delivered the opinion of the Court.
As to the first exception taken on the part of the defendants, jhe construction has always been as stated by the plaintiff’s counsel.— If the appellee again recover on the appeal, it is an affirmance of the former judgment, fully as to the right, and partially as to the quantum of damages. It was unnecessary for the plaintiff to set forth the taking out of an execution at all: it would have been sufficient to have stated, generally, that he had been delayed and put to great damages and costs. He might have averred the insolvency of Johnson, and that he could not obtain satisfaction of his judgment, But an averment that Johnson had not answered and paid, is in such case indispensable. Instead of this, the plaintiff has set forth certain facts from which we are to draw the conclusion, that Johnson the appellant has not answered and paid, &c. The facts are, *340that the plaintiff recovered judgment — took out execution, and put ^ bito the hands of a proper officer, who returned, that he could find no goods, chattels or estate of Johnson, whereof to satisfy the execution, except as to a small' part: Hence, it is deemed a fair conelusion, that J. Johnson has not answered and paid the intervening damages and costs sustained by the plaintiff. It certainly amounts to nothing more than this, that a partial satisfaction, only, had been obtained on the execution, but it affords no legal conclusion, that full satisfaction had, at no time, been obtained or made. There should have been a direct averment, that Ji Johnson had never answered and paid the intervening damages and costs. The breach is not well assigned. There must, therefore, be
Judgment for the defendant.