The opinion of the court was delivered by
The declaration in this case counted simply upon a bond for the sum of $1000, executed jointly and severally by tie defendants, the first as principal, and the last as surety, dated November 25, 1840. The defendants craved oyer of the bond and condition ; and, being set out, it appears to have been a bond of
The defendants pleaded, — 1, Non est factum; 2, Non damnificatus; 3, That the plaintiff has never paid the judgment recovered by Carlos Chamberlain against him and the principal in the bond, but the latter remains jointly liable with the former therefor, and has, moreover, for one whole year, been imprisoned in the common jail in Windsor county, and its liberties, by virtue of said Chamberlain’s execution, and has had and can have no benefit from any act done or payment made by the plaintiff upon said joint claim. These two last grounds of defence are presented in the form of a written notice, in connection with the first plea. The plaintiff joins issue upon the plea of non est factum, and replies to the matters contained in-the notice, by setting forth, as breaches of the condition of the bond, the prosecution to final judgment of the suit instituted by Carlos Chamberlain, in 1842, the taking out of execution thereon and putting the same into the hands of a deputy sheriff for collection, and the payment by him, October 25, 1843, of the full amount thereof, with interest, officer’s fees, &c., being 8403,20 ; and farther, that he had been obliged to pay $ 100 more, for expenses of keepincr the cattle attached, and for necessary assistance in taking care of the property. The defendants rejoin, that the plaintiff had not, before the commencement of this suit, been compelled to pay said judgment and execution, and had not in fact paid the same, nor the other money mentioned in his assignment of breaches; and tender an issue to the country, which is joined by the plaintiff.
Several points have been made by the defendants’ counsel, the most important of which, perhaps, is based upon the idea, that, even
As the declaration does not and need not contain any allusion to the condition of the writing obligatory, and of course no assignment of breaches, if it were incumbent at all upon the plaintiff to place such an averment upon record, it could properly be done no where else, than in such assignment of breaches. Jt could doubtless have been done in connection with the statement of the fact of payment, without any incongruity; but, instead of demurring on account of the deficiency, the defendants, in their rejoinder, reiterate, with some little enlargement, what they had averred in their notice, that the plaintiff had not been compelled to pay, and had not paid, the judgment of Chamberlain, and tendered an issue of fact. The issue, thus formed, must necessarily be passed upon by the jury, and found for one party, or the other, according to the weight of evidence adduced. It has been found for the plaintiff, and no motion was interposed, on the part of the defendants, for judgment in their favor non obstante veredicto, nor to have the verdict set aside and a re-pleader awarded on account of the immateriality of the issue. I am satisfied, that no such motion could have been properly entertained; but whether so, or not, under the circumstances of the case the county court could not do otherwise than render judgment upon that verdict for the plaintiff.
This view of the subject necessarily disposes of the objection to the introduction of the receipt, unless accompanied by evidence that the payment verified by it was made known to Hayes. Such a circumstance was not comprehended in the issue, and need not, therefore, be proved. All that has fallen from counsel, in respect to the supposed necessity of satisfaction being entered upon the original execution, or the copy lodged with the jail-keeper, or upon the clerk’s docket, rests upon no better foundation. Had the defend
Hayes was the principal in the suit against himself and his officer, and must be presumed to have been equally cognizant with the latter of its progress and final termination. With or without a special engagement to that effect, by bond or otherwise, it was his duty “at all times to indemnify and save harmless his agent; and, when judgment was finally obtained, it was his duty to satisfy it. If he fail to do this, and the officer thereby is compelled to do it for him, a right of action results immediately, without notice, or special request.
It is useless to inquire by what chapter of accidents it happened, that, after the payment of the judgment by Topliff, Hayes, who was then on the jail limits, was not only not discharged by the creditor, but continued thus restrained of his liberty for about a year, when he was, at the instance of his bondsman, recommitted to close jail, from which he was again relieved by procuring new bonds, — which soon became inoperative by the certificate of Chamberlain’s attor-nies, indorsed upon the copy of the execution in the jail-keeper’s possession, importing that the judgment therein referred to had been settled between the parties, about a year previous. Chamberlain resided in Boston, and may be presumed to have been unaware of Hayes’ continued confinement. His attornies resided in the village where the jail was situated, but may have been ignorant of the receipt of notes in satisfaction by Augustus; or, if acquainted with that fact, may have had no knowledge of the continued detention of Hayes, until the recommitment turned their attention to it. However this may be, it was no part of the duty of the plaintiff, residing in Barnard, to make inquiries into these matters. He might reason
It is hardly necessary to say, that we perceive no error, on the part of the county court, in allowing that portion of Carlos Chamberlain’s deposition to be read as evidence, in which he speaks of the authority he had given to his former clerk, Augustus, then in Vermont, to settle and adjust the execution and judgment against Hayes and Topliff, and explains the motives and objects he had in view. The letter containing this authority, or so much of it as bears upon this point, the signature’being proved, was read by the plaintiff without objection in the opening of his case, for the purpose of laying the foundation for the admission of Augustus’ receipt. The recollection of the deponent as to the contents of his letter was certainly very accurate. The jury could not, therefore, have been misled.
The judgment of the county court is affirmed.