Laws

State v Littlefield, 4 Post Date: Sun, 27 Jul 2008 22:14:18 +0000
Julliand z/ Burgott, II John S ( N Y) 6 Building Contra Ct In an action for breach of a bond to build according to a plan and specifications, an averment merely negativing the performance, in the words of the contract, is insuf- ficient. Enough of the plan and specifications should be stated to show, in connection with proper averments, in what particular the bond was broke N Cooney v Winants, 19 Wen d ( N Y) 504 Justice's Bon d In a declaration on the bond of a justice, it is not sufficient assignment of a breach to state, gen- erally, that the justice had not faith- fully discharged his duty; the breach of some particular duty of which plaintiff has a right to complain must be set out. State v Littlefield, 4 Blackf (Ind) 129 To Honor Draft.

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Anderson v Dickson, 8 Ala Post Date: Sun, 27 Jul 2008 21:57:25 +0000
On a bond to honor a draft drawn on several persons, a breach that defendant did not honor a draft on one of them is ba d Glover v Tuck, r Hill ( N Y) 66 Showing Dat e Where a breach gives no date to regulate the assessment of damages, it is not well assigned, though it negatives the words of the condition of a bon d People v Rus- sel, 4 Wen d ( N Y) 570 Sheriff's Bon d In an action on a sheriff's bond, assigning as a breach that he did not well and faithfully ex- ecute, etc, is not enoug H A specific breach should be show N People v Brush, 6 Wen d ( N Y) 454 Details and Account S But in the specific assignment of the breach, the rule that a general mode of pleading is allowed where great prolixity is thereby avoided, obtains in cases where the breach is attended with details and items of account; the details and items need not be state d 1 b DESIGNATION OF BREAC H Care must be taken to assign the matter constituting the real breach of the bond ; the manner in which the bond was broken is of vital importance in the assign- ment of breache S 2 1 In an action on a bond, condi- tioned that W W, who was appointed agent of a regiment, should pay all such sum and sums of money as he should receive from the paymaster- general for the use of the regiment, and faithfully account to and in- demnify the plaintiff, the defendant pleaded a general performance, and that the plaintiff was not damnifie d The plaintiff replied that W W re- ceived from the paymaster-general, for the use of the said regiment, sev- eral sums of money, amounting in the whole to fourteen hundred pounds, for and on account of the said regi- ment, and of the commissioned and noncommissioned officers and soldiers of the same, according to their re- spective proportions, and that he had not paid a great part thereof among the colonel, officers, and soldiers, ac- cording to the several proportions of their pa Y Upon demurrer, the court said that " there was no need to spin out the proceedings to a great pro- lixity by entering into the details and stating the various deductions out of the whole pay, upon various accounts and in different proportion S" Corn- wallis v Savery, 2 BurR772 So, in debt on a bond, conditioned that R S should render to the plain- tiff a just account, and make payment and delivery of all moneys, bills, etc, which he should receive as his agent, the defendant pleaded performanc e The plaintiff replied that R S re- ceived, as such agent, divers sums of money, amounting to two thousand pounds, belonging to the plaintiff's business, and had neither rendered a just account, nor made payment and delivery of the said sum, or any part thereof The defendant demurred specially, assigning for cause that it did not appear by the replication from whom, or in what manner, or in what proportions, the said sums of money, amounting to two thousand pounds, had been receive d But the court held the replication " agreeable to the rules of law and precedent S" Shum v Farrington, iB " P 640; Barton v Webb, 8 T R459 In an action on a cashier's bond, con- ditioned for his faithfulness, it is suf- ficient to assign as a breach that he had received divers sums of money for which he had not accounted, with- out specifying from whom they were receive d Morris Canal, etc, Co v Van Vorst, 23 N J L 98 It is not necessary that the breach assigned should negative the perform- ance of the defendant's contract in toto; if it has been performed in part, it is enough to aver a nonperform- ance as to the residu e Watts v Shep- pard, 2 Ala 425 The petition should set out the facts fully enough to enable the court, upon the admission of the facts set forth, to grant the relief sought. Leas v White, 15 Iowa 187 Compare Schuy- ler v Chittenden, 47 Mo 65; Brown v Stebbins, 4 Hill ( N Y) 154; Watts v Sheppard, 2 Ala 425; Phillips v Governor, 2 Ark 382 2 Alabama Governor v Wiley, 14 Ala 172; Herndon v Forney, 4 Ala Arkansa S M'Laughlin v Hutch- ins, 3* Ark 207; Lincoln v Beebe, u Ark 698 Illinoi S Dupuie v M'Causland, i 111 App 395 Indiana Eldridge v Yantes, 6 Blackf (Ind) 72; Doe v Daniels, 6 Blackf (Ind) 8; Kidwell v State, 45 Ind 27; State v Bennett, 24 Ind 383; State v Votaw, 8 Blackf (Ind) 2 Marylan d Martin v Garrett, 7 HaR J (Md) 272; Union Bank v Ridgely, iHar g (Md) 324 New York Brown v Stebbins, 4 Hill( N Y) 154- South Carolina State v Scheper, C IMMATERIAL ALLEGATION S The breach of the condition of a bond, otherwise well assigned, is not vitiated by the super- addition of immaterial allegation S 1 d SEVERAL BREACHE S Before the Stat8 9 W M II I, C u, 8, a plaintiff could assign one breach only upon a bond or penal sum, for the performance of covenants ; for if he assigned several breaches the declaration was bad for duplicity, because the bond was forfeited by the breach of one covenant as much as of several covenant S After the passage of that statute the plain- tiff was compelled to assign all the breaches for which he in- tended to recover damage S* 33 S Car 562; State v Seabrook, 31 S Car 605 West VirginiaAccident In S Co v Baker, 34 W Va 667 Englan d Serra v Wright, 6 Taunt 45; Belfast Banking Co v Hamilton, L R, 12 IR105 Arbitration Bon d Where the powers of arbitrators are revoked, the assign- ment of the breach of the bond for performance of an award should be the revocation and not the nonperform- ance of the awar d Frets v Frets, i Co W ( N Y) 335 See Van Antwerp v Stewart, 8 John S ( N Y) 125; Welch v Ireland, 6 East 613 Attachment Bon d In assigning the breaches, in an action on an attach- ment bond, if the damages alleged to have been sustained exceed the pen- alty of the bond, it is proper to assign the nonpayment of the penalty; if they do not amount to as large a sum as the penalty, then the breach will be the nonpayment of the damages actually sustaine d Hill v Rushing, 4 Ala 212 Detinue Bon d The only breach nec- essary to be assigned, in a suit upon the bond which the plaintiff in detinue is required to execute, upon suing out a writ, is the failure of the plaintiff in the suit. Anderson v Dickson, 8 Ala Bond against Incumbranc e On a bond " to free land from all incum- brances " the assignment should show an incumbranc e Julliand v Burgott, ii John S ( N Y) 6; Thomas v Van Ness, 4 Wen d ( N Y) 549; People v Russell, 4 Wen d ( N Y) 570 Bond for Dee d A bond to give a good and sufficient warranty deed of land is not a contract to convey a good title, and therefore it is not a good assignment of a breach to allege that the defendant had not a legal and valid titl e Tinney v Ashley, 15 Pic K (Mas S) 546 Fact Admitte d It is not necessary to assign as a breach any fact which is admitted by the bond itself An- derson v Dickson, 8 Ala 733 Arrest of Judgment.

