Morrow v. Parkman

COLLIER, C. J. The first, third, sixth, and twelfth pleas substantially alledge, that the defendant, Parkman, surrendered himself to the sheriff of Dallas, previous to the breach of the bond declared on, within sixty days after its execution, with the intention bona fide of performing the condition, and discharging his sureties. These facts constitute an available defence to the action, and a plea which sets them out, in proper manner, must be good. Morrow & Nelson v. Weaver & Frow, 8 Ala. Rep. 288. It is alledged in the second plea, that Parkman continued a prisoner within the prison bounds as established by law, [774] according to the terms of his bond, until he was discharged by due course of law. This plea is a direct answer to the breach averred, that he did not remain within the prison limits, until legally discharged, but went beyond the same; and consequently was well sustained by the circuit court. Where an action is brought on a bond for the performance of several specific things, it has been held that a plea of performance generally, is bad on demurrer; for the particulars being expressed in the condition, the defendant should plead specially to each. This rule it is said admits of relaxation, where the subject comprehends such multiplicity of matter as would lead to great prolixity: so where the condition is for the performance of matters set forth in another instrument, and these matters are in an affirmative and absolute form, and neither in the negative or disjunctive, a general plea of performance is sufficient. And where a bond is conditioned for indemnifying the plaintiff from the consequeces of a certain act, a general plea that he has not been damnified, is proper, without shqwing how the defendant has indemnified him. But it is said that this general mode of pleading will be improper, where the covenants or other matters mentioned in the collateral instrument, are either in the negative or disjunctive form; and with respect to such matters, the allegation of performance should be more special, so as to apply exactly to the tenor of the collateral instrument. The reasons why the general allegation of performance does not properly apply to negative or disjunctive matter are, that in the first case the plea would be indirect, or argumentative in its form — in the second, equivocal. In either, it would be objectionable for want of particularity and certainty. Step. Pl. 334, et seq.; 359, et seq. In debt or covenant on a bond, conditioned for the performance of covenants, if all the covenants are in the affirmative, the general plea will be sufficent. Bailey v. Rogers, 1 Greenl. 186. Covenants performed, is a good plea, where the covenantor stipulates for the doing or performing any particular act, but where the breach of covenant depends upon the happening of an extraneous collateral fact, such a plea is not good. And it has been held, that where a covenant [775] includes a variety of matters to be performed, &c. the averment of performance should set forth in detail, how it has been done. Young v. Whitaker, 6 Monr. Rep. 325. So if the defendant has been prevented from performing, he should state in what manner. Read v. Cisney, 4 Lit. Rep. 137. In the Commonwealth v. Gower, 4 Litt. Rep. 280, it was decided, that although it was competent for the defendant to plead performance generally to affirmative covenants, yet where the declaration alledges a specific breach, it is incumbent on the defendant to respond specifically, and not protract the pleadings by throwing on the plaintiff the necessity of repeating in a replication, the breach alledged in his declaration before an issue is formed. See also, Commonwealth v. Miller & Gray, 5 Monr. Rep. 211. The condition of the bond in the case before us, required Parkman to continue a prisoner within the prison bounds of Dallas, until he was discharged by due course of law. Here the undertaking of the defendants was in terms affirmative, yet the law prescribes several modes in which their principal might be discharged from the obligation of his bond. In legal effect, then, the condition is the same as if it had set out these disjunctively, as so many alternatives, by a compliance with either of which the boud would become void. This being so, and the declaration alledging a specific breach, according to the authorities cited, the defendants should have pleaded specially, how their undertaking had been performed, or its obligation discharged. The ninth plea in this respect is defective, and the demurrer to it should have been sustained. It is difficult to perceive what effect Parkman’s petition for a habeas corpus to the judge of the circuit court could have upon the issues submitted to the jury; but if it was pertinent and material, the error of its rejection was repaired by the subsequent assent of the defendants to its admission ; and this although the plaintiff refused to avail himself of it. The objection to the testimony of Mr. Edwards, was placed upon the broad ground that he was the defendant’s counsel ; for it is shown affirmatively that the amount of his compensation was not contigent, depending upon the result of the cause. We have heretofore considered whether the re [776] jection of a witness thus situated, is demanded by considerations of public policy, and have held that an attorney and counsel in a cause may be examined as a witness, where he is not interested in the event. Conceding, that Parkman may have made a fraudulent transfer of his property, about the time of his arrest under the ca. sa., and the defence set up by his sureties is not in any manner impaired. Property thus disposed of may be subject to his debts ; or he may be answerable criminally, if he has obtained a discharge by falsehood or fraud. But a fraud in this respect does not tend to negative the fact of the bona fide surrender of the debtor’s person to the sheriff, or the regular administration of the oath of insolvency, and the consequent order for his release. From this view it results, that the refusal to permit the witness, Ferguson, to narrate the facts proposed was altogether proper. The charge of the circuit court, in respect to the intention of Parkman, in surrendering himself to the sheriff, was confessedly proper, but it is objected that the judge should’ not have said to the counsel,-in the presence of the jury, that the question whether his surrender was colorable was believed to be abstract, and that it was difficult to conceive a case of a colorable surrender, where the debtor gave himself up to the sheriff. If the facts did not throw suspicion over the bona fides of the debtor’s intention in surrendering his person, the sheriff recognized him as his prisoner, and he admitted himself in custody, we agree with the circuit court, that it is not easy to perceive upon what ground the surrender can be held to be simulated. Even if these remarks had been addressed to the jury instead of the counsel, we cannot think they would have been improper. They were perhaps nothing more than a proper caution, to direct their inquiries' in considering . the effect of the charge upon the evidence,, leaving them to consider the charge as a declaration by the: court of the law on the point. For overruling the demurrer to the ninth plea, the judgment is reversed and the cause remanded.