In what cases breaches need not ed. sum by instalments, is within the statute. Where the obligee of an indemnity bond was sued for damages in respect of the matter of indemnity, it was held, that in an action against the obligor on his indemnity, he should assign as a breach not only the damages and costs recovered against him, but also his own costs sustained in defending the suit, though he had not then in fact paid the costs.b But the statute does not extend to bonds conditioned for the payment of a sum certain as post obiit bonds, or other bonds for the payment of money, which are provided for by the 4 be assign- Anne, c. 16. s. 13, which empowers the court, pending an action on the bond, to discharge the defendant on payment of principal, interest, and costs;d nor does it extend to bail bonds, or replevin bonds, or petitioning creditor's bond; and where judgment is entered on a warrant of attorney, it is not within the act, even though a bond be given; nor does it apply to cases where the damages assessed are calculated by the jury to meet and satisfy the entire condition of the bond. A bond conditioned for the payment of a sum of money at the end of five years, with half-yearly interest in the mean time, with a 764 proviso that, upon default in payment of interest, the *principal shall be payable, was held not to be within the statute, as to assessment of damages. So it has been held, that breaches need not be assigned in an action brought after March 17th, 1829, on a bond executed in 1827, and conditioned for payment of 5,000l. on the 17th of March, 1829, with interest in the mean time, pursuant to the stipulations of an indenture bearing even date with the bond.k Mode of stating the It is not necessary for the crown to assign breaches under the act; if any one breach be proved, the crown is entitled to judgment for the whole penalty.' The plaintiff may state the condition of the bond in his decondition claration, and assign several breaches under the statute, whereas at common law he could only assign one; or he may declare signing on the bond generally, in which case, if the defendant suffer and as breaches. Willoughby v. Swinton, 6 East, 550. And after judgment obtained upon default of payment of one of the instalments, if a subsequent instalment be in arrear, the plaintiff cannot sue out execution for it, though within a year after such judgment, without first suing out a scire facias to revive it. Id. Harrop v. Armitage, 12 Price, 441. Murray v. the Earl of Stair, 2 B. & C. 82. (9 Eng. C. L. 33.) 2 D. & R. 278. Cordozo v. Hardy, 2 Moore, 220. (4 Eng. C. L. 416.) Wardell v. Fermor, 2 Camp. 285. Ashbee v. Pidduck, 1 Mees. & Wels. 564. Selby v. Lewis, Tidd's Practice, 584. Moody v. Pheasant, 2 B. & P. 446. 'Middleton v. Bryan, 3 M. & S. 155. Sunithey v. Edmonson, 3 East, 22. Smith v. Broomhead, 7 T. R. 300. Shaw v. Worcester, 6 Bing. 385. (19 Eng. C. L. 109.) Per Littledale, J., in James v. Thomas, 5 B. & Ad. 41. (27 Eng. C. L. 27.) 13 Price, 715. j James v. Thomas, 2 Nev. & M. 663. 5 B. & Adol. 40. (27 Eng. C. L. 26.) judgment by confession or nil dicit, or the plaintiff have judgment on demurrer, he may suggest breaches on the roll. So after a plea of non est factum, and that the bond was obtained by fraud and covin, where breaches are not assigned in the declaration, the plaintiff may suggest them under the statute, in making up the issue.b There has been some contradiction in the books as regards the expediency of setting out the condition and breaches in the declaration, or waiting till the replication or other stage in the cause. In practice it is now most usual not to state the condition or breaches in the declaration; but there may be cases in which it may be advisable to state them, as where a plea not leading to an issue or the breach, as non est factum, or the like, or where a judgment by default is expected, for in the latter case some delay would be avoided, and the plaintiff would not have to prove, nor could the defendant deny the truth of the breach, or the execution of the inquiry."(1) 1 Saund. 58. 2 Id. 187, c. 5th Ed. Walcot v. Goulding, 8 T. R. 126. Homfray v. Rigby, 5 M. & S. 60. Ethersey v. Jackson, 8 T. R. 255. 1 Ch. Pl. 369, 6th Ed. Barwise v. Russell, 3 C. & P. 608. (14 Eng. C. L. 480.) Hodgkinson v. Marsden, 2 Camp. 121. Where, in debt on bond, a plaintiff has suggested breaches on the roll, pursuant to the above statute, the court, after plea of non est factum pleaded, refused a rule to show cause why some of them should not be struck out, or judgment by default suffered on them, with entry of nominal damages; for, by the statute, the plaintiff may suggest breaches on every part of the condition, and the jury are to inquire of the truth of them; and the defendant had another course, viz. by pleading performance of the condition, and suffering judgment by default on the replication. Canterbury (Archbishop) v. Robertson, 3 Tyr. 419; 1 C. & M. 181. If the defendant plead any plea on which the plaintiff might at common law have taken issue in his replication, without assigning a breach of the condition of the bond, the plaintiff may still take such issue, and may enter a distinct and separate suggestion of the breaches under the statute, but he cannot incorporate such issue and such suggestion in one and the same replication. But if the defendant plead any plea which made it necessary at common law for the plaintiff to assign a breach in his replication, as, for instance, the general performance, the plaintiff must still assign the breach in his replication, with this difference, that now he may assign several breaches under the statute, whereas at common law he could assign only one. If only one be assigned in the replication, it is not necessary to state it in terms to be according to the form of the statute. Tombs v. Painter, 13 East, 1. 