Laws

State v M'Clane, 2 Blackf Post Date: Mon, 28 Jul 2008 0:40:08 +0000
If there are several defendants jointly liable, an averment that the " said defendants have not paid," is sufficient. Hibbard v McKindley, 28 111 240 See Sterling City Gold, etc, Mi N, etc, Co v Cock, 2 Colo24; Robinson v Placer- ville, etc, RCo, 65Cal263 Official Bond S As official bonds are 8 Indemnity Bond S Where the bill is one merely of indemnity, and not to pay, or against liability, actual damages must be shown by proper allegations in the declaratio N 1 9 Mutilated or Defective Bond S Although the seal is torn off, or the bond canceled, by fraud or mistake, yet such mutilated in- strument may be declared on as the obligor's deed, and the special facts be set out in the Profert 8 And courts of law may correct a mistake apparent on the face of the bon d A defective bond may be sued on at law and its defect accounted for by apt averments in the declaration or in the Profert 3 In an action on an injunction bond brought by the relator to recover damages upon the dissolution of the injunction, where none have been awarded to him by the decree dis- solving the same, the declaration must specify the particular injuries complained of, occasioning the dam- ages, with such clearness and distinct- ness of statement that they may be understood by the party who is to an- swer the sa Me State v Purcell, 31 W Va 45 See also Flender v Stiles, 31 111 460; Israel v Reynolds, ii 111 218; Harper v Montgomery, ii Smed M (Mis S) 611 ; Sprague v Wells, 47 Min N 504; Oglesby z/ State, 73 Tex 659; Moses v Waterbury Button Co, 37 N Y SupeRCt 393; Hencke v Johnson, 62 Iowa 555; Tay- lor v Mygatt, 26 Con N 185; Davis v Smith, 79 Me 351; Miller v Garrett, 35 Ala 96; South v Maryland, 18 Ho W (U S) 396; Equitable Accident In S Co v Stout, 135 Ind 444; Ripley County v Hill, 115 Ind 316; New- man v Perrill, 73 Ind 153; Stanley S Montgomery, 102 Ind 102; Barr v, Ward, 36 Neb 905; Vilhac v Stock- ton, etc, RCo, 53Cal209; Bricker v Stone, 47 Mo App 530 2 U S v Spalding, 2 Mason ( U S)478; U S v Williams, Ware ( U S) 175- 3 U S v Thompson, i Gal L ( U S) 392; Red River, etc, RCo v Blount, 3 Tex Civ App 282; Cook v State, 13 Ind 154; Faurote v State, 119 Ind 600; Thompson v Hall, 67 Ga 627; Blatchford v Boyden, 122 111 657- It has been held that where the bond, or a copy thereof, is made a part of the complaint, the complaint need not suggest the defect, where the bond, upon its face, itself suggests the sa Me Boden v Dill, 58 Ind 273; Miller v McAllister, 59 Ind 491; Rails- buck v Greve, 58 Ind 72; Moore v given for the benefit of all persons who may be aggrieved by the negli- gence or misconduct of the obligor, no individual can receive the amount thereof, and no payment to an indi- vidual will exonerate the obligoRIt is therefore unnecessary to aver, in a declaration on such bond, the non- payment of the penalt Y .State v M'Clane, 2 Blackf (Ind) 192 See State v Cross, 6 Ind 387; Knapp v Barnard, 78 Iowa 347; Reynolds v Hurst, 18 W Va 648; Vandiver v Hyre, 5 W Va 414; Clark v Russell, 2 Day (Con N) 112; Taylor v Auditor, 2 Ark 174 1 Crippen v Thompson, 6 Barb ( N Y) 532; Gilbert v Wiman, I N Y Churchill v Hunt, 3 De N ( N Y) Port v Jackson, 17 John S ( N 239; Aberdeen v Blackmar, 6 ( N Y) 324; Lee v Clark, I Hill ( N Y) 56; Thomas v Allen, I Hill ( N Y) 145; Halsey v Reed, 9 Paige ( N Y) 451; Collinge v Hey- wood, 9 A d E L 633, 36 E C L 223; Reynolds v Doyle, i M g In order to recover upon a bond of mere indemnity, to save the obligee harmless from another bond executed by him the plaintiff must show dam- age, and that involuntarily sustained; the damage must have been suffered or paid under compulsion by some proceedings in invitum against hi M Crippen v Thompson, 6 Barb ( N Y) In an action upon a bond conditioned that the principal obligor should well and truly account to the plaintiff, and indemnify and save him harmless, as the holder of certain stock which the plaintiff had delivered to the said obligor, the declaration must allege in what manner and to what extent the plaintiff has been damnified; a general averment of loss is insufficient.

