Woodworth, J.
delivered the opinion of the Court.
This is an action of debt on the penalty of a bond, exe-* cuted by the defendants to the plaintiff, as Sheriff of the county of Jefferson, on the 20th of August, 1816.
The defendants all join in a plea; 1. Of non est factum. 2. After craving oyer of the condition of the bond, which is, “ that if Waldo shall well and duly perforin the office of deputy Sheriff in all things according to law, and shall render a just and true account of all business that shall come into his hands, as a deputy Sheriff ought to do, according to the best of his abilities, then the obligation to be void,” they say, the plaintiff has not been damnified.
To the second plea, the plaintiff filed three replications, assigning breaches in each. The defendants joined in six rejoinders to the' matters alleged in these replications; to which the plaintifl’ surrejoined, and tendered issues to the country. The defendants struck out the similiter to the 2d, 3d and 4th surrejoinders, and demurred specially; and the plaintiff joined in demurrer.
After the" defendants had rejoined, the defendant, Vaughan, severed, and interposed a separate rejoinder, alleging, that since the making of the bond, and since the committing of the supposed breaches, he had been, duly discharged under the act for giving "relief in cases of insolvency. The plaintiff demurred to this last rejoinder, and -the defendant. Vaughan, joined.
I will first examine whether this demurrer is well taken.
[160]*160The rejoinder by Vaughan is bad, because it is a depaiture from the plea in bar. After pleading that the plaintiff was not damnified, the defendant cannot rejoin confessing and avoiding the action. This position is supported by the uniform current of authority. (Co. Lit. 304. a. 2 Wils. 96. 4 Term Rep. 504. 2 Caines, 320. 3 Johns. Rep. 367. 16 Johns. Rep. 205.) Such departure is bad, in substance, and on general demurrer. (1 Wils. Rep. 122. 4 Term Rep. 504. 2 Wils. Rep. 96. 1 Chitty’s Pl. 623. 2 Saund. 84 a. n. 1.) The last case corrects that part of note 3, to 1 Saund. 117, in which it is said, that since the statute of 4 and 5 Anne, ch. 16, a departure is matter of form, and good, unless specially demurred to.
The rejoinder is, also, bad on other grounds. Vaughan having joined with the other defendants in the pleas in bar, and the first six rejoinders, has united his defence with theirs; and could not, afterwards, interpose a plea going to his personal discharge. (Smith v. Bouchier et al. 2 Str. 994. Schermerhorn v. Tripp, 2 Caines, 108.) In actions eac contractu, where there are several defendants, who join in their pleas, and a verdict is found against them, the plaintiff cannot enter a nolle prosequi against any of them, because, the contract being joint, the plaintiff is compellable to bring his action against all the parties; and he shall not, by entering a nolle prosequi, prevent the defendants, against whom the recovery has been had, from calling upon the other defendants for a rateable contribution. But if, in such actions, the defendants sever in their pleas, as where one pleads some plea, which goes to his personal discharge, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others. (1 Saund. 207. n. 2.) The case of Hartness v. Thompson and others, (5 Johns. Rep. 160.) is not opposed to this principle, but supports it. The action was on a joint and several promissory note; the defendants pleaded non assumpsit. At the trial, one of the defendants was permitted to prove infancy, and a verdict was taken in his favour, and for the plaintiff against the other defendants. This case was considered as falling within the reason of the distinction laid down in Noke and Chiswell v. Ingham, (1 Wils. 90.) [161]*161wher.e it was held, that where an action is brought against several parties to a joint contract, and one pleads.some plea, which goes to his personal discharge, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others. It is true, in the case of Hartness v. Thompson et al. the defendants all joined in the plea; but it will be seen, that proof of infancy was proper under the general issue, and in such a case, it is the same as if infancy had been pleaded; and so Mr. Justice Van Ness seems to consider it. He observes, “ when a suit is commenced against several joint debtors, upon ajoint contract, and one of them pleads or gives in evidence a matter which is a bar to the action, as against him only, and of which the others cannot take advantage $ as it respects them, there can be no good reason why the plaintiff should not be at liberty to proceed to take judgment against them.”
