BOTTS et al. VS. BRIDGES, Judge, &c., 4 Port. 274

HOPKINS, C. J. — The action in this case is debt upon a penal bond, made by the plaintiffs in error, to Bridges, the Judge of the County Court of Wilcox county, to enable George W. Botts, one of the obli-gors, to obtain a license to keep a public ferry on the Alabama id ver. The suit is in the name of the judge, to whom the bond was made, for the use of Wiley Rogers.- In the declaration ■ the condition of the bond is set out, and three breaches of it are assigned. The declaration also contains an averment of matter, intended as an excuse for the omission of profert of the bond.

The plaintiffs in error demurred to the declaration, and separately to each assignment of the breaches. The right to demur to each of several counts, is clear ; and the principle upon which it is founded, au-thorises a demurrer to each of the assignments. The demurrers were overruled by the Court below ; and upon a plea which was afterwards filed, there were a verdict and judgment against the obligors.

The first question presented by the assignment of errors here, is, whether the omission of profert, is a defect, for which, the judgment of the Court upon the demurrer, ought to have been in favor of the plaintiffs in error'? Upon the construction of our statute of amendments, it was held by this Court, in 1822, that an objection for such an omission could be made on a special demurrer only. In one thousand eight hundred and twenty-six, this construction of the statute »was [approved and acted upon by the Court. None of the cases cited, shew that the point has ever been decided differently here.

The’’ construction ought to be considered settled; and we are the less inclined to inquire into its correctness, because the seventh rule, established by this Court, in 1830, for the regulation of the practice in the Circuit and County Courts, gives the defendant, in any such Court, a right to oyer of any instrument, which is thej! foundation of the action against him. This right must be allowed, as we understand the rule, whether aprofertbe made or omitted in the declaration. By a statute passed in 1824, it was enacted, that no demurrer shall have any other effect than that of a general demurrer.

As there is no mode now in which a party can raise any question for an omission, in a declaration, of profert — such an omission is without any legal effect. Of the other questions argued at the bar, two were 1st. Whether the condition of the bond is such as the act prescribed, which authorised the Judge of the County Court to take the bond. 2d. If the condition enlarged the liability of the obligors, whether the bond is wholly void, or void only for any excess of liability beyond that which the statute required to be created by the execution of the bond.

The act which authorises such bonds to be taken, provides, that the condition of them shall be, that the person to whom a license to keep ,a public ferry is granted, “ will constantly provide and keep a good and sufficient boat or boats ; also keep the banks on each side of the water course in good repair, and that the ferry shall, be well attended for travellers or other persons to carry or pass their horses, carriages or effects, over such river or water-course.” The conclusion to which we have come on the first of the last two questious that we have mentioned, will render it unnecessary to decide the last of the two.

An objection has been made to that part of the condition, which required Botts to keep good and sufficient boats. The condition prescribed by the act, is, that the keeper of a public ferry shall keep a good and sufficient boat or boats.

Upon the condition set out in the declaration there could be no recovery on the bond, for the failure to keep two boats, uqless the injury alleged could have been prevented by having that number at the ferry instead of one, and a condition in the words prescribed by the act would be broken, if it could'be proved that the loss in such a case could have been avoided, had there been two sufficient boats at the ferry. The legal effect of the condition in this respect, as set out, and as it has been prescribed by law, is the same.

It has been contended, that another part of the condition set out in the declaration, and upon which the second breach was assigned, is an excess beyond the condition required by law.

This part of the condition is, “ that Botts shall do and perform generally all matters and things required by the laws of the State, in such cases made and provided to be done and performed by the keepers of public ferries, for and during the time he may keep his ferry.” The breach assigned on this part of the condition is, that the injury alleged in the declaration was the result of the negligence of Botts and his servants, in the' management of the ferry, while they were carrying the property of Rodgers across the ferry.

The argument in support of the objection to this part of the condition, was, that it would make the obligors liable for any loss sustained by a person, in crossing' the ferry, which was not the result of inevitable ae--cident, or of

an act of a bublic enemy of the country. If such would be its effect, this part of the condition would be void, and the bond also, at least pro1 tanto. Botts was bound by this condition, to do such things only, as the laws made in such cases, required of the keepers of public ferries. The keepers of public ferries are required by the laws, as such keepers, to keep the banks of the river, at their respective ferries, in repair, to provide a sufficient boat or boats, and to attend their ferries well. For any failure to do these things, they and their securities may be liable upon their bonds.

But their liability for losses, not caused by a breach of the lawful condition of their bonds, can not be legally claimed upon their bonds. A responsibility for injuries for any other cause, would be upon them, not as keeper's of public ferries, but as common carriers ; and, in such a responsibility their sureties would not share. This part of the condition did not, we think, increase the duties of Botts, as a keeper of a public ferry, or enlarge the legal effect of the condition required by the statute.

K J The last objection made to the declaration, is, that the breach in the third assignment is alleged to have consisted in the negligence of Botts and his servants, in keeping and managing the ferry, from which negligence the property of Rogers was wholly lost, while they were carrying it across the ferry. That such negligence, and consequent damage, were a breach of that part of the condition which required the ferry to be well attended, we do not doubt.

Negligence in the keeper of the ferry or his servants, in conducting the boat with the property of Rogers on board, was want of the attention required by the lawful condition of the bond. The other questions, of which we have to take notice, are, 1st, that the verdict is defective, in not finding the debt, as well as assessing damages; 2nd, that the judgment is erroneous, in being for the damages only, which the jury had assessed.

For any recovery upon a bond of a keeper of a public ferry, the act of eighteen hundred and twenty-one, directs such a judgment to be rendered, as the one in this case, aud there is no defect in the verdict, for not finding that, for which there ought not to have been a judgment. As this act, as well as that of eighteen hundred and twenty-four, which is a copy of the statute of 8 and 9 W. 3, for the regulation of the proceedings in actions upon bonds with ■ collateral conditions, are both contained in Aikin’s Digest, which has been established by law, each of the statutes must be allowed some effect.

To give the act of eighteen hundred and twenty-one the effect which we ascribe to it in this case, will limit but little, the operation of the act of eighteen hundred twenty-four. Let the judgment be affirmed. £Ia,RePs tib. 123 Aik. Dig. 363 3stew.r ■109,427. Hik. Dig. 304