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Day, 17 Ala 681 Post Date: Mon, 28 Jul 2008 0:26:54 +0000
Coe v Rankin, 5 McLean (U S) 354 10 Lost Bond S It is not necessary, in a complaint, to allege the loss of a bond, to entitle the plaintiff to prove its loss and give secondary evidence of its content S 1 11 Condition S In a declaration on a bond with a condition, the condition must be set out. 2 But in setting out the condition a Jackson, 35 Ind 360; Gavisk v Mc- Keever, 37 Ind 484; Cook v State, 13 Ind 154 California Under the Political Code, 963, if a copy of the bond be attached to and made part of the complaint, it is a sufficient suggestion of any defect in the bond, or in the approval or filing thereof People v Huson, 78Cal154 1 Livingston County v White, 30 Barb ( N Y) 73; Hartz v Woods, 8 Pa St 471; Stickney v Stickney, 21 N H 61 ; Rowland v'. Day, 17 Ala 681 ; Miller v Wells, 5 Mo 6; Pennington v Governor, i Blackf (Ind) 78; Mur- lock v Brown, 7 Humph (Tenn) 61; Harrison v Turbeville, 2 Humph (Tenn) 242; Kerney v Kerney, 6 Leigh ( Va) 478; Foster v Williams, 5B Mo N (Ky) 197; Webb v Bow- man, 3 J J Marsh (Ky) 70; Rich -v Catterson, 2 J J Marsh (Ky) 135; Whittemore v Moore, 9 Dana (Ky) If the bond is lost after the declara- tion is filed, the contents may be proved without an amendment of the declaratio N Lester v Governor, 12 Ala 624; Chamberlain v Sawyer, 19 Ohio 360 But the loss of the bond does not excuse the setting out in the decla- ration of the substance of any condi- tion therei N Rand v Rand, 4 N H 267 A lost bond may be declared on, without a Profert Respublica v Coates, i Yeates (Pa) 2 2 Alabama Garnett v Roper, 10 Ala 842; Burt v Henry, 10 Ala 874; Sprowl v Lawrence, 33 Ala 674 Arkansa S Taylor v Auditor, 2 Ark 174 California Mickle v Sanchez, I Ca L 200; Jenner v Stroh, 52Cal504 Connecticut Sterne v Trott, II Con N 559 Illinoi S Hurt v Tolman, 6 111 i; Goelz v Joerg, 64 111 114; Wilson v Isorn, 3 111 App 246; Hamilton v Cook County, 5 111 5*9- Indiana Bash v Van Osdol, 75 Ind 186; Faurote v State, no Ind 463; Ripley County v Hill, 115 Ind 316; Morback v State, 34 Ind 308; Fitzgerald v Gray, 61 Ind 109; Pick- ett v State, 24 Ind 366 Iowa Furgison v State, 4 Greene (Iowa) 302; State v Hufford, 23 Iowa 579- Kansa S Nix v Hoffman, 10 Ka N 255; Stone v Young, 4 Ka N 17 KentucKy Collins v Blackburn, 14B Mo N (Ky) 203; Wilhite v Rob- erts, 4 Dana (Ky) 172 Maine McFadden v Hewett, 78 Me 24 Marylan d Laidler v State, 2Har g (Md) 277; Seegar v State, 5 HaR J (Md) 488; State v Annan, i Gill J (Md) 450; Dorsey v State, 4 Gill J (Md)47i; State v Reaney, 13 Md 230 Missour I Payne v Snell, 4 Mo 238; Dollarlude v Parks, 92 Mo 178; State v Creusbauer, 68 Mo 254; Weil v Greene County, 69 Mo 281; Donald- son v Butler County, 98 Mo 163; De- vore -v Pitman, 3 Mo 179; State v Grimsley, 19 Mo 171; State v Bacon, 24 Mo App 403 , Montana Parrott v Scott, 6 Mont 340; Ryan v Kinney, 2 Mont 454 New Jerse Y Newark v Davis, 18 N J L 21 ; Morrison v Bernards T P, 36 N J L 219 New York McKinstry v Solo- mons, 2 John S ( N Y) 57; Howard v Farley, 3 Robt ( N Y) 599; Mahoney v Gunter, 10 Abb Pr ( N Y C P I) 431; Schoharie County v Pindar, .

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Drummond v Churchill, 17 Post Date: Mon, 28 Jul 2008 0:07:24 +0000
3 Lan S ( N Y) 8; Field v Van Cott, 15 Abb Pr, N S ( N Y C P I) 349! Barton v Donnelly (Supreme Ct), 57 N Y St Rep 701; Slack v Heath, i Abb Pr ( N Y C P I) 331; Morange v Mudge, 6 Abb Pr ( N Y Supreme Ct) 243; Livingston v Ham- mer, 7 Bosw ( N Y ) 670; Luce v Alexander, 4 Civ Pro Rep ( N Y SupeRCt)425; Kamping v Horan (Supreme Ct), 21 N Y St Rep 418; Whitney v Spencer, 4 Co W ( N Y) Ohio Pittsburgh, etc, RCo z Schmidt, 8 Ohio CiRCt Rep 355; Mason v Montgomery, Wright (Ohio) 722; Portage Canal, etc, Co, v Crit- general mode of pleading is allowable, especially when the facts constituting the breach of such condition lie more in the knowl- edge of the opposite party than of the party pleadin g 1 tenden, 17 Ohio 436; Bush v Critch- field, 4 Ohio 103 Orego N Hannah v Wells, 4 Ore- gon 249; Crook County v Bushnell, 15 Oregon 169 Pennsylvania Co M v Pray, I Phi La (Pa) 58; Co M v Smith, 4 Phi La (Pa) 51; Burkholder v Lapp, 31 Pa St 322 South Carolina State v Seabrook, 31 S Car 605 Tennessee Wiley v Canon', 8 Humph (Tenn) 10 VirginiaWaller v Ellis, 2 Munf ( Va) 88; Moss v Moss, 4 He N M ( Va) 293; Winslow v Co M, 2 He N M ( Va) 459 West VirginiaState v Phares, 24 W Va 657; Bratt v Marum, 24 W Va 652 United State S U S v Linn, i Ho W (U S) 104; South -v Maryland, 18 How (U S)3Q6 A count upon an official bond given to a county judge in his official capa- city is bad unless it alleges the con- dition required by the statute of the stat e Patrick v Rucker, 19 111 428 County Bond S A declaration upon county bonds should show, by aver- ment or by recital, in the bonds made part thereof that the bonds were is- sued for some authorized purpose or obje Ct Thayer v Montgomery Coun- ty, 3 Dil L (U S) 389; Cotton v New Providence T P, 47 N J L 401 Amendment. A declaration on a guardian's bond, which omits the aver- ment that the interest of the persons suing had been specifically ascertained by probate decree, may be amended by adding the omitted word S Mc- Fadden v Hewett, 78 Me 24 Concurrent Condition S In a suit upon a bond, where the acts to be done by the parties, respectively, are to be concurrent, the plaintiff must allege a tender on his part. Drummond v Churchill, 17 Me 325 See Wiley v Cannon, 8 Humph (Tenn) 10 Manner of Statement.