If issue had been taken on this plea, and found for the defendant, judgment must have been against the plaintiff for the whole, because all the defendants having united in the other pleas, although the plaintiff should obtain a verdict on those issues, he could not have judgment; for Vaughan, having succeeded on the issue, which went to his personal discharge, judgment could not be rendered against him on the other issues; and, as we have seen, it would not be competent for the plaintiff to enter a nolle prosequi against Vaughan, in the state in which these pleadings are, as might have been done, had Vaughan relied solely on his discharge, and pleaded that singly. The plea is bad, on another ground, because the plaintiff’s demand was not reduced to certainty, when Vaughan was discharged. The plea alleges, that after the committing of the supposed breaches by Waldo, Vaughan was discharged. It is true, Waldo had neglected to fulfil the condition of the. bond, and Andrus was liable to the parties in the suits; but the amount was not liquidated; it was uncertain, and consequently he could not come in as a creditor under the assignment.
This is like the case of bail, who had become fixed, and judgment recovered against them on the recognisance; the principal was then discharged; after this, the bail paid the money; and thereupon, brought an action against the princi[162]*162pal; and it was held, the debt was not made certain, until after tjle defendant’s1 discharge. The debt must be certain and fixed at the time of the insolvent’s assignment. (Buel v. Gordon, 6 Johns. Rep. 126. Frost v. Carter, 1 Johns. Cas. 73.)
On this demurrer, there must be judgment for the plaintiff.
The next inquiry will be as to the special demurrers taken by the defendants to the 2d, 3d and 4th surrejoinder? of the plaintiff. It is an established rule, that although the pleading demurred to be defective, the Court will give judgment against the party whose pleading was first defective in substance. It is contended by the plaintiff’s counsel, that the plea of non damnificatus is no answer to the declaration, and, therefore, void. If this be correct, it will be unnecessary to notice the subsequent pleadings.
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Woodworth, J.
delivered the opinion of the Court.
This is an action of debt on the penalty of a bond, exe-* cuted by the defendants to the plaintiff, as Sheriff of the county of Jefferson, on the 20th of August, 1816.
The defendants all join in a plea; 1. Of non est factum. 2. After craving oyer of the condition of the bond, which is, “ that if Waldo shall well and duly perforin the office of deputy Sheriff in all things according to law, and shall render a just and true account of all business that shall come into his hands, as a deputy Sheriff ought to do, according to the best of his abilities, then the obligation to be void,” they say, the plaintiff has not been damnified.
To the second plea, the plaintiff filed three replications, assigning breaches in each. The defendants joined in six rejoinders to the' matters alleged in these replications; to which the plaintifl’ surrejoined, and tendered issues to the country. The defendants struck out the similiter to the 2d, 3d and 4th surrejoinders, and demurred specially; and the plaintiff joined in demurrer.
After the" defendants had rejoined, the defendant, Vaughan, severed, and interposed a separate rejoinder, alleging, that since the making of the bond, and since the committing of the supposed breaches, he had been, duly discharged under the act for giving "relief in cases of insolvency. The plaintiff demurred to this last rejoinder, and -the defendant. Vaughan, joined.
I will first examine whether this demurrer is well taken.
[160]*160The rejoinder by Vaughan is bad, because it is a depaiture from the plea in bar. After pleading that the plaintiff was not damnified, the defendant cannot rejoin confessing and avoiding the action. This position is supported by the uniform current of authority. (Co. Lit. 304. a. 2 Wils. 96. 4 Term Rep. 504. 2 Caines, 320. 3 Johns. Rep. 367. 16 Johns. Rep. 205.) Such departure is bad, in substance, and on general demurrer. (1 Wils. Rep. 122. 4 Term Rep. 504. 2 Wils. Rep. 96. 1 Chitty’s Pl. 623. 2 Saund. 84 a. n. 1.) The last case corrects that part of note 3, to 1 Saund. 117, in which it is said, that since the statute of 4 and 5 Anne, ch. 16, a departure is matter of form, and good, unless specially demurred to.
