Hoadley v. Roush

3 W. Va. 280

• Court: West Virginia Supreme Court
• Decided: January 15, 1869
• Status: Published

Opinion

Maxwell, J.

The first ground of error, assigned is in, overruling the demurrer to plea No. 2.

Plea No. 2 is a plea of non damnifieatus.

The condition, of the'bond on which the suit was founded was that, “if the said Roush shall pay all costs and damages which may be awarded against him, or sustained by any person by reason of his suing out said attachment, then the above obligation to be void, otherwise to remain in full force.”

This condition is the same thing as a condition to indemnify and save harmless, and in such case the plea of non damnifieatus is the recognized mode of defence. 1 Chitty Pl., p. 520; 3 Ibid, 9, 84, 5; Cutler vs. Southern, 1 Saunders’ Rep., 116; Cox vs. Joseph, 5 Term Rep., 309, 310; Hulland vs. Malken, 2 Wilson, 126.

The plea is therefore good and the demurrer was very properly overruled.

The second ground of error assigned is in overruling the objection to the filing and reception of plea No. 3, and allowing the same to be filed, and third, in overruling the demurrer to plea No. 3, and for other reasons apparent upon the face of the record.

I am unable to'see any reason why pleaNo. 8 should, have been rejected. It is in substance a good plea and was properly filed. The demurrer taken to it was properly overruled. The plea is substantially in the form found in 3 Chitty Pl., p. 985.

It seems to me there is no error in the record, and that the judgment complained of will have to be affirmed, with damages and costs to the defendant in error.

The other judges concurred.

Judgment aeeirmed.