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Abbott v Whipple, 4 Greene Post Date: Sun, 27 Jul 2008 23:56:21 +0000
If the party performed the condition of the bond, he should plead it; it is sufficient for the plaintiff to state, in general terms, the conditio N Mason v Montgomery, Wright (Ohio) 722 In an action on an executor's bond, as against a demurrer to the petition, it is sufficient allegation of breach to set forth the condition of the bond al- leged to have been broken, and to aver a nonperformance of such con- dition, although the petition might be open to a motion to make more defi- nite and certai N Gutridge v Vanat- ta, 27 Ohio St 366 If there is a condition to the bond, and the cause of action arises from its breach, the plaintiff should state that fact, as one of the facts constituting his cause of actio N But this will not affect his right to a judgment in form for the penalt Y Western Bank v Sherwood, 29 Barb ( N Y) 383 1 Alabama Miller v Mclntyre, 9 Ala 638; Montgomery v Montgom- ery, etc, Plank-Road Co, 31 Ala 76; M'Rae v M'Lean, 3 Port (Ala) 138; Hill v Fitzpatrick, 6 Ala 314; Ladd v Smith (Ala, 1892), 10 So Rep 836 Arkansa S Auditor v Woodruff, 2 Ark 73; Irvin v Sebastian, 6 Ark 33; Lyle v Jackson County, 23 Ark 63; Cheadle v Riddle, 6 ' Ark 480; Nunn v Goodlett, 10 Ark 89; Wat- kins v McDonald, 3 Ark 266 California Ghiradelli v Bourland, 32Cal585; People v Love, 25Cal520; Underhill v Sonora, 17Cal172; Anaheim Union Water Co v Parker, 101Cal483; Mills v Gleason, 21Cal274; Farley v Moran (Ca L, 1892), 31 Pa C Rep 158 Connecticut Crosby v New Lon- don, etc, RCo, 26 Con N 121; Adams v Way, 33 Con N 419; Clark v Rus- sell, 2 Day (Con N) 112 Florida Booske v Gulf Ice Co, 24 Fla 551 Georgia Rogers v Mariner, 30 Ga 515 Illinoi S Patrick v Rucker, 19 111 428; St Louis, etc, RCo v Coultas, 33 111 188; Young v Campbell, 10 111 80; McCarthy v Chicago, 53 111 38; Cole v Chapman, 3 111 34; Stearns v Cope, 109 111 340 Indiana McClure v Cole, 6 Blackf (Ind) 290; Strange v Lowe, S Blackf (Ind) 243; Irish v Irish, 6 Blackf (In d) 438; McKay v Craig, 6 Blackf (Ind) 168; Sherry RFores- man, 6 Blackf (Ind) 56; Grant v Whiteman, 5 Blackf (Ind) 67; Fau- 12 Attachment Bond S In an action upon an attachment bond the complaint should set out the bond and the breach of its con- ditions, and allege that the plaintiff in the attachment suit did not have sufficient reason for believing the alleged grounds for attachment to be tru e 1 No action will lie on an attachment rote -v State, 123 Ind 6; Sammons v Newman, 27 Ind 508; Cress v Hook, 73 Ind 177; Winship v Clendenning, 24 Ind 439; Sluyter v Union Cent L In S Co, 3 Ind App 312; State v Harding, 5 Blackf (Ind) 504; Shap- pendocia v Spencer, 73 Ind 133; Lemon v Hay, I Blackf (Ind) 227; Wilson v Lilly, r Blackf (Ind) 358; Parker v State, 8 Blackf (Ind) 292; Hiatt v State, no Ind 472; Cogge- shall v State, 112 Ind 561; Kemp- shall v East, 127 Ind 320; May v Johnson, 3 Ind 449; Robertson v Smith, 129 Ind 422; Midland RCo v Eller, 7 Ind App 216; Wright v Manns, in Ind 422; Lovejoy v Bright, 8 Blackf (Ind) 206 Iowa Clancy v Kenworthy, 74 Iowa 740; Tucker v Silver, 9 Iowa 261 KentucKy Hawkins v Walkers, 4 Bibb (Ky) 292; Governor v Throck- morton, 3 Bibb (Ky) 243; Bixler v Parker, 3 Bush (Ky) 166 Maine State v Peck, 58 Me 123 Marylan d Young v State, 7 Gill J (Md) 253; Armstrong S Robinson, 5 Gill J (Md) 412; Allein v Patti- son, 3Har M (Md)g2 Massachusett S Bean v Parker, 17 Mas S 605; Goodyear Dental Vulcanite Co v Bacon, 148 Mas S 542 Minnesota Hall v Williams, 13 Min N 260 Mississipp I Matthews v Bailey, 25 Mis S 33; Kingkendall v Perry, 25 Mis S 228 Missour I State v Patton, 42 Mo 