The rejoinder is, also, bad on other grounds. Vaughan having joined with the other defendants in the pleas in bar, and the first six rejoinders, has united his defence with theirs; and could not, afterwards, interpose a plea going to his personal discharge. (Smith v. Bouchier et al. 2 Str. 994. Schermerhorn v. Tripp, 2 Caines, 108.) In actions eac contractu, where there are several defendants, who join in their pleas, and a verdict is found against them, the plaintiff cannot enter a nolle prosequi against any of them, because, the contract being joint, the plaintiff is compellable to bring his action against all the parties; and he shall not, by entering a nolle prosequi, prevent the defendants, against whom the recovery has been had, from calling upon the other defendants for a rateable contribution. But if, in such actions, the defendants sever in their pleas, as where one pleads some plea, which goes to his personal discharge, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others. (1 Saund. 207. n. 2.) The case of Hartness v. Thompson and others, (5 Johns. Rep. 160.) is not opposed to this principle, but supports it. The action was on a joint and several promissory note; the defendants pleaded non assumpsit. At the trial, one of the defendants was permitted to prove infancy, and a verdict was taken in his favour, and for the plaintiff against the other defendants. This case was considered as falling within the reason of the distinction laid down in Noke and Chiswell v. Ingham, (1 Wils. 90.) [161]*161wher.e it was held, that where an action is brought against several parties to a joint contract, and one pleads.some plea, which goes to his personal discharge, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others. It is true, in the case of Hartness v. Thompson et al. the defendants all joined in the plea; but it will be seen, that proof of infancy was proper under the general issue, and in such a case, it is the same as if infancy had been pleaded; and so Mr. Justice Van Ness seems to consider it. He observes, “ when a suit is commenced against several joint debtors, upon ajoint contract, and one of them pleads or gives in evidence a matter which is a bar to the action, as against him only, and of which the others cannot take advantage $ as it respects them, there can be no good reason why the plaintiff should not be at liberty to proceed to take judgment against them.”
If issue had been taken on this plea, and found for the defendant, judgment must have been against the plaintiff for the whole, because all the defendants having united in the other pleas, although the plaintiff should obtain a verdict on those issues, he could not have judgment; for Vaughan, having succeeded on the issue, which went to his personal discharge, judgment could not be rendered against him on the other issues; and, as we have seen, it would not be competent for the plaintiff to enter a nolle prosequi against Vaughan, in the state in which these pleadings are, as might have been done, had Vaughan relied solely on his discharge, and pleaded that singly. The plea is bad, on another ground, because the plaintiff’s demand was not reduced to certainty, when Vaughan was discharged. The plea alleges, that after the committing of the supposed breaches by Waldo, Vaughan was discharged. It is true, Waldo had neglected to fulfil the condition of the. bond, and Andrus was liable to the parties in the suits; but the amount was not liquidated; it was uncertain, and consequently he could not come in as a creditor under the assignment.
This is like the case of bail, who had become fixed, and judgment recovered against them on the recognisance; the principal was then discharged; after this, the bail paid the money; and thereupon, brought an action against the princi[162]*162pal; and it was held, the debt was not made certain, until after tjle defendant’s1 discharge. The debt must be certain and fixed at the time of the insolvent’s assignment. (Buel v. Gordon, 6 Johns. Rep. 126. Frost v. Carter, 1 Johns. Cas. 73.)
On this demurrer, there must be judgment for the plaintiff.
