Smith & Nolen vs. Eubanks.
Whore the- record of ajudgment is not the foundation of the action, but tlie judgment is stated in the declaration, merely to show a damage or injury to the plaintiff, it is not a variance, although the judgment offered in evidence does not correspond in the amount with that alleged in the declaration.
When inatter of fact is the foundation of the action, and matter of record only inducement thereto, a slight variance in the description of the record is not a fatal variance.
A, by bond, indemnified B, against a certain note, upon which B was afterwards sued and judgment recovered, which judgment was paid by the appearance bail of B. B after-wards sued A upon his bond of indemnity; Held, that the bond of indemnity was forfeited as soon as judgment was rendered against B, and A,upon notice thereof, failed to secure him from responsibility thereon by paying the same: Held also, that a payment by the appearance bail was equivalent to a payment by B.
The modern and better practice in declaring upon bonds with conditions, is to set forth the condition of the bond, and assign the breach specially in the declaration.
When the condition and breach of a bond of indemnity is stated in the declaration, and the plaintiff, to the plea of conditions performed, replied, concluding his replication with a verification, to which the word “rejoinder” was filed: Held, that a verdict rendered for the plaintiff would not be disturbed.
The want of asimiliter is cured aftei verdict.
When pleadings are filed, in short, without being specially drawn out, and the parties elect to go to trial thereon, the court will not disturb the verdict.
This was an action brought by Eubanks, the defendant in error, against Smith and Nolen, the plaintiffs in error, upon a bond of indemnity, executed by them, to secure him from liability on an obligation he had made to one George Whyte, for one hundred and twenty nine dollars, payable in furniture, on which he, Eubanks, had been garnisheed by Nolen, and a judgment rendered against him, upon which his property was sold. The condition of the bond is, “that the said Smith and Nolen shall at all times thereafter well and truly secure, save harmless, and indemnify, the said Eubanks from and against said note or obligation of one hundred and *21twenty-nine dollars, and from the payment and satisfaction the same, in the hands of whomsoever the same may he, from all and every suit or suits that may thereafter be brought on the same, and from all judgments that may thereafter be recovered on the same against the said Eubanks.”
The declaration avers, that thé said Smith and Nolen did not, from and after the time of executing said bond of indemnity, well and truly secure, save harmless, and indemnify him, the said Eubanks, from and against the said note or obligation, of one hundred and twenty-nine dollars, or from the payment or satisfaction of the same, and from all and every suit or suits that had been brought on the same, since the making of said bond, of indemnity, and from all judgments that had been recovered on the same from the date of said bond of indemnity; but that after the making of said bond of indemnity, the said George Whyte had caused suit to be brought against him, the said Eubanks, on the afore-sai^ note of one hundred and twenty-nine dollars, and recovered-judgment thereon against him, for a large sum of money, to wit, the sum of two hundred dollars and the costs; to wit, the sum of fifty dollars, which he had been compelled to pay and had paid on account of the said note, or obligation, of one hundred and twenty nine dollars, mentioned in said bond of indemnity. To this declaration many pleas were filed, the first six of which, present the only questions of importance to wit: arising in this case; they are all substantially the same, that the said Smith and Nolen had performed their covenants, and that the said Eubanks had not been indemnified by said note of one hundred and twenty-nine dollars, and conclude with a verification.
To these pleas a replication is filed, containing in substance the same special breach assigned in the declaration, concluding with a verification.
To this replication the word “rejoinder” is entered upon the record, by the plaintiffs in error, Smith and Nolen.
Upon this state of pleading, a jury is sworn, to try the issues joined between the parties, and a verdict is found for the defendant in error.
At the trial, Eubanks produced a record of a judgment of *22the circuit court, of Williamson county, State of Tennessee, against him by the aforesaid George Whyte, upon the note of one hundred and twenty-nine dollars, against wjjich ⅛ had been indemnified by the plaintiffs in error, but the judgment was for a different amount from that set forth in the declaration and replication. He also proved that Foster and Miller, his appearance bail, had been compelled to pay the same. The bill of exceptions shows, that the plaintiffs in error objected to the reading of the record of said judgment, because of the variance between the amount thereof, as contained in the judgment and as specified in the pleadings, which objection was overruled.
J. Marshall ⅜ Sooner, for plaintiffs in error.
Alexander, for defendant in error.
Turly, J.
delivered the opinion of the court.
Upon this case three questions arise for consideration.
1. Did the court below err in permitting a copy of the record of the judgment in favor of Whyte against Eubanks to be read? We are of opinion it did not. It is true, there is a variance in the amount of the judgment set forth .in the pleadings, and that shown by the record, which would have been fatal, if the record had been the foundation of the suit, and to which the plea of nul tiel record could have been pleaded, but in this case, the bond of indemnity is the foundation of the suit. Indemnification or no indemnification is the question in dispute, to which the judgment is mere matter of inducement, and only important, so far as the amount is concerned, in fixing the damages to be assessed.
When matter of fact is the foundation of an action, and matter of record inducement thereto, it has always been held that a slight variance in the description of the record is not fatal, as in actions for malicious prosecutions, actions against sheriffs for escapes, and for not executing process.
2. Has Eubanks been damnified? It is contended that he has not, because he did not himself pay and satisfy the judgment, but the same was done by his appearance bail. We *23are of opinion, that the bond of indemnity was forfeited, as • 1 1 , . V, , , . , soon as a judgment was rendered against Jiubanks, and plaintiff in error failed upon notice thereof, to secure him from responsibility thereon, by paying the-same; and moreover, if it was necessary for him to have paid the judgment before he could claim to have been indemnified; that a payment of it, by his bail was equivalent to a payment of it by himself.
3. Are the pleadings in such a situation as to support the verdict and judgment, which have been rendered in the court below?
The ancient practice upon bonds of this character was to declare upon the penalty without noticing the condition, and assign as a breach the non-payment of the money. This made it necessary for the defendant to set forth by oyer the bond and condition, and plead generally, that the plaintiff had not been damnified, which being a new state of the case, the plea, of course, had to conclude with a verification. The plaintiff then filed a replication in which he was compelled to show specially how he had been damnified, which being new matter had to conclude with a verification. The rejoinder denied the replication and concluded to the country. But the modern and better practice is, that pursued in the declaration in this case, to set forth the condition of the bond, and assign the breach specially in the declaration, to which the plea in substance is, that the plaintiff has not been dam-nified in manner and form as he, in declaring, had alleged, and of this he puts himself upon the country; the issue, thus, being made at once. This was the proper course to have pursued in this case, instead of running the pleadings to a replication, concluding with a verification.
This state of the pleadings, at first, induced the court to be of opinion, that there was no issue, inasmuch as the word “rejoinder” could not of itself make one; but upon further reflection, we have altered that opinion, for although the pleadings have been extended further than was necessary, yet as the case stands, they are not erroneous. If the rejoinder had been drawn out, denying the replication, and concluding to the country, the preceding defects would have been cured, and an issue tendered, a verdict upon which, would have been *24good without a similiter. And, therefore, much as we dislike such loose pleading, we are compelled to say, that inasmuch as the plaintiffs in error have elected to consider the word “rejoinder,” as a rejoinder, instead of insisting upon one in form, they must submit to have it so construed as to sustain the verdict, and this, in order to prevent their taking advantage of their own wrong; therefore, let the judgment be affirmed.
Judgment affirmed.