530; Finney v State, 9 Mo 632; Be- noist v Carondelet, 8 Mo 250 Nebraska Barr v Ward, 36 Neb 90S- New Jerse Y Condit v Baldwin, 19 N J L 143; Crane v Ailing, 15 N J L 423; Cotton v New Providence T P, 47 N J L 401 New York Douglass v Rathbone, 5 Hill ( N Y) 143; Gale v O'Brian, 13 John S ( N Y) 189; Smith v Holmes, 19 N Y 271; Potter v Bacon, 2 Wen d ( N Y) 583; Hughes v Smith, 5 John S ( N Y) 168; Williams v Maden, 9 Wen d ( N Y) 240; Loomis v Brown, 16 Barb ( N Y) 325; De Forest v Baker, i Abb Pr, N S ( N Y SupeR Ct)34; Shaw v Tobias, 3 N Y 188; Miller v New York, etc, RCo, 8 Abb Pr ( N Y Supreme Ct) 431; Hubbard v New York, etc, RCo, 14 Abb Pr ( N Y Supreme Ct) 275; Gauntley v Wheeler, 31 How Pr ( N Y Supreme Ct) 137; McGraw v Mor- gan, 5 Daly ( N Y) 493; Porter v* Kingsbury, 5 Hun ( N Y) 597 North Carolina McGibboney v* Mills, 13 Ire d (N Car) 163 Ohio State v Caffee, 6 Ohio 150; Gutridge v Vanatta, 27 Ohio St 366; Pike County v Sergeant, Wright (Ohio) 482 Orego N Cooper v McGrew, 8 Ore- gon 327; Cook County v Bushnell, 15 Oregon 169 Pennsylvania State v Pray, I Phi La (Pa) 58 South Carolina Hale . Hall, 2- Brev ( S Car) 316; State v Moses, 18 S Car 366 Tennessee Smith v Wilkinson, 5 Cold W (Tenn) 157; State v Wither- spoon, 9 Humph (Tenn) 394; Fassett v Turnage, 9 Humph (Tenn) 686; Haley v Long, Peck (Tenn) 93 Texa S Marshall v Bailey, 27 Tex 686; Wilson v Wichita County, 67 Tex 647 Ver Mont Austin v Dills, I Tyler ( Vt) 308 VirginiaSterrett v Teaford, 4 Gratt( Va) 84; Eib v Pindall, 5 Leigh ( Va) 109; Newman v Graham, 3 Munf ( Va) 187; Watson v Lynch, 4 Munf ( Va) 94; Hammitt v Bullett, I Call ( Va) 567; Gordon v Browne, 3 He N M ( Va) 219; Smith v Lloyd, 16 Gratt ( Va) 295 Washingto N Ferry v King Coun- ty, 2 Wash 337 United State S U S v Thompson, I Gal L (U S)392 1 Bunt v Rheum, 52 Iowa 619 The complaint should allege that the order of attachment was wrong- fully sued out or obtaine d Eaton v Bartscherer, 5 Neb 469; Flanagan v Gilchrist, 8 Ala 620 An allegation that " the attachment bond, or for maliciously suing out an attachment, until the attach- ment shall have been discharged ; and this must be allege d 1 And the damages sustained by the illegal attachment must be specified with particularit Y 8 13 Forthcoming Bond S In an action on an undertaking, by a defendant in an attachment case, to secure the release of the attached property, it is necessary to aver that the attached prop- erty was restored to the Defendant 3 V I ASSIGNMENT OF BREACHES 1 Introductor Y Previous to the Stat8 9 W M II I, C u, 8, the plaintiff not only had judg- ment to recover the penalty of a bond, together with his costs, was wrongfully sued out with wilful wrongfulness," was held a sufficient allegation of want of reasonable belief of the truth of the grounds set out on the part of the plaintiff in the attach- ment. Abbott v Whipple, 4 Greene (Iowa) 320 It is not enough to state that the attachment was quashed and the property released by proceedings in erroREaton v Bartscherer, 5 Neb 469 Nor is it sufficient to aver that the facts stated in the affidavit for attach- ment were not tru e Winchester v Cox, 4 Greene (Iowa) 121 Bond Foundation of Actio N The at- tachment bond is the foundation of the actio N The proceedings in the attachment suit need not be set out at lengt H Uhrig v Sinex, 32 Ind 493; Love v Kidwell, 4 Blackf (Ind) 553; Draper v Vanhorn, 12 Ind 352 Com- pare Morris v Price, 2 Blackf (Ind) 457; Sannes v Ross, 105 Ind 558; Trentman v Wiley, 85 Ind 33 1 Spring v Besore, 12B Mo N (Ky) 553; Noble v Thompson, 3 Mete (Ky) 123 An action upon an attachment bond is dependent upon the defendant in the attachment suit obtaining judg- ment.

