Douglass v. Clark

14 Johns. 177

Opinion

Per Curiam.

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.