Page:Federal Reporter, 1st Series, Volume 3.djvu/445

 418 VSDBBAL BBTOBTKBt �forther, ire wîll order s consolidation of the two causes, which I think should bave been brought togetber, as tbey ar« «gainst the same parties, and the second bond is onlj ad» ditional security for the damage growing out of the same suit. Tfae order consolidating the two cases, I think, should be made first, and then the demurrer sustained to the declara- tion. Therefore, if the plaintiff wishes to amend, or thinks he can amend so as to make a better declaration on the facts •f the case, we should feel disposed to allow it. I will say, feankly, we would liko, îf we could, to so construe the obliga- tions of the bond as to effect the purposes for which it was given, but the authorities which are cited seem to be controll- ing, and I do not see how we oan do otherwise than to sus- tain the demurrer. �An order will be made that the causes be consolidated pre- eeding the disposition of the demurrer, so that error eau be aesigned upon that question. �DSOISION OH DBIfUBBEB TO AHBNDBO DEOLAIUTIOS. (July 13, 1880.) �BiiODOBTT, D. J. Thia case is before me on demurrer to Ml amended declaration, and it is not necessary that I should rehearse to counsel the points that bave been raised in the ease. It is enough to say that I do not see that, in the amended declaration, any such change bas been made as will ftlter the finding of the court heretofore on demurrer to the original declaration. I still adhere to the conviction that I must be govemed by the case of Bein v. Heath, 12 How. 168. �It is true, there is a wide conflict of authority between the state courts upon the questions raised on this demurrer. I find that in many of the state courts the rule is held that a suit at law can be maintained upon a bond of this kind, not- withstanding no assessment of damages had been made by the court — no award of damages — ^while in other states, as in Kentucky and Maryland, the eontrary has been decided. The Buthorities of Illinois are, perhaps, .with the plaintiff in this ease; but the better authorities, and the authorities of sey- ����