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R538 See Howell v Han- Post Date: Sun, 27 Jul 2008 23:40:55 +0000
Crandall v Rickley, 25 Min N 119 2 Winsor v Orcutt, n Paige ( N Y) 578; Rayner v Clark, 7 Barb ( N Y) 5 8 I Where the petition contains only a general allegation that plaintiff has been injured and has sustained dam- ages in a specified amount, plaintiff cannot recover for expenses incurred in traveling to the place of trial or for attorney's fee S State v Blackman, 51 Mo 319 An allegation that plaintiff has sustained damages " by the wrongful attachment, seizure, and detention of the slaves attached, whereby he has been deprived of his property and of the services and wages of the slaves," accompanied with a prayer for the amount of such damages and for gen- eral relief, will not support a verdict for the value of the slave S Cox v Robinson, 2 Ro b ( La) 313 The allegation that plaintiff was compelled to expend "large sums of money, and was put to great expense and trouble in and about defending said action of attachment, to wit, five hundred dollars," will authorize evi- dence touching special damages, such as lawyers' fees, hotel bills, etc Kelly v Beauchamp, 59 Mo 178 Attorney's Fee S In order to recover attorney's fees there must be an allega- tion that the plaintiff has actually paid such fee S Elder v Kutner, 97Cal490 Compare Vorse v Phillips, 37 Iowa 428; Seattle Crockery Co v Haley, 6 Wash 302; Booker v Smith, 38 S Car 228; Alexander v Jacoby, 23 Ohio St 358; Pinney v Hershfield, I Mont 367; State v Pace, 34 Mo App 458; Cunningham v Jacobs, 120 Ind 306; Uhrig v Sinex, 32 Ind 493; Love v Kidwell, 4 Blackf (Ind) 553; Faulkner v Brigel, 101 Ind 329 3 McGonigle v Gordon, n Ka N 167; Williamson v Blattan, 9Cal501; Palmer v Melvin, 6Cal651; Jenner -v Stroh, 52Cal504 Compare Yocum v Barnes, 8B Mo N (Ky) 497; Clark v Thorp, 2 Bosw ( N Y) 680; Bennett v Mulry, 6 Mis C Rep ( N Y SupeRCt) 304; Adams z/ Jacoway, 34 Ark 542; McMillan v Dana, 18Cal340; Coburn v Pearson, 57Cal306 And see also Hanness v Smith, 22 N J L 332; Gaudette v Roeder, 13 Nev 341; Pierce v Whit- ing, 63Cal538; Fisher v Haxtun, 26 Ka N 155; Kanouse v Dormedy, 3 De N ( N Y) 567 but he was also entitled to take out execution for the whole, with- out any regard to the damage which he had actually sustained by the breach of the condition of the bon d 1 But by that statute it was enacted, "that in all actions upon any bond or bonds, or on any penal sum for nonperformance of any covenants or agree- ments in any indenture, deed, or writing contained, if judgment shall be given for the plaintiff on a demurrer, or by confession, or nil dicit, the plaintiff, upon the roll, may suggest as many breaches as he shall think fit." The object of the statute was to compel the plaintiff to show, upon the record in the court of common law, the amount of the debt or damages really due, and to enable the defendant to dispute such amount before a jur Y 2 Therefore where a bond with a condition for the doing of any- thing else but the payment of a gross sum of money is sued on, the plaintiff is bound to suggest breache S 3 1 See Williams' note to Gainsford v Griffith, i Saun d 51 " As the law stood at the time this act was passed, if there was a judg- ment in a court of law for a penal sum, either upon a demurrer or upon a cognovit actionem, or by default, the defendant was exposed to the danger of an execution for the whole penalty, and had no mode of preventing such an inconvenience but by filing a bill in equity; and the statute was penned to prevent such a mischief, by com- pelling the plaintiff to show, upon the record in the court of common law, the amount of the debt or damages really due, and of enabling the de- fendant to dispute such amount before a jury, thus making an appeal to a court of equity altogether unneces- sar Y" Per Lindal, CJ, in Shaw v Worcester, 6 Bin g 385, 19 E C L 109 2 Shaw v Worcester, 6 Bin g 385, 19 E C L 109; Roberts v Mariett, 2 Saun d 187 " This statute was meant to meet the case of nonperformance of covenants and agreements secured by bonds or indentures, and which covenants are to be performed at different times, or the moneys paid by instalments; and extends as well to bonds with condi- tions thereunder written for the per- formance of anything contained there- in, and to penalties on articles of agreement, or the like, for the non- performance of covenants or agree- ments contained in the same articles, etc, as to covenants and agreements contained in another indenture, deed, or writin g" Gainsford z/ Griffith, i Saun d 59; Collins v Collins, 2 BurR824 3 Roberts v Mariett, 2 Saun d 187; Collins -v Collins, 2 BurR820; Hardy v Bern, 5 T R636; Roles v Rose- well, 5T. R538 See Howell v Han- forth, 2 W B L 1016; Ogilvie v Foley, 2 W B L mi; Walcot v Goulding, 8 T.

