Lorick v. Richardson

Decided May 15, 1821

Supreme Court of South Carolina · decided 1821-05-15

Newberry — Fall Term, 1820. Tried before Mn Justice Gantt. fin A HIS was an action of debt, on a bond given by the defendant, an attaching creditor, to the plaintiff’s garnishee, to indemnify him against any claims which might be made by the absent debtor, upon him for a note of hand belong» ing to the debtor, which he the plaintiff gave up to the defendant. The defendant pleaded performance.

Decided 1821-05-15

Mr. Justice Richardson

¶1delivered the opinion of the court.

¶2The question submitted is,was the replication a departure from ther court?

¶3f 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.)

¶4The 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.

Justices Nott, Johnson, Cdlcock and Huger, concurred-;.