9 Johns. 334 | N.Y. Sup. Ct. | 1812
The bond must be considered as given by the defendants in their individual capacities. It is not the bond of the Baptist church; and if the defendants are not bound, the church certainly is not, for the church has not contracted either in its corporate name, or by its seal. The addition of trustees to the names of the defendants is, in this case, amere descriptio personamm. But there is one special cause of demurrer well taken, and that is, that the declaration is double, in assigning two distinct breaches^/ Several breaches may be assigned, under the statute, oirs. bond for the performance of covenants, or other colMeral matter; but this is not a bond within the act, for it is a bond for the payment of money only. The case is, therefore, to be governed by the common law rules of pleading, which would not permit the assignment of more than one breach, because one • was sufficient to forfeit the bond, and entitle the plaintiff to the pe= malty. If, therefore, a bond was conditioned to pay several sums of money at several days, a non-payment of any sum would forfeit the bond; and the plaintiff was permitted to assign a breach only of one of the payments, as, otherwise, it would be double; and duplicity is still bad on special demurrer. (2 Vent. 198. 1 Roll. Rep. 112. Cro. Car. 176.) Judgment must, therefore, be given for the defendants, with leave, nevertheless, to the plaintiff to mend on the usual terms.
a) See Jackson v. Walsh, (3 Johns. Rep. 226.)