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L Reg (Pa) Post Date: Sun, 27 Jul 2008 23:28:35 +0000
R126 The statute does not require breaches to be assigned, in a declara- tion on a bond that admits of but one assessment of damage S Williams v Willson, i Vt 274 In an action on a delivery bond it is not necessary to assign breache S Gordon v Atkinson, MorR(Iowa) 195- And breaches need not be assigned on nonpayment of an annuity secured by a warrant to confess judgment on a mutuatu S Shaw v Worcester, 6 Bin g 385, 19 E C L 109 In an action on a money bond it is not necessary to aver a breach in non- payment of the mone Y The bond creates the debt, and therefore it is sufficient for the plaintiff to show the debt due ; and it then lies on the de- fendant to discharge himself Ashbee v Pidduck, i M W 564 The theory upon which the practice depended was, that the obligor, by the penal part of the bond, admitted a debt presently due, and therefore it rested with him to show the continu- ance of the condition on which alone the penalty was deferred; and this applied equally to all bonds, whether the condition was affirmative or nega- tiv e When, on oyer, the condition of the bond was set out, the declaration 2 Where to Assig N The best practice is to assign the breaches in the declaration or complaint. 1 being for the penalty alone, the de- fendant could not demur for the want of an assignment of breach; he must have pleaded performance, or some plea showing a continuance of the condition, to have compelled the plain- tiff to an assignment of breache S Herndon v Forney, 4 Ala 243 See Kerr v State, 3Har J (Md) 560; Tuxbury v Miller, 19 John S ( N Y) 311; State v Hamilton, 10 N J L 190; State v Cross, 6 Ind 387; State S Leonard, 6 Blackf (Ind) 173; State v Votaw, 8 Blackf (Ind) 2; Diller v Wetzler, 10 L BaR(Pa) 5; Longstreth v Gray, i Watts (Pa) 60; Adams v Bush, 5 Watts (Pa) 289; Magill v Higgins, 2 Pitts b (Pa) 107: Co M v Robinson, 3 Pitts b (Pa) 546; Co M v Specht, 4 Luz. L Reg (Pa) 303 ; Postmaster Gen'l v Cross, 4 Wash (U S) 326; Robins v Pope, HempSt (U S)2i9; Burnett v Wylie, HempSt (U S) 197; Campbell v Strong, HempSt (U S) 265; Walcot v Goulding, 8 T R126; D'Aranda z/ Houston, 6 C p 511, 25 E C L 516; Hodgkinson v Wyatt, I d L 668; Hurst v Jennings, 5B C 560 When no Breach Need be Assigne d No breach need be assigned where the defendant does not plead perform- ance generall Y Shelton v French, 33 Con N 489 And where the plea admits non- performance of the condition and re- lies on matter of excuse, the replication need not assign a breac H English v Finicey, 5 Blackf (Ind) 298 And if everything is confessed which is necessary to support the ac- tion, an assignment of breaches is needles S Laidler v State, 2Har g (Md) 277 In an action on a bond conditioned for payment of one thousand poundson a day certain, and for the performance of the covenants in a deed, the defend- ant pleaded a general plea of perform- ance of all things mentioned in the conditio N The plaintiff denied that the defendant paid the thousand pound S Held, that as the plaintiff was proceeding solely on the breach in nonpayment of the money, it was not necessary for him to assign breache S Noakes v Manser, 3 d L 17 Although, to the ordinary condition of a common money bond, upon which judgment has been entered, there is added to and incorporated into the sealed instrument a proviso containing an agreement that the sum secured shall be paid by instalments, yet a suggestion of breaches is not neces- sary if, upon the construction of the condition and proviso taken together, it appears to have been intended that the whole sum remaining secured by the judgment should become payable upon default made as to any one in- stalment.

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1 At Common La W Post Date: Sun, 27 Jul 2008 23:10:33 +0000
Buchanan v Jack, 5 IRR C L 41 Compare Howell v Stratton, 2 Smith 65 ; Cardozo v Hardy, 2 Moore 220, 4 E C L 416; Scott v Staley, 6 Dow L p C 714 1 Alabama Garnett v Roper, 10 Ala 842; Holley v Acre, 23 Ala 603 Illinoi S Hibbard v McKindley, 28 111 240; Foltz v Stevens, 54 111 180 Indiana State v Lane, 4 Ind 163; State v Harvey, 8 Blackf (Ind) 528; State -v Votaw, 8 Blackf (Ind) 2 Marylan d James v State, 3 Md 211 Missour I Fulkerson v Steen, 3 Mo 377 New Hampshire Pickering v Pear- son, 6 N H 561; Rand v Rand, 4 N H 267 New York Munro v Alaire, 2 Ca I ( N Y) 320; Postmaster Gen'l v Coch- ran, 2 John S ( N Y) 413 ; Taft v Brewster, 9 John S ( N Y) 334; Reed v Drake, 7 Wen d ( N Y) 345; Har- mon v Dedrick, 3 Barb ( N Y) 192; Nelson v Bostwick, 5 Hill ( N Y) 37; Spaulding v Millard, 17 Wen d ( N Y) 331 ; Patterson v Parker, 2 Hill ( N Y) 598 Ohio State v Caffee, 6 Ohio 150 Pennsylvania Burkholder v Lapp, 31 Pa St 322 Ver Mont Webb v Webb, 16 Vt 636 United State S Dixon v U S, I Broc K (U S).i77 Englan d Roberts v Mariett, 2 Saun d 187; Quin v King, i M W 42; Canterbury v Burlington, i Dow L, N S 285 When breaches are assigned in the declaration, and the plaintiff has been defeated by the defendant's pleadings, he cannot afterwards assign new breache S Gentry v Barnett, 6 TB Mo N (Ky) 114 Tinder the Cod e And under the Codes of Civil Procedure, if there is a condition to the bond and the cause of action arises from its breach, the breach should be stated with particularity in the com- plaint. 