Bank of the Metropolis v. Swann

2 F. Cas. 682, 4 Cranch 139, 4 D.C. 139

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: May 15, 1831
• Status: Published

Opinion

CRANCH, Chief Judge,

after stating the case, as aforesaid, delivered the opinion of

the court,

(THRUSTON, Circuit Judge, absent.)

This is a bond with a collateral condition. The obligors are not bound as they were in the recognizance of bail in error, required in England, by the statutes of 3 Jac. c. 8, and 16 & 17 Car. II. c. 8, and in the appeal-bond required by the Maryland statute of 1713, c. 4, “to satisfy and pay, (if the judgment be affirmed,) all and singular the debts, damages, and costs adjudged upon the former judgment, and all costs and damages to be also awarded for the same delaying of execution;” but the condition of this bond is simply to prosecute the appeal to effect, and answer all damages and costs, if the appellants shall fail to make their plea good. To prosecute their appeal to effect, and to make their plea good, are equivalent expressions. If the appellants fail to prosecute the appeal to effect, they fail to make their plea good, and vice versa. The obligation, then, is simply to answer all damages and costs, if the appellants shall fail to make their plea good. They are not to pay any specified sum—they are not absolutely bound, as under the English and the Maryland law, to pay and satisfy the original judgment, or even the damages and costs that may be awarded by the appellate court for the delay, but to answer such damages and costs as the appellee shall sustain or incur by their failing to make their plea good. Before the obligee can have a cause of action upon the bond against the obligors, by reason of the appellant’s not answering all damages and costs for failing to make their plea good, damages and costs must have been sustained and incurred, and must be ascertained and averred in the as--signment of the breach of the condition of the bond; for, in contemplation of law, that which is not averred, does not exist. In this declaration, no damages are averred to have been sustained by the obligees in consequence of the failure of the appellants to make their plea good, or to prosecute their appeal to effect. In the case of Tucker v. Lee, in this court, at May [December] term, 1829, [Case No. 14,221,] this objection, after argument and great deliberation, was adjudged to be fatal in that cause. In the present case, the judgment is not set forth, either directly, or by reference to any record, so that the court can see what was the nature of that judgment, and whether it was a judgment at law or a decree in equity. It is, indeed, called a “decree,” which in general, implies that it was in a suit in equity or admiralty; hut whether it was a decree for the specific execution of an agreement, or for a perpetual injunction, or whether it was against the appellants in their representative character, or personally, merely describing them as executors, does not appear; so that it is impossible for the court to ascertain, judicially, that the obligees have sustained any damages.

Nor does the declaration aver that the original decree in the court below, has not been performed and satisfied by the appellants; nor does it state what was the decree or judgment of the supreme court. These' appear to the court to be fatal objections to the declaration, and therefore it is not necessary to notice another objection stated fis a particular cause of demurrer; namely, that the bond binds only the assets of the testator, Robert Brent.

The judgment upon the demurrer must be for the defendant. The plaintiffs had leave to amend on payment of the costs of the amendment. This cause was afterwards settled by the parties.