Postmaster-General of the United States v. Cochran

2 Johns. 413 | N.Y. Sup. Ct. | 1807

Kent, Ch. J.

This was a suit on a bond for thp performance of covenants, and the plaintiff elected to assign breaches, in the first instance, in his declaration.— This he had a righto do, and it has even been recommended as the preferable mode. He assigned several breaches, and this also was lawful, and so it was held by this court in the case of Munro v. Alaire. (2 Caines, 328.) The plaintiff was sufficiently particular in the assignment of breaches. It is not presumed to have been within his knowledge or power to specify évery particular sum received by the defendant, and from whom, and at what time; and if it could have been done, it would have led to gr'eat and unnecessary prolixity. If the declaration be tested by the rules which have been applied to the replication, when that contains the special assignment, it will be found to be sufficiently minute and particular. (2 Saund. 411. note 4. and the authorities there cited.) The question, then, upon the record in this case, comes to this, whether the genei-a! plea of performance to a declaration containing a particular assignment of breaches, be good ? This, I think, cannot be maintained. The defendant was bound to meet the allegation of specific breaches by something move than a general plea of performance. He ought to have shown when, how, and where he performed his covenant in those particulars, for the facts must lie with in his knowledge. Issue cannot be taken on a general plea of performance, and the plaintiff, if" driven to reply, would have been obliged to repeat his declaration. When á particular breach is assigned, the defendant has an affirmative offered, upon which he may take issue. The usual course of pleading upon these bonds has been, for the plaintiff to declare in debt for the penalty, the defendant to crave oyer, and plead a general performance, the plaintiff to reply and set forth particular breaches, and the defendant to rejoin to those breaches, and take issue thereon. The plea of general performance was anticipated, and precluded, in the present case, by the assign-' ment of breaches in the declaration, and the general course of pleadings abridged, so thajydie defendant was bound to meet the declaration'as he would have been, in the other mode of pleading, to meet the replication. I am, accordingly, of opinion that the plaintiff is entitled to judgment on demurrer.^(a)

Spencer, J. and Van Ness, J. concurred. Thompson, J. not having heard the argument, gave no opinion.

Judgment for the plaintiff.

(a) When the condition of the assignment of a bond was that the plaintiff should “take the necessary legal steps to enforce payment,” by the obligor, a general averment is insufficient lie should set out specially what steps he took, Ridgway v. Forsyth 2, Hals. 93.