
    Jacob Lorick ads. Levi Richardson.
    Where an attaching1 creditor gave a bond to the garnishee to indemnify him, for the delivery up of property belonging to the absent debtor. ' and the garnishee sued on the bond, to which the defendant pleaded performance, the court Held, that a replication assigning for breach that another attaching creditor had recovered against the plaintiff a certain sum due by the absent debtor, was a departure and no breach of the bond ; and a demurrer to it on that ground was supported
    Newberry — Fall Term, 1820. Tried before Mn Justice Gantt.
    
    fin A HIS was an action of debt, on a bond given by the defendant, an attaching creditor, to the plaintiff’s garnishee, to indemnify him against any claims which might be made by the absent debtor, upon him for a note of hand belong» ing to the debtor, which he the plaintiff gave up to the defendant.
    The defendant pleaded performance.
    The plaintiff replied, and assigned for breach that another attaching creditor had recovered against him a certain sum due by the absent debtor.
    To this replication, the defendant demurred; because the breach assigned was no breach of the condition of the bond, and because the replication wa.s no answer to the plea.
    The Judge overruled the demurrer j and from that decision the defendant appealed, and moved to reverse it:
    1st. Because the breach assigned was no hreach of the condition of the bond.
    2d. Because the replication was no answer to the plea.
    
      O'-Neal, for the motion.-
    
      Bauskett. contra-
   Mr. Justice Richardson

delivered the opinion of the court.

The question submitted is,was the replication a departure from ther court?

f Departure,Js,, wnen a replication contains subsequent matter'which d tie s'1 not fortify the matter in the declaration. (Co. Lit., 303, b. 1 Chitty, 618.)

The count is upon a bond to hold the plaintiff harmless against the claims of a named person; and the replication is, that a different person recovered against the plaintiff. This replication, if true, is yet no breach of the bond, and does not maintain the first allegation, that the defendant was to indemnify the plaintiff against the claims of a specified person. The departure, therefore, is plain, and the motion granted.

Justices Nott, Johnson, Cdlcock and Huger, concurred-;.  