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, that the defendant did not Post Date: Sun, 27 Jul 2008 21:39:17 +0000
When an in- sufficient breach is alleged in reply to a plea of performance, and issue is joined thereon, judgment will be ar- rested, though the verdict be for the plaintiff Judge v Briggs, 5 N H 66 But an execution will not be set aside for a mere informality of the verdict in referring the damages to the de- tention of the debt, instead of assess- ing them for the breache S Upde- groff v Judges, 3 Co W ( N Y) 31 1 Van Voorst v Morris Canal, etc, Co, 2f N J L 200; Jones v Hur- baugh, 5 N Y Le g Ob S 19; Post- master -Gen'l v Cochran, 2 John S ( N Y)4i3; Hughes v Smith, 5 John S ( N Y) 168; Stothert v Goodfellow, I N M 202 If the plaintiff assigns a sufficient breach of the condition, and then specifies the items of damage that he has sustained, the defendant cannot demur to such specification S Williams v Maden, 9 Wen d ( N Y) 240 2 Gainsford v Griffith, i Saun d 58, note; Munro v Alaire, 2 Ca I ( N Y) 320 A general demurrer to^ the whole declaration will not be sustained if one of several breaches assigned is sufficient. Kerr v Meredith, 4 Yeates (Pa) 283; Hendrickson v Reinback, 33 111 299; Adams v State, 6 Ark 497; Garnett v Yoe, 17 Ala 74; Wilson v Cantrel Lig Ala 642; Wade v Killough, 5 Stew p (Ala ) 450; Watts v Shep- pard, 2 Ala 425; Williamson v Woolf, 37 Ala 298; Martin v Sturm, 5 Ran d e ALTERNATIVE CONDITION S In an action upon a bond conditioned in the alternative for the performance of one of two things stated, it is not a sufficient breach, to support the action, to allege the nonperformance of one of such two things ; the non- performance of both must be allege d 1 f TI Me In assigning the breaches of a bond which was taken, and intended, as a security for a limited period, the time of the commission of the breach is so far material that it must be laid to be within such perio d 2 ( Va) 693; People v Brush, 6 Wen d ( N Y) 454; Colburn v State, 47 Ind 310; State v Scott, 12 Ind 530; Arm- ington v State, 45 Ind 10; Kintner v State, 3 Ind 86; Rock v Gordon, 6 Blackf (Ind) 192; Redpath v Not- tingham, 5 Blackf (Ind) 267; Arnold v Co M, 8B Mo N (Ky) 109; Hayden v Sample, 10 Mo 215 The correct practice is to demur to the breaches severally, or only to such as are defectiv e Watts v Sheppard, 2 Ala 425; Brown v Stebbins, 4 Hill ( N Y) 154- Where the Stat8 9 Wi N II I, or a similar statute, is not in force, the replication will be ill for duplicity if it avers more than one breac H Mooney v Demerrit, i N H 187; Otis v Blake, 6 Mas S 336; Sevey v Black- lin, 2 Mas S 542; Bailey v Rogers, i Me 193; Jackson v Rundlet, I Wood b M (U S) 381 Several Count S The several assign- ments of breach are analogous to the several counts in a declaratio N Hen- drickson v Reinback, 33 111 299; Saf- ford v Miller, 59 111 205; Bardill v Trustees, 4 111 App 94; Sugden v Beasley, 9 111 App 71; Abrahams v Jones, 20 111 App 83; Burroughs v Clancey, 53 111 30; Hibbard v Mc- Kindley, 28 111 240; People v McClel- lan, 137 111 352; Kingsford v Button, i L, M p 479 The several breaches alleged are in the nature of distinct causes of actio N Beach v Barons, 13 Barb ( N Y)3O5 But see State v Davis, 35 Mo 406 Under the Code Practice several sep- arate breaches may be assigned in a single paragraph of complaint, and demurrers may be addressed to sin- gle breaches, McFall v Howe Sewing Mac H Co, 90 Ind 148; Colburn v, State, 47 Ind 310; but each breach as- signed is regarded as a separate para- graph, with a view to making issue, State v Roche, 94 Ind 372 Compare Taft v Brewster, 6 John S ( N Y) 334; Spaulding v Millard, 17 Wen d ( N Y) 331; Harmon v Dedrick, 3 Barb ( N Y) 192; Monroe County v Beach, 9 Wen d ( N Y) 144; Warren v Powers, 5 Con N 373; State v Lane, 4 Ind 163; Shoop -v State, 6 Ind 113; Brown v Hart, 7 Blackf (Ind) 429; Vance v State, 6 Blackf (Ind) 80; Hill v Fitz- patrick, 6 Ala 314; Botts v Bridges, 4 Port (Ala) 274; Watts v Sheppard, 2 Ala 425; Taylor v Pope, 3 Ala 190; Wilson v Cantrell, 19 Ala 642; Will- iamson v Woolf, 37 Ala 298; Garnett v Yoe, 17 Ala 74; Co M v Pray, i Phi La (Pa) 58; Safford v Miller, 59 111 205; Abrahams v Jones, 20 111 App 83; Shelton v Durham, 76 Mo 434; Kingsford v Dutton, I L, M P 479 1 Shaefer v Minor, i How (Mis S) 218; People z/ Tilton, 13 Wen d ( N Y) 597; Cornwallis v Savery, 2 BurR772 To a plea of performance of a bond conditioned to prosecute a suit to ef- fect, or abide by the decree of the court, a replication was held ill which assigned only one breach, viz., that the defendant did not prosecute, etc Reynolds .

