Brown v. Clark

The opinion of the court was delivered by

The question in this case arises, whether the mere affirmance of the judgments reviewed, is a breach of the several recognizances which are stated in the declaration, when no intervening damages have been sustained, and no additional costs have been recovered. The statute provides that, on a review, a recognizance shall be given, “ conditioned that the party prosecute his review to “ effect, and answer and pay all intervening damages occasioned to " the adverse party by delay, with additional costs in case judgment “ be affirmed.” The construction which is to be given to this recognizance must be considered as having been settled by the former decisions of this court. The obligation is alternative in its character. The party reviewing must prosecute the same to effect, or pay intervening damages, and additional costs. The mere affirmance of the judgment reviewed, gives no right of action on the recognizance. It must also appear that intervening damages have been sustained, or additional costs recovered. In this particular, both counts in the declaration are defective. There is no averment in either count, that such damages have been sustained, or such costs recovered. In the cases of Green v. Shurtliff, 19 Vt. 592, *578Holmes v. Woodruff 20 Vt. 102, it was held, in an action on recognizances, containing similar conditions, that the defendant might plead a tender of the additional costs, and traverse the assignment of the breach for intervening damages. Such a plea would obviously be defective, as not being an answer to the whole declaration, if the recognizance was forfeited by a mere affirmance of the judgment. But as the plaintiff’s recovery was limited to those matters, a plea setting forth a sufficient answer to them, was a full answer to the whole declaration. The declaration is defective on this-demurrer, as it contains no statement of any matter that is a breach of the condition of these recognizances.

The judgment of the county court must be reversed, and judgment rendered1 for the defendant.