26 Conn. 121 | Conn. | 1857
If the other objections to the plaintiff’s recovery are untenable, we are of the opinion that the defendants are entitled to judgment, on theiground that the plaintiff’s claim to interest arises solely on the bond executed by the defendants, and that that instrument does not support the declaration in this case.
That this bond would be the foundation of the plaintiff’s claim, independently of the interest-warrants which were attached to it, Would admit of no question. Here the plaintiff’ attempts to support the declaration by those warrants. But, in order to do this, it is necessary that they should be instruments' of such a character that they would, of themselves, support an action. We are by no means prepared to say, that if these warrants were executed collaterally to the bond, and imported a promise to pay the interest at the times it accrued, they would not themselves sustain an action brought specially upon them, or be evidence under a general indebitatus count in an action of debt. But this is not their character, nor is such their import or design. No promise is expressed in them, nor, when they are considered, as they should be, in connection with the bond, can any be properly implied. The bond acknowledges a certain indebtedness, payable at a certain time, “ with interest thereon, at the rate of six per cent, per annum, payable half yearly, on the first day of February and the first day of August in each year at the office of [the defendants] in New London, on delivery of the annexed warrant therefor.” A separate warrant, similar in its form .to those produced on the trial, for the amount of each of the installments of interest which would, by the terms of the bond, accrue on it, and designating the time when it would be payable, was annexed
Hence no action can be sustained on them as instruments or promises. Considered as admissions, it will be seen that they imply no indebtedness generally, but only an acknowl-. edgement of a liability on the bond, and it is quite clear that an admission of such a liability or indebtedness lays a foundation for no action except on that instrument. The plaintiff’s cause of action being founded on the bond, it was plainly necessary for him to declare on it. It is a principle too familiar to require authorities, that when a cause of action is founded immediately upon any stipulation in a deed, the deed must be pleaded, that is, described or set out in the declaration. The only exception to be found to this rule, if indeed there be any, is the case cited by the plaintiff, of debt for rent reserved upon a lease by deed, where it is said the deed need not be declared on; but that rests on a peculiar ground which has no application to the present case. Atty v. Parish, 4 Bos. & P., 109.
The only plausible ground on which it can be claimed that the plaintiff is entitled to recover in this case, is, that although the rules of pleading require that a deed, where the cause of action is founded on it, should be stated in the dec
We therefore advise judgment for the defendants.
In this opinion the other judges concurred.
Judgment for defendants advised.