EVERETT v. BARTLETT ET AL.
1. A bond given to a sheriff in pursuance of the second section of the supplement to the act for the better regulation of actions of replevin, passed the 19th of February 1839, need not be assigned to the plaintiff under hand and seal in the presence of two witnesses.
2. A plea, directly negativing a material averment in a declaration, ought to conclude to the country; if it conclude with a verification, it is bad on a special demurrer.
This was an action on a bond given to the sheriff of the county of Hudson, pursuant to the provisions of the second section of the supplement to the act for the better regulation of actions of replevin, passed the 19th day of February 1839, and by the sheriff assigned to the plaintiff.
The declaration sets out the bond and condition and assigns as a breach, that the defendants “did not deliver the goods and chattels &c.” in the words of the condition.
To this declaration the defendants, among other pleas, pleaded, Fourthly, Actio non, because the sheriff had not assigned the *118bond to the plaintiff by indorsement thereon in writing, under his hand and seal in the presence of two witnesses, according to the form of the statute &c. with a conclusion to the country; and Seventhly, Actio non, because they had delivered the goods and chattels Ac. according to the condition of the bond; this plea concluded with a verification.
To the fourth plea, the plaintiff put in a general demurer; to the seventh plea a special demurrer.
H. W. Green for the plaintiff.
The opinion of the Court, was delivered by
Hornblower, C. J.
The demurrer to the fourth plea is well put in ; the plea is no denial of any allegation contained in the declaration, nor does the matter of the plea constitute any bar to the action. The statute under which this bond was given, prescribes no mode of making the assignment. It simply authorizes and requires the sheriff, at the request of the plaintiff, “ to assign” the bond to him. An assignment therefore, in writing or by parol and delivery, or by any other act amounting to a legal transfer of the bond, is a good assignment, under this statute. The act prescribing the manner in which bail bonds must be assigned, has no application to such a bond as this.
The defendants further pleaded seventhly, That they had delivered the goods and chattels, according to the condition of the bond; but they conclude this plea, (which is a direct negation of the breach assigned in the declaration,) with a verification; instead of tendering an issue to the country. For this cause the plaintiff has demurred specially to this plea. It needs no argument to prove, that the demurrer must be sustained. It looks indeed, as if the pleader’s object, was more to effect delay, than to defend his client in good faith. Judgment must be given for the plaintiff on both demurrers, with costs.
Judgment accordingly.