Benjamin v. Delahay

¶1delivered the opinion of the Court: (1)

¶2This was an action of covenant brought on a bond for the payment of money.

¶3The bond is set out, in /tree verba, in both counts of the declaration. ■

¶4Previous to the trial in the Court below, the defendant moved the Court for a continuance of the cause, on the ground that no copy of the bond sued on had been filed. The motion was overruled, a trial had, and judgment rendered for the plaintiff.

¶5The defendant now assigns for error the decision of the Court in overruling the motion for a continuance.

¶6The sixth section of the practice act requires the plaintiff to file with his declaration, a copy of the instrument on which suit is brought, ten days before the Court, at which the process is returnable; and in default thereof, the Court shall continue the cause, on the application of the defendant, at the costs of the plaintiff. (2)

¶7The object of this requisition is, that the defendant may be notified of the particular demand sought to be recovered.

¶8The Court is of the opinion, that that object is as fully attained by a literal description of the instrument in the declaration, as by the filing of a detached copy; and that in this case the statute has been substantially complied with.

¶9The judgment is therefore affirmed, with costs.

¶10Judgment affirmed.

¶11Note. See The People v. Pearson, 1 Scam. 458, 473.