1 At Common La W But at common law, even after the Stat8 9 W M II I, C 11, 8, requiring the assignment of breaches, the general practice was to declare as upon a common bond, or the de- fendant in his plea set out upon oyer the condition of the bond and pleaded performance of it, and the plaintiff thereupon in his replication assigned breaches of the condition for which he sought a satisfactio N 2 When the plaintiff assigns breaches in his declaration, he is not entitled to a scire facias to have his damages for further breaches assesse d Har- mon v Dedrick, 3 Barb ( N Y) 192 If the declaration be substantiallyde- fective in the assignment of breaches, the plaintiff will not be allowed to strike them out after demurrer, on the ground that the declaration is good without the M Watts v Sheppard, 2 Ala 425; Governor v Wiley, 14 Ala 172 Where the condition of a bond re- quires compliance with the terms of another obligation, which are not fully stated in the condition, a declaration upon the bond must set out the obli- gation referred to in the condition, with a corresponding breach; and the omission to do so is erroRPortage Canal, etc, Co v Crittenden, 17 Ohio 436 1 "In my opinion, the code has not changed the law in that respe Ct The action inrfhis court is for the pen- alty; and the judgment, in form, is for the penalt Y If the action is upon a bond for the breach of any condition other than for the payment of money, specific breaches must now, as for- merly, be assigne d The Revised Stat- utes are, in this respect, in forc e The present case is not one of those in which, by the Revised Statutes, it was required to assign specific breaches; and yet I am inclined to think that now breaches should be assigned in all cases, and that this is so from the system of the code, which requires a plain and concise statement of facts constituting a cause of action, and abolishes all the forms of pleading heretofore existin g No cause of ac- tion exists unless there has been a broach of the condition of the bond, and the practice of craving oyer of the bond does not now, probably, exiSt If there is a condition to the bond, and the cause of action arise from its breach, I think the plaintiff should state the fact as one of the facts constituting his cause of actio N" Per Marvin, J, in Western Bank v Sherwood, 29 Barb ( N Y) 386 See, to the same effect, Bunt v Rheum, 52 Iowa 619; Ryder i.

Autor of the post: Undefined

McDole, 106 111 452; Dent Post Date: Sun, 27 Jul 2008 22:53:22 +0000
Thomas, 32 Iowa 56; Colgate -v Roberts, 85 Ind 464; Baker v Cornwall, 4Cal15; Gray v Burden, 55 Mo 158 The omission to allege a breach in the complaint cannot be aided or cured even by verdi Ct Morgan v Menzies, 60Cal341 Attaching a copy of the bond to the pleading as an exhibit is not a com- pliance with a statutory requirement that the condition should be noticed in the pleading itself Ryder v Thomas, 32 Iowa 56 JoindeRIn an action by a ward against his guardian, upon the latter's bond, for several distinct breaches of the condition thereof, they may all be joined in one and the same paragraph of complaint. Richardson v State, 55 Ind 381 2 Alabama Watts v Sheppard, 2 Ala 425; Anderson v Dickson, 8 Ala 733; Davis v Dickson, 2 Stew (Ala) 370 Arkansa S Taylor v Auditor, 4 Ark 574 Connecticut Clark v Mix, 15 Con N 152 Illinoi S McDole^. McDole, 106 111 452; Dent v Davison, 52 111 109 Indiana State v Votaw, 8 Blackf (Ind) 2; State v Kizer, 6 Blackf (Ind) 44; State v Campbell, 8 Blackf (Ind) 138 Maine Machiasport v Small, 77 Me 109 Marylan d Sco// v State, 2 Md 284; 3 Manner of Assignment A NEGATIVING THE CONDITIO N An assignment of a breach by merely negativing the words of the condition is good on general demurrer, whenever such assignment necessarily shows a breac H 1 Clammer z/ State, 9 Gill (Md) 279; Laurenson v State, 7Har J (Md) 339; Laidler v State, 2Har g (Md) 277; James v State, 3 Md 211; State v Norwood, 12 Md 177 Neiv Jerse Y Van Voorst v Morris Canal, etc, Co, 20 N J L 167; Chet- wood v State Bank, 7 N J L 32 New York, Smith v Jansen, 8 John S ( N Y) in; Barnard v Dar- ling, ii Wen d ( N Y) 28; Rogers v Coleman, 3 Co W ( N Y) 62; New York v Lyons, 24 How Pr ( N Y C P I) 280; Van Benthuysen v De Witt, 4 John S ( N Y) 213; Munro v Alaire, 2 Ca I ( N Y) 320; Postmaster Gen'l v Cochran, 2 John S ( N Y) 413 Pennsylvania Curtis v Kearney, 2 Pitts b (Pa) 87 United State S Robins v Pope, HempSt (U S) 219; Burnett v Wylie, HempSt (U S) 197; Campbell v Strong, HempSt (U S) 265 Englan d Gainsford v Griffith, I Saun d 58; Canterbury -v Robertson, 3 TyR419; Johnes v Johnes, 3 Do W i; Homphrey v Rigby, 2 Chit Rep 298, 18 E C L 341; Ethersey v Jack- son, 8 T R255 " In practice it is now most usual not to state the condition or the breaches in the declaration; but there may be cases in which it would be advisable there to state the M The assigning of the breach or breaches is affected by the same rules as those relating to the breach in assumpsit or covenant.