The next inquiry will be as to the special demurrers taken by the defendants to the 2d, 3d and 4th surrejoinder? of the plaintiff. It is an established rule, that although the pleading demurred to be defective, the Court will give judgment against the party whose pleading was first defective in substance. It is contended by the plaintiff’s counsel, that the plea of non damnificatus is no answer to the declaration, and, therefore, void. If this be correct, it will be unnecessary to notice the subsequent pleadings.
It appears to be settled, that in all cases of conditions to indemnify and save harmless, the proper plea is non damnificatus ; and if there be any damage, the plaintiff must reply it. (1 Saund. 117. n. 1. and the authorities there collected.) So, also, where all the matters to be performed are in the affirmative, it is sufficient for the defendant to plead a performance generally; and it must come from the other side to show a breach committed by the defendant. (2 Saund. 411. n. 3.) But where the condition of a bond consists of several particular things to be performed by the obligor, he cannot plead a general performance, but must set forth particularly, in his plea, how he hath performed each particular thing. (1 Saund. 117. 1 Sid. 215. 1 Lev. 303. Cro. Jac. 359.)
The bond, in this case, is not technically a bond of indemnity, although intended as such. The condition is to perform two things: first, well and duly to perform the office of deputy Sheriff; and, second, to render a just and true account of all business that shall come into his hands, as a deputy Sheriff ought to do. In Woods v. Rowan and Coon, (5 Johns. Rep. 42.) the condition of the bond was, that Rowan should remain a true and faithful prisoner, and not depart or go without the limits of the gaol, until discharged by due course of law. The defendants pleaded, that the bond was made for the indemnity of the plaintiff, [163]*163and that the plaintiff had been indemnified by the defendants. To this plea, there was a general demurrer. The Court held, that it was no answer to the action to say, that the plaintiff is not damnified, for the condition is to remain a faithful prisoner, and not depart the liberties ; the moment he does so, the bond is broken, and a cause of action accrues on the penalty. How much the plaintiff shall recover, is a distinct question. The same answer may be given to the plea of the defendants. The bond is broken, if the deputy does not well and duly perform the office, or if he shall not render a just and true account; for this the plaintiff would be entitled to recover nominal damages, although he may not actually have been made liable by suit, or been obliged to satisfy the persons whose business had been neglected by Waldo, as deputy. It is sufficient that the plaintiff was entitled to judgment against the defendants for a non-performance of the condition. The plea of non damnijicatus is, substantially, that the plaintiff has not been made liable to" third persons for any neglect of Waldo ; and, as the plaintiff’s action is sustainable, without showing this, it follows, that the plea is bad, and no answer to the declaration; and, on that ground, being matter of substance, the plaintiff is entitled to judgment on the demurrers, to the 2d, 3d and 4th surrejoinders. (Holmes v. Rhodes, 1 Bos. and Pull. 638.)
But, admitting the plea to be good, the rejoinders preceding the demurrers taken by the defendants, are bad, being a departure from the plea in bar. A departure is defined to be, when a party quits one defence, which he has first made, and has recourse to another. It is when the second plea does not contain matter pursuant to the first, and does not support and fortify it. (Co. Lit. 304 a. 2 Saund. 84. n. 1.) It is also settled, that a departure in pleading is matter of substance, and bad upon general demurrer. (2 Wils. 96. 1 Wils. 122. 4 Term Rep. 504. 2 Saund. 84. n. 1.) c
The rejoinders fall within this definition; for the plea rests the defence, on the ground that the plaintiff has not been damnified. The rejoinders set out facts which place the defence on a different ground; that is to say, admitting that the plaintiff has been damnified, yet he has no legal claim against the defendants to be indemnified : It is [164]*164confessing and avoiding the action, which is inadmissible. 'phjg vjew 0f rejoinders, to which the plaintiff has surrejoined, and the defendants demurred, if correctly taken, disposes of the demurrers, however defective the surrejoinders may be. There are, however, other objections, which apply to the rejoinders, separately. The second rejoinder avers, that Waldo was removed from the office of deputy Sheriff by the plaintiff, but does not allege that the discharge was under seal. I apprehend a discharge by parol would be a nullity; this was so decided in the case of The People v. Andrus, on an attachment, in May term, 1819.