Autor of the post: Undefined

An assignment of a breach Post Date: Sun, 27 Jul 2008 21:25:16 +0000
v Torrance, i Tread W ConSt ( S Car) 125 When the declaration sets forth the condition of a bond, and it appears that the defendant has the right to discharge and satisfy it by the pay- ment of money, or in some other and different mode, at his election, the breach must be assigned specificall Y Richardson v Beaumont, 20 N J L578 2 Union Bank v Ridgely, iHar An allegation that the breach oc- curred on a certain day in July, 1891, "and on divers other days thereafter during the months of July and August, 1891," is sufficiently definite as to ti Me Drake v State (Tex Civ App, 1893,) 23 S W Rep 398 g CERTAINTY AND DEFINITENES S The assignment of each breach of a bond must be perfect in itself, and cannot be made by a reference to other breache S The breach must show with certainty and precision that the plaintiff has a cause of actio N 1 1 Alabama Garrett v Logan, 19 Ala 344; Watts v Sheppard, 2 Ala 425; Ladd v Smith (Ala, 1892), 10 So Rep 836; Clay v Drake, Minor (Ala) 164; Rives v Toulmin, 19 Ala 288; Ridgell v Dale, 16 Ala 36; Governor v Wiley, 14 Ala 172; Tuskaloosa v Lacy, 3 Ala 618; Judge v Pharr, 4 Stew p (Ala) 332; Mayfield v Allen, Minor (Ala) 274; Powell v Governor, 13 Ala 516 Arkansa S State v Holleman, 21 Ark 413; State Bank v Clark, 2 Ark 375; McLaughlin v Sproul, 14 Ark 178 California Mendocino County v Morris, 32Cal146 Connecticut Mills v Skinner, 13 Con N 436; Shelton v French, 33 Con N 489 Illinoi S Fournier v Faggott, 4 111 346; Hibbard v McKindley, 28 111 240; People v Wardlaw, 24 111 576 Indiana State v Votaw, 8 Blackf (Ind) 2; Hoshaw v Hoshaw, 8 Blackf (Ind) 258; Love v Kidwell, 4 Blackf (Ind) 553; Uhrig v Sinex, 32 Ind 493; State v Evans, 3 Blackf (Ind) 379; Kintner v State, 3 Ind 86; Hawthorn v State, 48 Ind 464; Doherty v Chase, 64 Ind 73; Mackenzie v School Trus- tees, 72 Ind 190; Boles v McCarty, 6 Blackf (Ind) 427; Morris -v Price, 2 Blackf (Ind) 457; Malone v McLain, 3 Ind 532; Evans v State, 2 Blackf (Ind) 387; Hunter v Brown, 68 Ind 225; Stanley v Montgomery, 102 Ind 102; State v Spears, i Ind 515; Glide- well v M'Goughey, 2 Blackf (Ind) 359; State v M'Clane, 2 Blackf (Ind) Iowa Jones County v Sales, 25 Iowa 25 KentucKy Chiles v Calk, 3 TB Mo N (Ky) 341 Marylan d Lloyd v Burgess, 4 Gill (Md) 187; Butter v State, 5 Gill J (Md) 511; Burroughs v Clarke, 3 Gill (Md) 196; State v Dorsey, 3 Gill J (Md) 75; M'Mechenv Baltimore, 2 HaR J (Md) 41; State v Norris, 2 Md 294 Massachusett S American Bank v Adams, 12 Pic K (Mas S) 303 Michiga N Young v Stephens, 9 Mich 506; People v Lee, 65 Mich 557 Mississipp I Wharton v Porter, 10 Smed M (Mis S) 305 Missour I State v- Pace, 34 Mo App 458; State v Thomas, 17 Mo 503; State v Bartlett, 68 Mo 581 New Hampshire Stickney v Stick- ney, 21 N H 61; Cheshire Bank v Robinson, 2 N H 126 ,New Jerse Y Gregory v Freeman, 22 N J L 405 New York Hauger v Bernstein, 7 Daly ( N Y) 340; People v Brush, 6 Wen d ( N Y) 454; Brown v Stebbins, 4 Hill ( N Y) 154; Hatch v Peet, 23 Barb ( N Y) 575; McKillip v Mc- Killip, 8 Barb ( N Y) 552; Monroe County v Beach, 9 Wen d ( N Y) 143; Gale -v O'Bryan, 12 John S ( N Y) 216; Gale v O'Brian, 13 John S ( N Y) 189; Treadwell v Steele, 3 Ca I ( N Y) 169 North Carolina Wright v Wheeler, 8 Ire d (N Car) 184 Ohio State v Caffee, 6 Ohio 150 Pennsylvania Rees v Tichenor, I Miles (Pa) 183; Barrington v Wash- ington Bank, 14 S R(Pa) 405 Texa S Drake v State (Tex Civ App, 1893), 23 S W Rep 398 Ver Mont Topliff v Hayes, 20 Vt 362; Williams v Willson, i Vt 274 VirginiaElam v Commercial Bank, 86 Va 92; Dickinson v M'Craw, 4 Ran d ( Va) 158; Mitchell v Thomp- son, 2 Patt H ( Va) 424 West VirginiaState v Phares, 24 W Va 657 Wisconsi N Lewis v Woolfolk, I Chan d (Wi S) 171 United State S Karthaus v Ferrer, i Pet (U S) 222; Coe v Rankin, 5 McLean (U S) 354 Englan d King v Norman, 4 CB 884, 56 E C L 884; Plomer v Ross, 5 Taunt 386; Tombs v Painter, 13 East i; Yale v Rex, 6 Br O p C 27; Sim- mons v Langhorne, 2 Wil S N A declaration on a bond of indemnity must set out wherein plaintiff has been damnified; a general averment of loss is insufficient. Coe v Rankin, 5 McLean (U S) 354 But it is not necessary, in an action for the penalty of a bond, to declare that the plaintiff has sustained dam- ages by reason of the defendant's re- VI I THE PLEA OK ANSWEB 1 Performanc e Where the decla- ration sets out the condition of a bond and assigns particular breaches, the plea or answer should meet those averments specifi- cally ; a general plea of performance is not enoug H 1 fusal to pay; nor to allege, after as- signment of breaches, that the plaintiff has been injured by such breache S Allison -v Farmers' Bank, 6 Ran d ( Va) 204 An averment of a breach of the bond entitles the plaintiff to recover what he is legally entitled to by rea- son of the breac H M'Dowell v Bur- well, 4 Ran d ( Va) 317 Setting out Ordinanc e The condi- tion of a bond being that the princi- pal obligor would perform the duties of treasurer of a municipal corpora- tion, under an ordinance of such cor- poration, such ordinance must be set out or averments made of the special duties thereby required of the princi- pal obligor, in assigning breaches of the conditio N Tuskaloosa v Lacy, 3 Ala 618 Stating ManneRIn an action of cov- enant, where the covenant is to in- demnify and save harmless a party from the payment of a bond, a breach that he was forced and compelled to pay the bond, without stating how and in what manner he was compelled to pay, is bad on special demurreRPatton v Foote, i Wen d ( N Y) 207 No Direct Averment. An assignment of a breach, in a declaration on a bond with a collateral condition, commenc- ing "And whereas," etc, and continu- ing to the end by recital, without any direct averment, is bad on general demurreRSyme v Griffin, 4 He N M ( Va) 277 Certainty Excuse d Where the infor- mation touching the breach of a bond is in the possession of the defendant, the assignment of the breach is good if it is as specific and certain as pos- sible in the cas e Elam v Commercial Bank, 86 Va 92 Tennessee The following is the form of a declaration assigning breaches, prescribed by legislation in Tennessee: " The plaintiff sues the de- fendant for dollars, for the breach of the condition of a bond [or agree- ment], here to the court shown, made by the defendant on the day of , 18 , and payable to the plain- tiff, in the sum of dollars, with condition [here state the condition concisely].

