| Ala. | Jan 15, 1849
We must consider the second .and third pleas as averring nothing more than a general performance of the condition of the bond, and the question is therefore presented, whether a defendant can plead generally, conditions or covenants performed, to a declaration that sets out a specific breach. In the case of the Commonwealth, use of Carswell, v. Gower, 4 Litt., 279" court="Ky. Ct. App." date_filed="1823-11-26" href="https://app.midpage.ai/document/commonwealth-ex-rel-carswell-v-gower-7383115?utm_source=webapp" opinion_id="7383115">4 Littell, 279, the plaintiff declared on a bond executed by Gower, conditioned faithfully to .perform the duties of jailer. The declaration set out a specific breach of the condition, and the defendant pleaded condition performed generally, without setting out the mode or the manner of the performance. To this plea there was a demurrer. The supreme court of Kentucky held the plea to b.e insufficient ; and in the opinion delivered, said, “ that an actioe on a deed
This we hold to be the correct mode of pleading, and although a defendant may plead performance generally, when no breach is assigned, and thereby compel the plaintiff in his replication to set out the breach on which he relies, yet when the plaintiff assigns specially, the breach of the condition in his declaration, the defendant should plead specially to it, and set out the mode and manner of the performance. The propriety of this mode of pleading will be more apparent, if we reflect, that a condition in a deed may be performed by doing one of two or three distinct things; and if the plea of performance is good, to a declaration setting out a particular breach, the court could not, by examining the record, ascertain the distinct facts put in issue; nor would the plaintiff be informed of the facts, that the defendant relied on as a defence. For instance, the condition of the bond declared on, might be saved by payment of the debt, or the defendant might have made a surrender of his effects, and taken the benefit of the insolvent laws ; or might, at the expiration of sixty days, have surrendered himself to close confinement; either of those acts would have saved the condition of the bond ; but which he intended to rely on by the plea of general performance, could not appear; and to hold that the plaintiff should repeat in a replication, the assignment avered in the declaration, to which the defendant should rejoin specially, and in his rejoinder state how the condition was performed, would be to lengthen out the pleadings, and swell the record for no practical purpose whatever.
But it may be said, as the second plea avers, that the defendant, Parkman, did not remain a prisoner, &c. until discharged by due course of law, that the manner of the performance is sufficiently stated. But if we were to consider this in any other light than the plea of performance generally, we would have to intend, that the defendant averred, that
The eighth and ninth pleas show, that Tate, for the use of Edwards, instituted a suit against Parkman, in which judgment was rendered, and a ca. sa. issued, but before the bond was executed, Tate died, and the question is, can the plaintiffs, as his executors, maintain a suit on it ? It is evident that Tate, the testator, could take no legal right in the bond. There was no such person in esse and no legal rights can vest in the dead. Death strips us of all our legal rights, and casts them upon others. If, however, a right is vested in-one, whilst in life, his executor may assert it, if it be a chattel interest, after his death, although no cause of action accrued whilst the testator lived.
The fourth plea, we consider as nothing more than the plea of non est factum, which being verified, was a sufficient bar. As the court erred in overruling the demurrer to the second and third pleas, the judgment must be reversed, and the cause remanded, if the plaintiff in error desires it.