Ferris v. Purdy

Headnote

jy! andB.astruschurch, cenjgSlb'. the obligee, with bie dwelling* ^necessity °re thaTThc plaintiff was bound to show the existence aviTing from ' inability to procure a condition pro^ghTto rcco“

THIS was an action of debt on a bond, conditioned “ that if the above bounden trustees of the presbyterian society of Yorktomn, shall well and truly furnish the aforesaid George Ferris, if necessity requires, with a comfortable dwelling-house, 20 by 30 feet, with a small kitchen, then the above obligation to be void,” 8cc. The defendants pleaded the general issue, with notice of special matter to be given in evidence at the trial.

The plaintiff proved the bond, and that at the time of its execulion he was in possession of a certain house which he held un_ , , „ , , . _ . aer the detendants; that a judgment m ejectment for the same premises had been recovered against him, and a writ of possession executed in September, 1807, and that before the commencement of the present suit, the plaintiff gave notice to the defendants of his being turned out by the writ of possession, and required of them to furnish him with the house mentioned in the condition of the bond, which they had neglected to do. The defendants proved that the plaintiff having attorned to the lessors in the action of ejectment, remained in possession of the house until the next May, when he hired another house, and removed from the premises. It appeared from the testimony of the defendants’ witness, on his cross-examination by the plaintiff, that the bond was given to indemnify the plaintiff in case he should be evicted by Tno mas Stacy, whose title the plaintiff afterwards purchased.

The plaintiff offered in evidence a lease from the defendants of the house and lot, for a term of years, to the plaintiff, dated at the same time with the bond, and offered tb prove, by the testimony of one of the subscribing witnesses to the bond, that the lease

and bond were executed at the same time, and that the bond was jnten5eci for the plaintiff’s indemnity, in case the plaintiff should be removed, during the lease, from the premises; and that his eviction from the demised premises was the necessity for a house, intended by the bond. This evidence was objected to and rejected by the judge, who decided that the plaintiff was not entitled to recover, unless he showed that he was unable, by reason of his poverty, to procure a house for himself.

The plaintiff submitted to a nonsuit.

A motion was made to set aside the nonsuit, which was submitted for the decision of the court on the above case.