Autor of the post: Undefined

save harmless and in- demnif Y Post Date: Sun, 27 Jul 2008 21:14:32 +0000
And the plaintiff says the condition of said bond has been broken by the defendant in this [here state concisely and distinctly the breach or breaches complained of first, second, etc]: whereby the plaintiff has been damaged as abov e [Signed] L M, Attorney for the Plaintiff" Code Tenn, 3649 1 People v McHatton, 7 111 731; Mix v People, 86 111 329; Mix v People, 92 111 549; Tait v Parkman, 15 Ala 253; Emanuel v Laughlin, 3 Smed M (Mis S) 342; Freeland v Rjaggles, 7 Mas S 511; Tinney v Ash- ley, 15 Pic K (Mas S) 546 Each breach should be answered and the time, place, and manner of performance set fort H Postmaster Gen'l -v Cochran, 2 John S ( N Y) 413; Bailey v Rogers, I Me 190; Morgan v Morgan, 4 Gill J (Md) 395; Tait v Parkman, 15 Ala 253 In an action on a bond not to settle or continue as a medical practitioner within fifteen miles of a certain place, assigning as a breach that the obligor had practised within said fifteen miles, a plea of performance, generally, is ba d Thompson v Means, n Smed M (Mis S) 604 And a plea of performance, gen- erally, to a declaration making nega- tive averments in assigning breaches, is not sufficient. State v Leavell, 3 Blackf (Ind)ii7 OyeRWhere the condition of the bond is not set forth in the declara- tion, a plea of performance is bad, if oyer be not ha d U S v Arthur, 5 Cranch (U S) 257 Guardian's Bon d If the declaration, in debt on a guardian's bond, assigns specific breaches, a plea that defendant had faithfully discharged the duties of his guardianship is bad; so also is a plea that defendant was not guilty of alleged breache S Cottingham v State, 7 Blackf (Ind) 405 Burden of Proof If, to an action on a penal bond to recover damages for a breach of its condition, the defend- ant pleads general performance, and issue be joined thereon, the burden of 2 Non Damnificatu S Where the condition of a bond is merely to indemnify, the plea of non damnificatus is a good plea ; but where a bond is not one to indemnify against damage, but an af- firmative covenant to do a specific thing, liability must be ad- judged, notwithstanding no loss results from the nonperformance ; and non damnificatus^ or no damage, is not a good ple A 1 3 Non est Factu M At common law, in debt on a bond, when the defendant wished to deny the execution of the bond or sought to show that it was absolutely void in law, he pleaded the gen- eral issue, non est factum* proof to show a breach is on the plain- tiff The rule is otherwise where special performance is pleade d Holli- day v Cooper, i Smed M (Mis S) 633 See Douglas v Hennessy, 15 R I 272; State v Short, 2 HarR(De L) 152; Mix -v People, 92 111 549; Frantz v Smith, 5 Gill (Md) 280; Hammitt v Bullett, I Call ( Va) 567; Elam v Commercial Bank, 86 Va 92 Prolixit Y Where the condition of a bond is in general terms, but compre- hends a multiplicity of matters or multifarious particulars, a general plea of performance, to avoid pro- lixity, is allowe d Dawes v Gooch, 8 Mas S 488 See Reynolds v Tor- ranee, i Tread W ConSt ( S Car) 125; Musgrave v Muscatine County, i Greene (Iowa) 446; Miller v Elliott, I Ind 484; State v Hays, 30 W Va 107 1 The technical plea of non damni- ficatus can only be used in an action on a bond to .save harmless and in- demnif Y Douglass v Clark, 14 John S ( N Y) 177; Woods v Rowan, 5 John S ( N Y) 42; McClure v Erwin, 3 Co W ( N Y)3i3; Andrus z/ Waring, 20 John S ( N Y) 153; Coombs v Newlon, 4 Blackf (Ind) 120; Ingram v Wilson, n Rich ( S Car) 461; Hicks v Hoos, 44 Mo App 571; Williams v, Wilson, i Vt 266; Brent v Davis, 10 Wheat.

Autor of the post: Undefined

But the plea of nil Post Date: Sun, 27 Jul 2008 21:03:13 +0000
(U S) 396; Wash- ington v Young, 10 Wheat. (U S) 406; Mease v Mease, Cow P 47 Alternative Conditio N The condi- tion of a bond was that the defendant should repair all damages done to a certain farm by a certain dam, and should pay to the plaintiffs and their assigns all damages that the farm might sustain in consequence of the da M Held, that the condition was in the alternative, and that, in a suit on the bond, non damnificatus was not a good ple A Barrett v Barren, 13 N H 150 Surrendering Leased Premise S In an action on a bond to surrender a mill at the expiration of a lease, non damni- ficatus is not a good ple A Hayes v New York Gold Mi N Co, 2 Colo273 Prison Limits Bon d In an action of debt on a bond conditioned to keep within the prison limits, a plea in bar admitting that the defendant had walked out of the limits, but alleging that the plaintiff (the sheriff) had sus- tained no damage thereby, is bad on demurreRCamp v Allen, 12 N J Payment of Mone Y Non damnificatus cannot be pleaded to an action on a bond conditioned for the payment of a sum of money by a certain day, though it appears by the condition that the bond was given by way of indemnit Y Holmes v, Rhodes, iB P 638 Compare Sears v Nagler, 18 111 App 547; Elam v Commercial Bank, 86 Va 92; American Bld g Loan, etc, Co v Booth, 17 RI 736; Hough v Perkins, 2 How (Mis S) 724; Everett v State, 28 Md 190; Neville v Williams, 7 Watt S (Pa) 421 2 Alabama Garnett v Roper, IO Ala 842; Manning S Norwood, I Ala 429; Tindal v Bright, Minor (Ala) 103 Arkansa S Fenter v Obaugh, 17 Ark 71; Nicholay v Kay, 6 Ark 59 Colorad O Anderson v Sloan, I Colo484 Delawar e State v Houston, I HarR(De L) 230; Evans v Hudson, 5 HarR(De L) 366 Georgia Justices v Sloan, 7 Ga 31; Thompson v Gowen, 79 Ga 70 Illinoi S Pritchett v People, 6 111 525; Phillips v Singer Mfg Co, 88 111 305; Oberne v Gaylord, 13 111 4 Nil Debet. But the plea of nil debet was bad on general de- murrer ; that form of a plea was the general issue in debt on simple contra Ct A plea of nil debet, though good where the bond is mere inducement, is bad where it is the gist of the actio N 1 App 30; Treman v Morris, 9 111 App 237; Herrick v Swartwout, 72 111 340; Frye v Menkins, 15 111 339; Home Flax Co v Beebe, 48 111 138; Smith v Lozano, i 111 App 171; Sugden v Beasley, 9 111 App 71; Stearns v Cope, 109 111 341; Fitzsimmons v Hall, 84 111 538 KentucKy Lockhart v Roberts, 3 Bibb (Ky) 361; Taylor v Taylor, 3 Bush (Ky) 120 Maine Jewell v Gagne, 82 Me 430 Marylan d Union Bank v Ridgely, iHar g (Md) 324; Mitchell v Williamson, 6 Md 210; Burgess v Lloyd, 7 Md 178; Edelin v Sanders, 8 Md 118 Mississipp I Clanton v Laird, 12 Smed M (Mis S) 568 Missour I Greene County v Wil- hite, 29 Mo App 459; Stapleton v Benson, 8 Mo 13; State v Ferguson, 9 Mo 288; Payne v Snell, 4 Mo 238 New Jerse Y Hudson v Winslovv, 35 N J L 437; State Bank v Chet- wood, 8 N J L I New York Commercial Union As- suRCo v Bauer, 58 Hun ( N Y) 64 North Carolina Ford -v Vandyke, ii Ire d (N Car) 227 Pennsylvania Fritz v Montgomery County, 17 Pa St 130; Schuylkill County v Copley, 67 Pa St 386 South Carolina Ison v Ison, 6 Rich ( S Car) 380 Texa S Poer v Brown, 24 Tex VirginiaBell v Allen, 3 Munf ( Va) 118; Jackson v Webster, 6 Munf ( Va) 462; Cleaton v Cham- bliss, 6 Ran d ( Va) 86 West VirginiaKuykendall v Ruckman, 2 W Va 332; American Buttonhole, etc, Mac H Co v Bur- lack, 35 W Va 647 United State S U S v Dair, 4 Bis S (U S) 280; Greathouse v Dun- lap, 3 McLean (U S) 303; U S v Sawyer, i Gal L (U S) 87 Fraud in the manner of obtaining a bond, so far as relates to the execu- tion thereof, is a good defense to an action on it, and maybe shown on the plea of non est factu M Van Valken- burgh v Rouk, 12 John S ( N Y) 337; Dorr v Munsell, 13 John S ( N Y) 430; Dale v Roosevelt, 9 Co W ( N Y) 307; Taylor v King, 6 Munf ( Va) 358; Huston v Williams, 3 Blackf (Ind) 170 1 Alabama Ansly v Mock, 8 Ala 444; Reid v Nash, 23 Ala 733 Arkansa S Sevier v Wilson, 8 Ark 496; McFarland v State Bank, 4 Ark 44- Colorad O Jenness v Black Hawk, 2 Colo578; Anderson v Sloan, I Colo484 Illinoi S Davis v Burton, 4 111 41; King v Ramsay, 13 111 619; Caldwell v Richmond, 64 111 30; Kilgour v Drainage Com'rs, ill 111 342; Price v Farrar, 5 111 App' 536; Meyer v Wiltshire, 92 111 395; Mix v People, 92 111 549 Indiana Hooker S State, 7 Blackf (Ind) 272; Noel v State, 6 Blackf (Ind) 523; Smith v Stewart, 6 Blackf (Ind) 162 KentucKy Hanna v McKenzie, 5B Mo N (Ky) 314 Mississipp I Butler -v Alcus, 51 Mis S 47 New Jerse Y Ohlmeyer v Kent, 2 N J L 52; Howard v Blackford, 3 N J L 348; Allen v Smith, 12 N J L 159 New York Blydenburgh v Car- penter, Hill d Supp ( N Y) 169; Bullis v Giddens, 8 John S ( N Y) 82; Minton v Woodsworth, n John S ( N Y)474; Hart v Brady, i Sandf ( N Y) 626 Ver Mont Dyer v Cleaveland, 18 Vt 241 United State S Sneed v Wister, 8 Wheat.

