delivered the opinion of the court.

The question submitted is,was the replication a departure from ther court?

f Departure,Js,, wnen a replication contains subsequent matter'which d tie s'1 not fortify the matter in the declaration. (Co. Lit., 303, b. 1 Chitty, 618.)

The count is upon a bond to hold the plaintiff harmless against the claims of a named person; and the replication is, that a different person recovered against the plaintiff. This replication, if true, is yet no breach of the bond, and does not maintain the first allegation, that the defendant was to indemnify the plaintiff against the claims of a specified person. The departure, therefore, is plain, and the motion granted.