*523 By the Court,
Marcy J.To an action of debt tin board; I think there is no well founded, objection to the defendant’s annexing a notice of special matter to be given in evidence on the trial to his plea of non est factum. Such notice has been allowed to be annexed to a plea of non est factum in covenant. (14 Johns. R. 89. 2 Wendell, 517.)
In this case there was not only a notice of special matter, but also several special pleas. It is contended that special pleas and a notice of the same special matter ought not to be allowed. If there be a general issue, the party has a right secured to him by statute to annex such notice ; over special pleas the court exercises a discretion, they are supposed to be put in with the leave of the court; and though this leave, in point of fact, is not obtained before pleading, yet if the implied license is not fairly exercised, the court will correct the abuse. If the defendant improperly incumbers the record, the court, on application, will strike out such pleas as they deem unnecessary ; but they will rarely if ever supervise the discretion which an inferior tribunal has exercised in this matter.
The remaining questions arise out of the charge of the court below. The appeal was in fact from a judgment rendered in favor of the present plaintiff against Springer, one of the defendants, on the 2d of October, 1826, but in making his return, the justice stated the judgment to have been rendered on the 30th of September. After the parties had prepared to try the cause in'the common pleas, the discrepancy was discovered, and the plaintiff moved to dismiss the appeal on the ground of the variance between the appeal bond and the justice’s return. The motion was granted, and as the rule stated, with costs to be paid by the appellant.
The court decided that the condition of the bond, so far as it related to prosecuting the appeal with diligence, was brokken, but they refused to allow the plaintiff to shew the costs of the proceedings which were dismissed. To this opinion there is an exception. The court, by dismissing the appeal, decided that the judgment returned by the justice was not the judgment mentioned in the bond. If it was a different judgment, there is no pretence that the costs incurred in the *524prosecution of an appeal therefrom were provided for by the bond. The costs claimed resulted from proceedings purporting to be an appeal from a judgment entered on the 30th September ; but the bond provided for the costs which might accrue jn prosecuting an appeal from a judgment entered on the 2d of October. The plaintiff having procured the appellant to be turned out of the court below upon the allegation that he was prosecuting proceedings different from those contemplated by the bond, ought not now to recover the costs of those proceedings under the bond, by alleging or assuming that they were in fact what he denied them to be on his motion for the dismissal of the appeal. The bond provided for the payment of the costs that might accrue on an appeal from a judgment entered on the 2d October, but not for those which might arise on an appeal from a judgment rendered on any other day. I think, therefore, that the court decided correctly in instructing the jury not 'to allow those costs.
There is another view to be taken of this part of the case which shows the correctness of the decision below. The breach assigned in the declaration was for not prosecuting with due diligence an appeal from a judgment rendered on the 2d October, and for the costs of the proceedings on that appeal; but the plaintiff did not prove any such proceedings. What proceedings there had been were in a different case ; besides, the breach, so far as it related to the costs, was not proved. The defendant Springer might have been in default for not prosecuting his appeal with diligence, because he had not obtained even the justice’s return in the suit, for the review of which the appeal was brought; but the proceedings on the return made by the justice were a very different matter. The plaintiff did not therefore shew that any costs had been incurred in the appeal to which the bond related.
There is a further condition to the bond which the plaintiff contends has been broken. The defendant Springer has not, as the bond provides he should, paid the judgment recovered before the justice, or surrendered" himself in execution. The court below decided that the defendant Springer .could not be in default for not surrendering himself until the *525plaintiff had caused an execution to be issued. This part of the condition of the bond is similar to the condition of the bond which was required by the 8th section of the act of 1818, extending the jurisdiction of justices of the peace. In the case of Tuttle and others v. Kip, (19 Johns. R. 194,) it was held that an execution must be issued to enable the defendant to surrender. The plaintiff stated certain facts in assigning his breach as an excuse for not having issued an execution ; and he contends that, because these facts were not particularly traversed by the plea, the validity of the excuse is admitted by the pleadings. The facts not being denied, may be considered as admitted ; yet, if they do not make out a valid excuse, or if no excuse will dispense with the issuing of and execution, the condition of the bond which required Springer to surrender himself is not broken. I am inclined to coincide with the court below in their opinion pronounced by them on this point.
Judgment affirmed.