In Van Antwerp v. Stuart, (8 Johns. Rep. 125.) in an action of debt, on an arbitration bond, the defendant pleaded no award. The plaintiff replied, that the defendant revoked the submission ; but did not state, that the revocation was under seal. The plaintiff demurred generally; and the replication was held bad, in not stating the revocation to be under seal, and that the Court could not intend it. (1 Saund. 291. n. 1.)
The rejoinder to the second replication is, that Warren Kent became bail, and executed a bail bond; that Kent had sufficient property at the time, within the county, to answer, and was good and responsible. The fourth surrejoinder answers this, and the defendants demur. I think the rejoinder bad, according to Stevens v. Boyce and Daley, (9 Johns. Rep. 292.) in which it was held, that on a bond to the Sheriff to indemnify and save harmless, the defendant, by the bond, assumed every risk which the law attached to the execution of process, one of which was the continued responsibility of the bail to the arrest. This material averment is omitted. The plea does not aver, that special bail was put in and perfected. Nothing can be a performance of the condition of the bail bond, but putting in and perfecting special bail. (5 Burr. 2683.) The bail bond is for the indemnity of the Sheriff. As nothing but putting in and perfecting special bail, will answer the condition of the bail bond, nothing else will excuse the Sheriff. His deputy is answerable over to him in like manner. Waldo, therefore, is liable, there being no averment that special bail had been perfected.
[165]*165In the next place, I will consider the surrejoinders of the plaintiff, to which the defendants have demurred specially, In the first replication, the plaintiff avers, that after ma» king the bond, and while Waldo was deputy Sheriff under the plaintiff, there was intrusted to him, as such deputy Sheriff, a writ of fi. fa. in favour of Paul Cushman against Polydore Seymour and Roswel P. Hayes ; and that, through the negligence and default of Waldo, in not duly returning the writ, the plaintiff had been forced to pay a large sum of money. The defendants rejoin, that before the issuing of the writ, on the 15th of January, 1817, Waldo was removed from the office of deputy by the plaintiff 5 that the writ of fi. fa. was tested on the 17th of May, 1817, and did not come to Waldo's hands until after he was removed, to wit, on the 29th of May, 1817. The plaintiff surrejoins, that the writ of fi. fa. was committed to the care and directions of Waldo, while he continued to exercise the duties of the office of deputy Sheriff, and was deputy Sheriff under the plaintiff. To this the defendants demurred specially, and assigned, among other things, for cause, that the plaintiff does not confess and avoid, or traverse and deny, the facts in the rejoinder set forth, but joins issue on an immaterial fact.
It appears to me, that the demurrer is not well taken; for the allegation in the rejoinder substantially is, that he was not a deputy when he received the writ: if he had been removed from office, he was no longer a deputy. The surrejoinder puts in issue the fact; for it alleges that the fi. fa. was confided to Waldo while he was deputy Sheriff under the plaintiff, and, therefore, concludes properly to the country. On the trial, it would be competent for the defendants to prove the fact, that Wa Ido had been removed previously 5 and, if made out, it would have entitled the defendants to a verdict on this issue. " A replication, at once denying the particular fact intended to be put in issue, and concluding to the country, without any preamble, and without a formal traverse, frequently occurs in practice, and, on account of its conciseness, should, when practicable, be adopted.” (1 Chit. Pl. 592.) The same rule is recognised by Justice Ashhurst. (2 Term Rep. 442.) If a plea [166]*166answers the matter which is the gist of the action, it is sufficient. (1 Saund. Rep. 28. note 3. 2 Term Rep. 297. 3 Wils. Rep. 20.) The fact on which issue is taken, is a material fact; and, if found for the defendants, would determine the merits of the cause.
