Van Benthuysen v. De Witt
New York Supreme Court
THIS case came before the court, on the return to a writ of error, from the common pleas of Dutchess county. The suit below was on a bond given by the plaintiffs in error, to the defendants, as overseers of the poor of Rhynebeck, to indemnify the town against the maintenance of a bastard child. The defendants below pleaded, 1. Non est factum, and 2. Performance of the condition. The plaintiffs replied, setting forth a breach, and issue was joined thereon.
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THIS case came before the court, on the return to a writ of error, from the common pleas of Dutchess county. The suit below was on a bond given by the plaintiffs in error, to the defendants, as overseers of the poor of Rhynebeck, to indemnify the town against the maintenance of a bastard child. The defendants below pleaded, 1. Non est factum, and 2. Performance of the condition. The plaintiffs replied, setting forth a breach, and issue was joined thereon. The verdict was taken upon the first issue only, by which the jury found that the bond was the deed of the defendants, and they assessed…
1Per curiam
In suits on bonds for the performance of covenants, it is compulsory on the plaintiff to assign breaches, and have his damages assessed. (2 Caines, 329.) And when breaches are assigned, the jury at the trial must assess damages for such breaches as the plaintiff shall prove to have been broken, otherwise the verdict is erroneous, and a venire de novo will be awarded. This was so held in the case of Drage v. Brand, (2 Wils. 377.) where the jury having found that the defendant owed the debt, and having omitted to assess damages for the breach assigned, a venire de novo was awarded. In Hardy v.…
2Cases cited1 opinion
- Williams v. DelafieldNew York Supreme Court · 1805
3Cited by4 opinions
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