Douglass v. Clark — 14 Johns. 177

Majority

p. 177

Douglass against Clark.

NEW-YORK,

May, 1817.

Headnote

When the era - recites another thepbtotiiSno bound to the payment oí certain duties from J. ^ ¡^he’derendmt ^payoi/Md sEtE, “2 tm-d 1 harmleá» «Eiigationtd to he consi-, dereda? an un» dertauingtopay off the recited! S-etom a pie» brnd^aUa?1*

THIS was an actioníóf debt on bond. The condition of the bond, as set forth in the oyer, was as follows“ Whereas the said Zebulon (the plaintiff) and Levi Rice, heretofore executed their bond to the United States, conditioned to pay the collecof the twentieth collection district of the state of New-York, the amount of duty payable by the said Levi Rice, by virtue of the act of congress of the United Slates, passed the 24th day of July, 1813, entitled an act, laying duties on licenses to distillers of spirituous liquors, on two certain stills of the said Levi Rice, situate in Lenox, as by the said bond may more fully appear: Now, therefore, it the said Sylvester Clark, above bounden, well and truly pay off and discharge the said bond, and hold the said Zebulon harmless and indemnified from the pay-P . f, i .» ii _ r J ment thereof or any part thereof, and from all costs, damages, . . ’ o 1 and charges, thence arising to the said Zebulon, then the above obligation to be null and void, otherwise to be and remain in full force and virtue.” The defendant pleaded, 1. Non factum. 2. Non damnificatus: to which last plea there was a general demurrer, ami joinder in demurrer.

The case was submitted to the court without argument

Whether this plea be good or not will depend upon what is to be deemed the true construction of this bond. If the defendant is to be considered as undertaking to pay off and discharge the recited bond, the plea is bad •, but if it .be considered a bond of indemnity, and to save the plaintiff harmless from all damages, by reason of the recited bond, the plea, is good. (1 Saund. 117. n. 1. 1 Bos. and Pull. 688.) We are inclined to think the good sense and sound interpretation of the bond is according to the latter construction, and that the words, “ pay off and discharge” were thrown in, without being understood to require the defendant actually to pay off such bond.

This construction is much strengthened by th&,circumstance, that it appears from the recited bond that the dSfelskti&t was not the person who was to pay the duties. They were due from JSicc, with whom the plaintiff was bound. We are accordingly of opinion, that the defendant is entitled to judgment on the demurrer.

Judgment for the defendant.