Another breach in the replication is, that while Waldo was deputy Sheriff under the plaintiff, there was intrusted to his care, three writs offi. fa. in favour of Benjamin Pratt, which, by reason of the negligence and default of Waldo, were not duly returned, and that attachments were issued against the plaintiff, as Sheriff; by reason of which, he was obliged to pay a large sum of money, stating the amount: Rejoinder, that Waldo received the several writs of fi. fa. previous to the making the writing obligatory, and while Waldo was a deputy Sheriff, by virtue of a previous appointment : Surrejoinder, that the writs were committed to Waldo while he was acting as deputy Sheriff, and was deputy Sheriff under the plaintiff, and that the moneys were collected by Waldo while acting as such deputy Sheriff under the plaintiff, after the execution of the bond in the plaintiff’s declaration : to this there is a special demurrer, setting out several causes. This demurrer is well taken. The bond does not extend to writs committed to Waldo previous to its execution, or to any acts of his in relation to such writs, subsequent to the execution of the bond. It is, and was intended to be prospective. The surrejoinder does not answer a materia] allegation set out in the rejoinder, but evidently evades it, and sets out immaterial matters; in this, that Waldo was a deputy when he received the writs, and collected the money after the execution of the bond. This may be all true, but is no answer to the defence, which rests on the fact, that Waldo received the writs under a previous appointment, before the defendants became sureties. The plaintiff was bound to take issue on it; and not having done so, the defendants had cause of demurrer.
A further breach assigned in the replication is, that Waldo received a capias ad respondendum, issued out of this Court, against Elam Wilber in favour of the New-Wartford, Manufacturing Society, and arrested Wilber, and took a bail bond, executed by Warren Kent and Wilber, condi[167]*167tioned for his appearance, according to the rules and prae= tice of the Court, by filing special bail; that Kent was, and did become insolvent; that no bail was filed; by means whereof, the plaintiff was obliged to pay the amount ascertained to be due from Wilber, on an attachment: Rejoinder, that Waldo arrested Wilber, and took bail for his appearance ; that Warren Kent became bail, and executed a bail bond, and that Kent had sufficient at the time within the county, to answer according to the exigency of the writ, and was good and responsible : Surrejoinder, that Warren Kent was, and did become insolvent, and wholly insufficient, and, through the negligence of Waldo, no bail was filed. To this surrejoinder the defendants demurred specially, because the plaintiff has not confessed or avoided the fact, that Kent had sufficient property, and was good; and because the plaintiff alleges, that, by the negligence of Waldo, no bail was filed, which is a departure from the cause of action assigned in the replication, and because it introduces new matter, and concludes to the country. The demurrer is not well taken. As to the first cause, it may be observed, that the allegation in the rejoinder, that Kent, at the time he executed the bail bond, had sufficient, was irrelevant and immaterial j the plaintiff, therefore, properly took issue on the most material fact alleged; that is to say, that Kent was good and responsible, by averring that Kent was and did become insolvent, and was wholly insufficient, which corresponds with the allegation in the replication, and is not a departure. Although the plaintiff might have demurred for the insufficiency of the rejoinder in substance, he might elect to waive that, and take issue on the most material point alleged by the defendants, without giving cause for a special demurrer.
The residue of the surrejoinder, which is, that through the negligence and default of Waldo, no bail was filed, is not a departure; for it does not quit the ground taken in the replication, but supports and fortifies it; neither does it allege new matter which required a verification. The defendants allege this for special cause, but'have not pointed out in what the new matter consists. It is not, therefore, well assigned. (2 Johns. Rep. 429.)
[168]*168On a review of this case, I am of opinion, that the de» murrers 0f the defendants to the second and fourth surrejoinders, must be overruled, and that the demurrer to the third surrejoinder is well taken. But, as the rejoinders are bad in substance, and the plea of non damnificatus cannot be supported, the plaintiff is entitled to judgment.
Judgment for the plaintiff.