1 Ch. Pl. 370. 2 Saund. 287, b. De la Rue v. Stewart. 2 N. R. 362. Plomer v. Ross, 5 Taunt. 386. (1 Eng. C. L. 136.) 2 Saund. 187, b. (1) (Rees v. Tichenor, 1 Miles, 183. This was an action by a sheriff on a bond of his deputy conditioned for the faithful discharge of his duties. Per Jones, J. The usual course of pleading upon a bond like this is for the plaintiff to declare in debt for the penalty. The defendant then claims oyer of the condition and pleads performance or non damnificatus generally according to the nature of the stipulation. The plaintiff in his replication sets forth the particular breaches, and the defendant rejoins either by way of traverse tendering an issue or by way of confession and avoidance, or he demurs. The plaintiff may, however, set out the condition and assign the particular breaches in his declaration, but by this course he gives the defendant the advantage of pleading, with the leave of the court, any number of pleas to such breach. If the plaintiff assigns the breaches specifically in his declaration, the general plea of performance or of non damnificatus, on which no issue can be taken, is bad. The defendant must answer each breach specifically assigned specially. In regard to the stipulation to indemnify and save the plaintiff harmless, &c., the rules of pleading allow the defendants to plead negatively.) Assigning *The breach of the condition should be assigned with cerbreaches. tainty and particularity; but the superaddition of immaterial allegations will not vitiate a breach otherwise well assigned." Where to debt on bond conditioned to pay money on a day specified, according to the terms and proviso contained in a certain indenture, and for the performance of covenants therein contained, the defendant pleaded, that there were no negative or disjunctive covenants in the indenture, and that he paid the money mentioned in the condition on the day therein specified, according to the effect thereof, and performed all the covenants and provisoes in the indenture on his part to be performed. The plaintiff, in his replication, took issue generally on the non-payment of the money, and concluded to the country. On special demurrer, assigning for causes, that it should have concluded with a verification, and that no breach of the condition was assigned according to the statute; held, that such replication was good, as the only point in issue was the payment of *766 "the money, and as the plaintiff had therein denied the whole substance of the defendant's plea.b Assignment of breaches in debt on bond to perform an award in the words of the award generally, held sufficient, although the plaintiff did not show that the defendant had become enabled to carry it into effect by the circumstances having taken place on which it was to have been performed, the award being held to assume that they had, and the fact of such circumstances not having taken place, as it lay properly within the defendant's knowledge, should be pleaded and set out by him. A plea to a declaration on a bond, conditioned, amongst other things, for the payment of 3000/., that all the sums of money which became due on the bond were paid, may be replied to generally by a general denial of the words of the plea, without assigning any specific breach To debt on bond, the condition of which was, that A. B. should deliver a true account of all moneys received by him in pursuance of his office, the defendant pleaded performance generally. The plaintiff, in his replication, assigned for breach, that A. B. was requested to deliver a true account of all moneys received by him in pursuance of his office, but refused so to do. Held, on special demurrer, that this assignment of the breach was bad, in not alleging, that A. B. had received any moneys by virtue of his office.e If the condition of the bond is, "that A. shall not embezzle any money that shall come to his hand on account of his master, it is necessary in an action against the obligor, to state in ⚫ Stothert v. Goodfellow, 1 N. & Man. 262. Darbishire v. Butler, 5 Moore, 198. (16 Eng. C. L. 393.) Wilcocks v. Nicholls, 1 Price, 109. d Turner v. M'Namara, 2 Chitty, 697. (18 Eng. C. L. 462.) Serra v. Fyffe, 1 Marsh. 441, (4 Eng. C. L. 346,) nom. Serra v. Wright, 6 Taunt. 