Autor of the post: Undefined

McDole v McDole, 106 111 Post Date: Sun, 27 Jul 2008 22:40:39 +0000
If the breach of the condition be well as- signed in other respects, it will not be vitiated by the superaddition of im- material allegation S" I Chit, on Pldg S 385 Where, in a suit on a bond, the breach is set out in the replication, the replication performs the office of a declaration, and must set out a good and sufficient cause of actio N State v Gaither, 11 Gill J (Md) 160 The Stat8 9 M II I C n, i, does not authorize the assignment of breaches in a replication which traverses a material averment in the ple A Webb v James, 8 M W Where breaches must be assigned or suggested under the statute, if the defendant does not rejoin, the ordinary course is for the plaintiff to sign judg- ment for want of a plea, strike out all the pleadings subsequent to the dec- laration, and suggest breaches, if the declaration itself does not state the M But this is only a rule of convenience; and if the nature of the case requires that the pleadings should continue on the record, they ought to be retaine d Marriage v Marriage, i CB 761, 50 E C L 761; Lawes v Shaw, d M 714 Departur e If the plaintiff assigns one breach in his declaration and a different one in his replication, it is bad on general demurreRHenries v Stiers, 8 N J L 364 Contra, Gover- nor v Wiley, 14 Ala 172 Suggestion on Recor d After judg- ment upon demurrer, or by confession, or by nil dicit, breaches may be sug- gested on the recor d Smith v Jansen, 8 John S ( N Y) in ; West z Caldwell, 23 N J L 736; Seeright v Fletcher, 6 Blackf (Ind)38o; Clark v Good- win, i Blackf (Ind) 74 New Assignment. Any breach of the condition of a penal bond, for which damages have not already been as- sessed, forms the proper subject-mat- ter of a new assignment. McDole v McDole, 106 111 452; People v Com- pher, 14 111 447; People v Harmon, 15 111 App 189 1 Berger v Williams, 4 McLean (U S) 577; U S v Spalding, 2 Mason ( U S) 478; Rozenkrantz v Durling, 29 N J L 191; Hanness v Smith, 22 N J L 332; Morris Canal, etc, Co v Van Vorst, 23 N J L 98; Kar- thaus v Owings, 2 Gill J (Md)43o; Pryor v Beck, 21 Ala 393; Van Mid- dlesworth v Van Middlesworth, 32 Mich 183; Dale v Dean, i6Con N 579; Greene County v Bledsoe, 12 111 266; Brown v Stebbins, 4 Hill ( N Y) 154; M'Geehan v M'Laughlin, I Hall ( N Y) 33; Smith v Jansen, 8 John S ( N YI in; Hughes v Smith, 5 John S ( N Y) 168 Delivery Bon d In an action upon a delivery bond, it is sufficient to nega- tive the delivery of the property ac- cording to the condition of the bond, and affirm that the sheriff returned the The Exception to this Rule is that when such general assignment does not necessarily amount to a breach, the breach must be specifically assigne d 1 bond as forfeite d Cunningham v Cheatham, 8 Ark 187 Liquor Bon d In an action upon a penal bond providing for the payment of a penalty for the illegal sale of in- toxicating liquors held, that it was sufficient to allege a sale for purposes other than those permitted; and it was not necessary to state for what pur- pose such sale was made, nor when, where, and to who M Jones County v Sales, 25 Iowa 25 Production of Certificate S Where the condition of a bond was that the party should (among other things) produce certificates, and other proofs required by law, of the landing of merchandise at a foreign port within two years held, that a breach negativing in the terms of the condition the production of such certificates and other proofs, was well assigne d U S v Spalding 2 Mason (U S) 478 Sheriff's Bon d Where the plaintiffin his replication, assigned a breach of condition of the bond in general terms', to wit, that the defendant had col- lected moneys, as under-sheriff, to the amount of one thousand dollars, which he refused to account for or pay, this was held sufficient.

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Wilcocks v Nichols, i Price Post Date: Sun, 27 Jul 2008 22:28:58 +0000
Hughes v Smith, 5 John S ( N Y) 168 Compare Abbott v Allen, 4 John S ( N Y) 248 Assignment According to Meanin g Assignment of the breach, if accord- ing to the sense and meaning of the covenant, though not in the very words, is sufficient. Jackson v Port, 17 John S ( N Y)479; Condit z/ Bald- wins, 19 N J L 143; Camp v Allen, 12 N J L I Awar d In an action on a bond to perform an award, an assignment of breaches, in the words of the award generally, is sufficient. Wilcocks v Nichols, i Price 109; Hendrickson v Reinback, 33 111 299 See Diblee v Best, ii John S ( N Y) 103 1 Where the condition of abond may be broken by the omission or commis- sion of a single act, the breach may be assigned in the words of the cove- nant; but if it may be broken in various ways the assignee should state the par- ticular breac H Green County v Bledsoe, 12 111 267; Brown v Stebbins, 4 Hill ( N Y) 154; Albany Dutch Church v Vedder, 14 Wen d ( N Y) 165; Rickert v Snyder, 9 Wen d ( N Y)4i6; People v Tilton, 13 Wen d ( N Y) 597; Dale v Dean, 16 Con N 579; Karthaus v, Owings, 2 Gill J (Md) 430 A breach of the condition of a bond to " free the land from all legal in- cumbrances, either by deed or mort- gage, now in existence and binding on the premises, by the 2Oth of Feb- ruary," is not well assigned by follow- ing and negativing the words of the condition, as such assignment does not necessarily amount to a breach, and the plaintiff ought to have shown some existing incumbrance on the 2oth of February, or at the commencement of the suit.

Autor of the post: Undefined

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