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Lancaster, 17 Ohio 96 Pennsylvania Post Date: Sun, 27 Jul 2008 20:48:45 +0000
(U S) 690; U S v Spencer, 2 McLean (U S) 405 Englan d Anonymous, 2 Wil S 10 But in an action of debt on a bond, where the plaintiff, instead of demur- ring, replies to a plea of nil debet, he will be put upon proof of every alle gation in his declaration; and the de- fendant may avail himself of any ground of defense which, in general, might be taken advantage of under that ple A Gargan v School DiSt 5 Want or Failure of Consideratio N Want or failure of considera- tion cannot, by common law, be pleaded in bar of an action on a bon d 1 6 Nul tiel Eecor d The plea of nul tiel record is not a proper plea to an action on a bond, even though the bond is required by law to be recorde d* 7 Payment. Where payment has been made to satisfy the breach of a bond, the plea should admit the breach, and avoid it by setting forth payment in satisfactio N 3 No 15, 4 Colo53; Eakle v Oliver, 5 Blackf (Ind) 3; Noel v State, 6 Blackf (Ind) 523; Parish v State, 3 Ind 209; Shook v State, 6 Ind 113; Parks v State, 7 Mo 194; Price v Farrar, 5 111 App 536; Miller v Moses, 56 Me 128; Philbrook v Burgess, 52 Me 271; U S v Spen- cer, 2 McLean (U S) 405 1 Alabama Giles v Williams, 3 Ala 316; Craig v Blow, 3 Stew (Ala) 448; Johnson v Caffey, 59 Ala 331 Arkansa S Haralson v Walker, 23 Ark 415 Illinoi S Nye v Raymond, 16 111 Indiana Hays v Muir, I Ind 174; Leonard v Bates, I Blackf (Ind) 173; Flack v Cunningham, i Blackf (Ind) 107; McDorman v Jellison, 7 Blackf (Ind) 304 KentucKy Peebles v Stephens, I Bibb (Ky') 500; Minor v Kelly, 5 T b Mo N (Ky) 272 Marylan d Mitchell v Williamson, 6 Md 210 Missour I Bruffey v Brickey, 5 Mo 395; Bates v Hinton, 4 Mo 78; Smith v Busby, 15 Mo 387 New York Vrooman v Phelps, 2 John S ( N Y) 177; Hart v Brady, I Sandf ( N Y)626; M'Clure v Erwin, 3 Co W ( N Y) 313; Steuben County Bank v Matthewson, 5 Hill ( N Y) 249; Dorian v Sammis, 2 John S ( N Y) 179, note; Dorr v Munsell, 13 John S ( N Y) 430; Case v Boughton, n Wen d ( N Y) 106 North Carolina Parker v Flora, 63 N Car 474; Boyt v Cooper, 2 Murp H (N Car) 286 South Carolina Gaillard v Tren- holm, 5 Rich ( S Car) 356; Thompson v M'Cord, 2 Bay ( S Car) 76 United Slate S U S v McKewan, 4 Blatchf (U S) 383; Chapman v Smit H 16 How (U S) 114; Great- house v Dunlop, 3 McLean (U S) 303- 2 Arnott v Friel, 50 111 174; State v Houston, i HarR(De L) 230 But see Hawley v Middlebrook, 28 Con N 527 3 Arkansa S Eason v Fisher, I Ark 90 Marylan d Shriner v Lawborn, 12 Md 170; Karthaus v Owings, 2 Gill J (Md) 430; Williams v Creemer, 4Har M (Md) 420 Massachusett S Coffin v Jones, II Pic K (Mas S) 45 New Jerse Y Marvin v Bolles, 18 N J L 365; Rozenkrantz v Durling, 29 N J L 191 New York Hart v Meeker, i Sandf ( N Y) 623; Chandler v Her- rick, 19 John S ( N Y) 129 North Carolina Bryan v Drake, 3 Dev B (N Car) 72 Ohio Short ^.Lancaster, 17 Ohio 96 Pennsylvania Baring v Shippen, 2 Bin N (Pa) 154; Carpenter v Groff, 5 S R(Pa) 162; McCulloch v McKee, 16 Pa St 289 South Carolina Jones v Griffin, I Strob H ( S Car) 31 Ver Mont Watson v Joslyn, 27 Vt 611 VirginiaThatcher v Taylor, 3 Munf ( Va) 249 Englan d Ashbee v Pidduck, I M 6 W 569; Wodehouse v Farebrother, 5 E L B L 277, 85 E C L 277; Baldie v Elers, 5 T R250; Marriage v Mar- riage, i CB 761, 50 E C L 761 In an action on a bond for the per- formance of a duty and for indemnity, a plea which avers payment of all that the plaintiff has paid and expended, instead of admitting the breach and averring payment of the sums claimed in the declaration, is ba d Hart v Meeker, i Sandf ( N Y)623- Payment of interest must be pleaded in debt on a bon d Livingston v Romaine, Ant H ( N Y) 145 A plea of payment before the day is ba d Anonymous, 2 Wil S 150 8 Frau d In an action of debt on a bond, the defendant cannot plead a failure of consideration, or that he was induced to give the bond by a fraudulent representation of the value of a thin g Fraud may be given in evidence, under plea of non est factum, only where it relates to the execution of the instrument.

