty,and for damages beyond the penalty. Second, it does not appear that the damages have been-assessed according to the statute. The court do not hesitate at all to decide,that a decision for the original plaintiffs upon the pleadings in the case, does not establish the amount of damages. Though the breach assigned is the payment of a sum beyond the penalty, yet the defendants might contest the sum due, either on motion to chancer, or on a request to have the damages assessed by the jury; neither of which, however, appear in this case. Nor does it appear for what sum execution was ordered or issued. Nor does it appear that judgment for the penalty was ordered to stand as security for any future breach of the condition.

The plaintiffs in error seem to. suppose that judgment was rendered, as it was in form, for the penalty and interest, but in reality for the amount of payments, equal to the penalty of the bond» and interest upon the same beyond the penalty ; which they say is incorrect; and they cite 1 Saund, 58, «oía, to show that the ob-ligee cannot recover more damages against the obligor, than the amount of the penalty; for the bond ascertains the extent of the damages by consent of parties, &c. ana, though he sustain damage far beyond, yet he can recover only to the extent of the penalty. This is laid down as a general rulé, applying to cases where the nature of the condition furnishes no criterion for the amount of damage, by mere computation of the monies paid, and interest, but requires an assessment by the jury of the value of services done or neglected, or things alike uncertain in themselves. This must be the intention; for the same author, in the same nojie, proceeds, and lays down a doctrine much more applicable to tire present case, if the damages allowed were, as may well be supposed, for money actually paid and interest on the same. He says, “but cases may sometimes occur, where the obligee may recover more than the penalty of the bond ; as, where, by the breach of the condition, the penalty becomes a real debt due from the obligor to the obli-gee, and is admitted by the obligor to be so j in these cases, it is against justice and conscience for the obligor to withhold the payment of the penalty from the obligee when demanded; hut if by any contrivance, he does in fact withhold payment, upon what principle of law, or honesty, are a jury not to give the obligee interest by way of damages for the detention of the debt in this case, as well as in the case of bills of exchange, or promissory notes, or "the like, where interest is always given when payment is refused ?”

Now, whether the obligor admits the penalty tobe a real debt, as suggested by the above authority, or the obligee prove a payment of money, according to the condition of the bond, to the full amount of the penalty, makes no difference in the reason or law of the ease. And we entertain no doubt but that the original plaintiffs were entitled to recover for monies actually paid to the amount of the penalty, and interest on the same, as damages, though that exceed the penalty. And, whether it is entered as debt and damages, or as damages alone, does hoc much aflect the rights of the parties, otherwise than as they are bound to conform to the requsitions oí the law with regard to the form, as well as the amount of the judgment.

At common law, the judgment upon a bond with condition, when a breach is acertahed, must bp for the penalty; and the ob-ligor was driven to his bill iu chancery to dimmish the sum according to equity. The statute of 8 and 9 Will. III. has made provision for the whole to be settled at law, and extends to all cases where money is to be paid, or convenants to be performed, at dif-erent times ; and Saunders says, in. said note, that it was meant for such cases.

Our statute, (sec. 99s p. 88,) makes ft similar provision, whereby the obligee may assign as many breaches as exist; and recover for what he can prove; and judgment: must be entered for the pcnal- ' ty, and stand as security for any future breaches, to be assigned in a scire facias; and execution is to issue for such sum as the jury assess in damages, together with cost. Difficulties are now suggested upon die supposition that this 99i/t sec. should govern the case in question. This probably is not correct. The same statute contains provisions suited to cases of suits upon bonds, upon which there can be but one breach, nor but one recovery, and where there can be no object for the judgment for the penalty to stand as the foundation for a scire facias. Such are jail bonds ; and all bonds conditioned for the payment of a single sum of money; or performing a single service, or duty. See sec. 75, p. 79 of stat. where it is provided that “in all cases, brought before the County or Supreme Courts, to recover the forfeiture annexed to' ¡any articles of agreement, covenant, bond, Bond of recognizance, with condition thereunto annexed, where the forfeiture, breach, .or non-performance shall appear by a verdict of a jury, or by the default or confession of.the defendant, or upon demurrer, the courts respectively, before which the action is pending, are au-thorised to- moderate the rigor of the law, and reuder judgment therein for the plaintiff to recover so much as is due according :to equity and good conscience, aud award execution accordingly y and, when the sum for which the judgment should be rendered* is uncertain, the same shall, on the request of either' party, be assessed by a jury.” It is obvious by this section, that, in cases that fall within it, the jury háve nothing to do with the assessment of damages, unless there is a request'for it from one of the parties; and that request should be in writing, and filed in the action; and when so filed, has as- full an effect to take the case from the court to the jury, as the joining of an issue to the jury in the regular course of pleading. It is equally obvious that this provision is made in favor of the obligor, and to save him the, necessity of applying to a court of Chancery to reduce the sum; and the application to the court of law for tire same object, should come from the defendant. And if .judgment is rendered for the ■obligee on demurrer, as in this case, and the obligor makes no motion to have the sum reduced, he must not complain of error in the court, if they render judgment for the full debt. And : in such case, if the obligor has neglected the relief the statute gives him, and injustice has been done him, he may still have relief in chancery; but it is no error, in such a cane, for the court to enter up judgment for the amount of the penalty as debt. But the plaintiffs may choose to take judgment only for the sum actually due, as is usually done in suits upon jail bonds, and the judgment is rendered accordingly. For aught that appears-in the present case, the judgment for tire penalty as debt irregular, and the sum of $26,67 was the sum unceremoniously assessed as damages, with the assent of the original plain tiffs, and that execution was intended for drat sum and cost only. If so, and execution has issued for any larger sum wrongfully, the parties have their remedy by motion in the same court to set aside the execution as having issued irregularly.

Again, as the court clearly had a right to enter up the judgment, and hear evidence, and ascertain the sum actually due, nodiing appears in the case but that the court found that, at a given period, the original plaintiffs had to pay, and paid a sum equal to the penalty, and considered the penalty as a debt from that time really due; and according to the authority cited, and as the law would be, aside from the statute, rendered judgment for the penalty as the actual debt, and for the interest as damages. And jn either case, the defendant could-not be injured.

Bennett and Ailiin, for plaintiffs in error.

Sheldon, for defendants in error.

The judgment of the court is, that there is no error, and that the judgment of the county court be affirmed.  