45. (1 Eng. C. L. 304.) the breach what particular sum of money was embezzled, and how or from whom it was received. To debt on bond, conditioned that one B. R. should account for and pay over to the plaintiffs, as treasurers of a charity, such voluntary contributions as he should collect for the use of the charity, the defendants pleaded general performance; the plaintiffs replied, that B. R. had received divers sums amounting to a large sum, viz, *767 1002., from divers persons for divers voluntary contributions for the use of the said charity, which he had not accounted for or paid over, &c.: it was held by the court, on special demurrer, that the replication was sufficiently certain." SECTION XI. THE PLEADINGS. THE plea of non est factum only operates as a denial of the Non est execution of the deed in point of fact; all other defences must factum. be specially pleaded, including matters which make the bond absolutely void, as well as those which render it voidable. (1) The rules and observations respecting the pleadings in actions of covenant, will, in general, apply to the pleadings in debt on bonds; what will be a good defence in this action may be easily collected from what has been already stated on the subject. It may be observed that, in order to take advantage of a defect not apparent on the face of the declaration, the defendant must crave oyer of the bond and condition, or either of them. But Oyer. if oyer of the bond only be craved, the defendant is not entitled to oyer of the condition unless he craves that also, for the obligation and condition are distinct instruments. Though it is a general rule, that matters inconsistent with, or contrary to, the deed, cannot be pleaded in an action thereon, yet the obligor may plead any matter which shows that the bond is void, though inconsistent with the terms of the condition. In debt upon an obligation without any condition, satisfac- Plea of sation must be pleaded to have been by deed. So where to debt tisfaction on bond, which contained a condition that the defendant or license. C Jones v. Williams, Dougl. 214. Barton v. Webb, 8 T. R. 459. R. Gen. H. T. 4 W. IV. See ante, 696, as to what may be given in evidence under this plea. Cotton v. Goodbridge, 2 Bl. 1108. Samuel v. Evans, 2 T. R. 575. 1 Saund. 9, b. See ante, 690. 'Paxton v. Popham. 9 East, 421. Collins v. Blantern, 2 Wils. 347. See Phillips v. Davies, Hurlst. on Bonds, 137, n. Preston v. Christmas, 2 Wils. 86. (1) (Nil debet is not a good plea in an action of debt on bond. Allen v. Smith, 7 Halsted, VOL. II.-4 *should not open a shop within a certain distance of premises demised in a lease, and the defendant pleaded that he opened a shop by the license of the plaintiff: held, that such plea was bad, on general demurrer, on the ground that a license, after Non dam- breach, was not good, unless by deed. Non damnificatus nificatus. cannot be pleaded to debt on bond, conditioned for the payment of a sum of money at a certain day, though it appear by the condition that the bond was given by way of indemnity. So a plea that it was given as an indemnity to the plaintiff's testator against another bond, and not damnified, was held bad: So a plea that, after the execution of the bond, the plaintiff took from the defendant more than legal interest, was held bad. Payment or per formance. If a declaration in debt on a bond conditioned for the payment of principal and interest, assigns a breach in non-payment of the principal only, a plea is bad, specially demurred to, which avers payment of both principal and interest. If the defendant plead payment or performance, he must show that the condition was strictly performed; but the payment or performance need not in all cases be in accordance with the letter of the condition, a substantial performance, which will carry into effect the intention of the parties, will be sufficient. If a particular day be named for the payment of money or the performance of any other act, it will be a sufficient compliance with the condition, if the money be paid or the act performed on or before the day mentioned in the condition, but the payment or performance must be pleaded to have been on the day, and evidence of payment before the day will sustain such a plea; and the reason is, that if the plea state a payment before the day, and issue be taken thereon and found for the plaintiff, yet he cannot have judgment; for the issue is immaterial, since, notwithstanding this verdict, payment might have been made on the day; but if the issue had *769 been found for the *defendant, it would probably be cured by the verdict. Where a bond is conditioned for payment of money on or before a certain day, the defendant may plead payment before the day if the fact be so; and the plaintiff may reply that it was not paid at the particular day mentioned in the plea, nor at any time before or after that day.h Payment after the day. The bond being forfeited by the non-payment of the money on the day mentioned in the condition, a payment after the day could not be pleaded at the common law; but now, by stat. 4 Anne, c. 16, s. 12, "where debt is brought upon any bond, with * Sellers v. Bickford, 1 Moore, 460. (4 Eng. C. L. 8.) Holmes v. Rhodes, 1 B. & P. 638. Nichols v. Lee, 3 Anst. 940. Mease v. Mease, Cowp. 7. • Bishton v. Evans, 1 Gale, 76.2 C. M. & R. 12. 12 Saund. 47, t. Co. Lit. 212, b. Bigland v. Skelton, 12 East, 436. Hodson r. Bell, 7 T. R. 97. Sturdy v. Arnaud, 3 T. R. 601. Everett v. Eyre, 2 Bing. 166. (9 Eng. C. L. 363.) A 2 Saund. 47, t. 5th Ed. 2 Saund. 48. Fletcher v. Herrington, 2 Burr. 944. Willes, 587, n, a. 1 Bl. 210. |