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Owe Nioi Mo 558 New Post Date: Sun, 27 Jul 2008 20:37:16 +0000
1 9 TendeRA tender before the day may well be pleaded to debt on a bond conditioned to pay money at or upon a certain da Y 2 10 New MatTer That which amounts to new matter under the codes, or to matter in confession and avoidance at common law, must be specially pleade d 3 But where, to an action on a bond conditioned to pay money on or before a certain day, the defendant pleaded that he did pay it before the day, to wit, on such a day held, goo d Anonymous, 2 Wil S 173; Fletcher v Hennington, 2 BurR944; Geddings v Geddings, i L d Ke N 335 To an action upon a bond, the de- fendant may plead post diem as to part payment in satisfactio N Husband v Davis, 10 CB 645, 70 E C L The defendant may plead a plea of solvit post diem to the interest alon e Hodgkinson v Wyatt, I d L 668 Pennsylvania In debt on a bond in Pennsylvania, where the plea of pay- ment is pleaded, it is incumbent on the defendant to make out such a case as would entitle him to relief in a court of equit Y Evans v Mengel, I Pa St 68 1 Arkansa S Ferguson v McCain, 23 Ark 210; Hughes v Sloan, 8 Ark 146 District of Columbi A Postmaster Gen'l v Ustick, 4 Wash (U S) 347 Indiana Hunt v State, 53 Ind 321; Jenners v Howard, 6 Blackf (Ind) 240; Miller v Elliott, i Ind 484 KentucKy Terry v Hazlewood, i Duv (Ky) 104; Higgs v Smith, 3 A K Marsh (Ky) 338 Massachusetts, American Bank v Adams, 12 Pic K (Mas S) 303 Missour I Casey v Smales, 4 Mo New Jerse Y Mason v Evans, I N J L 211; Lord v Brookfield, 37 N J L 552; Dubois v Loper, i N J L 433 Ver Mont Davis v Cole, I Tyler ( Vt) 262 VirginiaCunningham v Smith, 10 Gratt ( Va) 255; Chew v Moffett, 6 Munf ( Va) 120; Fleming v Toler, 7 Gratt ( Va) 310; Wilson v Spencer, n Leigh ( Va) 271; Wyche v Macklin, 2 Ran d ( Va) 426; Tomlinson v Mason, 6 Ran d ( Va) 169 West VirginiaMorrow v Bailey, 2 W Va 326 Wisconsi N ^Etna L In S Co v Mabbett, 18 Wi S 667 United State S Withers v Greene, 9 How (U S) 213 A plea alleging that a bond "was obtained by fraud, covin, and misrep- resentation," is bad on demurrer; the facts which constitute the fraud must be state d Giles v Williams, 3 Ala 316; Clay v Dennis, 3 Ala 375 Contra, Pence v Smock, 2 Blackf (Ind) 316 Compare Dorr v Munsell, 13 John S ( N Y) 430; Stevens v Jud- son, 4 Wen d ( N Y) 471; Dale -v Roosevelt, 9 Co W ( N Y) 307; Case v Boughton, ii Wen d ( N Y) 106 2 M'Hard v Whetcroft, 3Har M (Md) 86 And a tender, after the day, of what is justly due on the bond, may be well pleade d Tracy v Strong, 2 Con N 659 Contra, Underbill v Mathews, Bul L N p 71 A plea, to an action on a bond to deliver goods at a certain time and place, that the defendant was ready and willing to deliver them to the plain- tiff at the time and place appointed, but the plaintiff was not present to accept them, is bad on demurreRThe plea should state that the defendant was at the place appointed, in person, or by his agent, ready to deliver, etc Savary v Goe, 3 Wash (U S) 140 See Cox v Way, 3 Blackf (Ind) 143; Hunt -v Reeves, 5 Blackf (Ind) 177; Fretageot v Owen, 7 Blackf (Ind) 231 3 Union Bank v Ridgely, iHar g (Md) 325; Martin v Garrett, 7 11 Certaint Y Every plea in discharge or avoidance of a bond should state positively and in direct terms the matter in dis- charge or avoidance, and not leave the defense relied on to be in- ferre d 1 See article DEFINITENESS AND CERTAINTY IN PLEAD- ING S HaR J (Md)272; Maddox v State, 4Har J (Md) 539; Boteler v State, 8 Gill J (Md) 384; Wallace v Finberg, 46 Tex 35; Harding v Minear, 54Cal502; Reed v Phillips, 5 111 39; Gaddy v McCleave, 59 111 182; Horner v Boyden, 27 111 App 573; Miller v Elliott, i Ind 484; Ho- boken v Evans, 31 N J L 342; Cox v Weed Sewing Macj I Co, 57 Mis S 350; Grand Chute v Winegar, 15 Wal L (U S)355- Duress, Infancy, and Usur Y If a de- fendant seeks to avoid a bond for duress, infancy, or usury he must specially plead the matTer Union Bank v Ridgely, iHar g (Md) Void Conditio N A defendant cannot take advantage of a void condition in a bond without setting it out. Colton v Goodridge, 2 W B L 1108 Illegal Bon d A plea seeking to avoid a bond for being illegally taken, colors officii, should specially state all the facts which show that illegalit Y U S v Sawyer, i Gal L (U S) 86 Arbitration Bon d In an action on an arbitration bond, if the arbitrators failed to consider all the matters sub- mitted, and such failure was not oc- casioned by the neglect of the com- plaining party to furnish the necessary proof relating thereto, this is a matter of defense to be set up by the proper ple A Stearns v Cope, 109 111 341 Attachment Bon d In a suit on an attachment bond the petition averred generally that plaintiff in the attach- ment had failed to prosecute his action without delay and with effect; and further, that a judgment had been rendered for defendant in the trans- action on a plea in Abatement Held, that an allegation in the answer that the attachment suit was still pending on a motion for a new trial, and un- disposed of, set up no new matter re- quiring a replicatio N State v Will- iams, 48 Mo 210 Illinoi S Fitzsimmons v Hall, 84 111 538; Goelz v Joerg, 64 111 114 Indiana Miller v Elliott, i Ind 484; Cammack v Rupert, 4 Blackf (Ind) 153; Woodruff v Dobbins, 7 Blackf (Ind) 582; Kempshall v East, 127 Ind 320; Patterson v Salmon, 3 Blackf (Ind) 131; Coombs v New- Ion, 4 Blackf (Ind) 120; Sammons v Newman, 27 Ind 508; Sumpter v Wilson, i Ind 144; State v Marshall, 20 Ind 287; Winningham v State, 56 Ind 243 Louisiana Wilkins v Bobo, 13 La An N 430 Marylan d Franklin F In S Co v, Hamill, 5 Md 170; Woottons v Sprigg, 4Har M (Md) 352 Massachusett S Clarke v Moies, n Gray (Mas S) 133; Bond v Cutler, 10 Mas S 419; Lindsay v Blood, 2 Mas S 518; Sevey v Blacklin, 2 Mas S Mississipp I Higdon v Vaughn, 58 Mis S 572 Missour I Poteet v Boyd, 10 Mo 160; Shelton v Durham, 76 Mo 434; Third Nat Banks'. Owe Nioi Mo 558 New Jerse Y Meyer v Elizabeth, 2 N J L J 281; Hanness v Bonnell, 23 N J L 159; Hoboken v Evans, 31 N J L 342; Morris Canal, etc, Co v Van/Vorst, 21 N J L 100; Shotwell v Dennis, 14 N J L 501; Copperthwait v Dummer, 18 N J L 258; Bennington Iron Co v Ruther- ford, 18 N J L 467; State Bank v Chetwood, 8 N J L i; Hoffman v Brown, 6 N J L 429 New York Hart v Brady, i Sandf ( N Y) 626; Beers v Pinney, 12 Wen d ( N Y) 309 Ohio Cairnes v Knight, 17 Ohio St 68 Pennsylvania Axtell v, Caldwell, 24 Pa St 88 South Carolina McCall v Evans, 2 Brev ( S Car)3 12 Action by Assigne e In an action upon a penal bond the de- fendant may, under the Code of Civil Procedure, avail himself of any defense, legal or equitable, which he may have to the claim or demand made against him, though the action be prosecuted by an assigne e 1 13 Several Plea S At common law a defendant could only in- terpose one plea to an action on a bond, as the pleading of sev- eral pleas would have been an infringement of the rule against duplicit Y The Stat4 Anne, C 16, 4, was passed to enable a defendant to plead as many several matters as he deemed neces- sary for his defens e Under this statute, and also under the Codes of Civil Procedure, the defendant is enabled to plead sev- eral pleas and to set up all the defenses he may have to an ac- tion on a bon d 2 Ver Mont Freeman -v, Henry, 48 Vt 553; Carpenter v Briggs, 15 Vt United State S Bevins v Ramsey, 15 How (U S) 179; Bryant v Hun- ters, 3 Wash (U S) 48; U S v Brad- ley, 10 Pet (U S) 343 Englan d Benham v Mornington, 3 CB 133, 54 E C L 133 1 Western Bank v Sherwood, 29 Barb ( N 0383 In an action upon a bond con- ditioned to pay a sum of money, brought by an assignee, the de- fendant alleged in his answer that the bond and a mortgage to secure its payment were executed to J, in con- sideration that J would perform cer- tain covenants contained in an agree- ment between the parties, and that J had failed to perform these covenants held, that these allegations consti- tuted a good defens e Western Bank v Sherwood, 29 Barb ( N 0383 In an action on a bond by an as- signee thereof, a plea simply averring that the obligee had made a previous assignment of the bond to another person, is bad on general demurreRThe plea should go further and show that such previous assignee was the owner of the bond when the action was commence d Marvin v Bolles, 18 N J L 365 Compare Arthur v Brooks, 14 Barb ( N Y) 533; Rich- ards v Morris Canal, etc, Co, 18 N J L 250; Stevens v Bowers, 16 N J L 16; Copperthwait v Dummer, 18 N J L 258; Prewett v Vaughn, 21 Ark 417; Neely v State Bank, 4 Ark 522; Bennett v Giles, 6 Leigh ( Va) 316; Craig v Vicksburg, 31 Mis S 216; Goudy v Gebhart, i Ohio St 262; McCausland v Drake, 3 Stew (Ala) 2 Non est Factum and Nul Tiel Recor d Non est factum and nul tiel record may be pleaded together, in an action on a bond of record in court.

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Co M, I Grant Ca S Post Date: Sun, 27 Jul 2008 20:24:24 +0000
Brown v Bickle, 7 Ark 410 Genoral Performance and non est Fac- tu M General performance and non est factum can be pleaded under Stat4 Anne, C 16, at the same ti Me Ten- der was the only plea disallowed with the general issue, on account of in- consistenc Y Union Bank v Ridgely, iHar g (Md) 324; Hamilton v Waring, 2 Brev ( S Car) 163 But it has been held that a plea de- nying the execution of a bond and one alleging performance cannot be plead- ed togetheRPope v Latham, i Ark 66 Nil Debtt and non est Factu M There is not necessarily inconsistency be- tween the pleas of nil debet and non est factum, to a suit on a bond; and an order striking out the latter plea as inconsistent with the former, is er- roneou S Grand Chute v Winegar, 15 Wal L (U S)355 If on eit Factum and Accord and Satis- factio N Accord and satisfaction is not necessarily inconsistent with the plea of non est factu M Accident In S Co v Baker, 34 W Va 668 Non eit Factum and Releas e Matters operating a release of a bond and non est factum are inconsistent. Accident In S Co v Baker, 34 W Va 669 Different Forms for Same Defens e But where there is only one defense it cannot be made the subject-matter of several plea S Prewett v Vaughn, 21 Ark 417; Governor v La Gow, 43 14 Partial Defense S If a plea which purports to answer all the breaches in the declaration is a good answer to some of them only, a special demurrer will li e 1 15 Joint Plea S Where several defendants have joined in pleas in bar to an action on a bond, they cannot afterwards sever and plead matter of personal discharg e 2 VII I DEPAKTUEE IN PLEADIN g In all actions on bonds care must be taken that there is no departure in pleadin g A depart- ure takes place when, in any pleading, the party deserts the ground that he took in his last antecedent pleading and re- sorts to anotheR3 See article DEPARTUR e 111 134; Sluyter v Union Cent L In S Co, 3 Ind App 312 See Grain v Yates, 2Har g (Md) 332; Dickinson v Burr, 7 Ark 34; Atkin- son v Foxworth, 53 Mis S 741; State v Van Pelt, i Ind 304; Hartzz'.Co M, I Grant Ca S (Pa) 359 1 U S v Willard, i Paine (U S) A plea in bar is bad which admits the plaintiff's right to recover part of the debt demanded; the defendant should apply for reduction of the penalt Y Fitzgerald v Hart, 4 Mas S 429; U S v Arnold, I Gal L (U S) 348 The averment in a plea that the obligees released a "large part "of the debt specified in the bond, is de- fective for uncertainty; but this de- fect can only be taken advantage of by special demurreRMitchell v Will- iamson, 6 Md 210 Pleas that the sum specified in the bond declared on, in pounds sterling, was not so much as the plaintiff com- puted in his ad damnum, and that defendant did not owe plaintiff as large a sum as the latter claimed in his ad damnum, are bad on demurreRGur- ney v Hoge, 6 Blatchf (U S) 499 In an action against the executor of an obligor who had bound himself to settle a sum of money on his wife, if the defendant pleads a devise of land by the obligor as a performance, and judgment is against the executor on demurrer, yet a court of equity is not thereby barred from deciding the de- vise to be a satisfaction pro tant O Bryant v Hunters, 3 Wash (U S) 48 2 Andrus v Waring, 20 John S ( N Y) 153 See also Rittenhouse v Lev- ering, 6 W S (Pa) 190; Collins v Lemasters, I Bailey ( S Car) 348; Gott v State, 44 Md 319 3 In an action of debt on a bond with a collateral condition, where the defendant has pleaded general per- formance, and the plaintiff replied, as- signing a breach of the condition, it is a departure for the defendant to al- lege, in his rejoinder, matter which shows that the bond never had any legal existenc e State v Dorsey, 3 Gill J (Md) 75 The plea was that a bond was made in New Jersey, in pursuance of a cor- rupt agreement, etc, not denying that it was made in New York, as alleged by the plaintiff S The replication re- affirmed the allegations in the declara- tion that it was made in New York, in pursuance of a lawful agreement, etc, and denied an agreement in New Jer- se Y A rejoinder that it was not made in New York, in pursuance of a law- ful agreement, etc, was held a depart- ure from the ple A Bennington Iron Co v Rutherford, 18 N J L 468 In an action of debt on an admin- istration bond, the defendant pleaded performance, to which the plaintiff re- plied that d (for whose use the suit was brought) had recovered judgment against the executor, who had assets, but had refused to pay hi M Defend- ant rejoined, confessing assets with an uncare frist, etc The plaintiff then demurred by reason of the departure, and the demurrer was held goo d Lord Proprietary v Cockshut, IHar M (Md) 40 Where, to debt on an obligation con- ditioned for the conveyance of land by deed, such as counsel should ad- vise, the defendant pleaded "per- formance of covenants, with leave to give the special matters in evidence," and the plaintiff replied that the de- fendant did not convey on or before a certain day, to which the defendant I X THE JUDGMENT.

Autor of the post: Undefined

R399; Coates v Hewit, i Post Date: Sun, 27 Jul 2008 20:11:02 +0000
Judgment on a bond with conditions should be for the penalty therein, to be discharged by payment of the damages sustained from assigned breache S 1 Under the Cod e And under the Codes of Civil Procedure this is also the rul e In an action upon a penal bond, the judgment, in rejoined that the plaintiff's counsel did not advise a conveyance held, that the defendant had waived the lib- erty of giving the special matter in evidence, and that the rejoinder afterwards amounted to a departur e M'Sherry v Askew, i Yeates (Pa) 79 1 Alabama Garnett z/Yoe, 17 Ala Illinoi S Toles v Cole, II 111 562; Stose v People, 25 111 600; Eggleston v Buck, 31 111 254; Wales v Bogue, 31 111 464 Iowa Cameron v Boyle, 2 Greene (Iowa) 154; Sweem v Steele, 5 Iowa 352 Maine Whitney v Slayton, 40 Me 224 Marylan d State v Culler, 18 Md 418 Missour I Farrar v Christy, 24 Mo 453; Rayburn v Deaver, 8 Mo 104 New York Mower v Kip, 6 Paige ( N Y) 88 North Carolina Warden v Niel- son, i Murp H (N Car) 275; Trice v Turrentine, 13 Ire d (N Car) 212 Rhode Islan d Walcott v Harris, I RI 404 South Carolina Cowan v McCul- lough, 2 Mill ( S Car) 165; Durkey v Hammond, 2 Mill ( S Car) 151; Cruger v Daniel, I McMul L E Q ( S Car) 157 Wisconsi N Warren v Gordon, 10 Wi S 499 United State S Campbell v Pope, HempSt (U S) 271 In actions upon penal bonds the plaintiff must recover, if at all, for the amount of the penalty, as debt, and such sum as may be found to be due as damage S In such cases the jury should find the amount of the debt and the damages separatel Y The penalty is the debt, and the injury sustained is the damage S And the court should render judgment for the amount of the penalty as the debt, to be dis- charged upon payment of the damage S And when execution issues, it is for the debt and damages ; but an indorsement should be made thereon that the debt will be discharged upon the satisfac- tion of the amount of the damages, and they, with the costs, are all the officer can colle Ct Freeman v Peo- ple, 54 111 153; Freeland v Jasper County, 27 111 303; Patrick S Rucker, 19 111 429; Parisher v Waldo, 72 111 71; Fournier v Faggott, 4 111 347; Toles v Cole, n 111 562; Stose v People, 25 111 600; Eggleston v Buck, 31 111 254; Wales v Bogue, 31 111 464; Gleason v Henry, 71 111 109; Mathi- son v Stephens, 9 111 App 435; O'Neil v Nelson, 22 111 App 531; Wilson Sew- ing Mac H Co v Lewis, 10 111 App 191; Moore v Fenwick, Gilmer ( Va) 214; Sims z/ Harris, 8B Mo N (Ky)55; Philbrook v Burgess, 52 Me 271; Lewis v Warren, 49 Me 322; Marvin v Bell, 41 Vt 607; Ing v State, 8 Md 287; Underwood v Lilly, 10 S R(Pa) 97; Sparks v Garrigues, i Bin N (Pa) 152; Schuyler v Sylvester, 28 N J L 487; Rozenkrantz v Burling, 29 N J L 191; Warwick v Matlack, 7 N J L 165; Roll v Maxwell, 5 N J L 568; Webb v Fish, 4 N J L 425; Williams v Patterson, 2 Overt. (Tenn) 229; Haslet v Pryor, 5 Hay W (Tenn) 33; Worthington v Wigley, 5 Bin g N Ca S 454; Judd v Evans, 6 T. R399; Coates v Hewit, i Wil S 80; Talbot v Hodson, 2 Marsh 527; Mas- fen -v Touchet, 2 W B L 706; Roles v Rosewell, 5 T R538; Hardy v Bern, 5 T R636; Goodwin v Crowle, Cow P 357; Tidd Pr 879; Code Tenn, 3690 It is error to enter up a judgment for both the penalty and the damage S McConnel v Swailes, 3 111 571 And judgment for damages only is errone- ou S Smith v Licking County, 2 Ohio 312 Tobacco Bon d In Maryland and Vir- ginia the custom formerly obtained of giving tobacco bonds, that is, bonds payable in tobacCo When such a bond was made on a condition and the condition was broken, the judgment was for the penalty, to be discharged by payment, not of the tobacco, but of the damages for breach of the con- ditio N Overstreet v Marshall, i He N M ( Va) 382; Grain v Yates, 2Har g (Md) 332 form, is for the penalt Y The codes have not changed the law in this respe Ct 1 Scire Facia S If any breaches of the bond are committed other than those for which damages have been assessed, the Stat8 9 W M II I, C n, directs that the plaintiff may sue out a scire facias upon the judgment.

Autor of the post: Undefined

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