Supervisors of Jackson Co. v. Leonard

Moore, Judge, delivered the following opinion of the Court: The seeming contrariety of opinion upon the subject before us, induces me to give more full quotation from judges and text-writers than is, perhaps, really necessary in solving the question presented by this case. In Graham v. Bickham, 4 Dall. 149, defendant, by a written agreement not under seal, agreed to pay Graham $22,318.49 in specie, for $17,344.76, six per cents of the United States, and bound himself, “for the faithful performance” of the agreement, in the sum of £1,000, “to be paid to said Graham, or his order,” in case the agreement was not fully complied with by the defendant. On the trial of an action on the case for damages, laid in the declaration at £10,000, founded on said agreement, verdict was found in favor of plaintiff, for £1,798 17s, Id, subject to the opinion of the court on the question, whether the plaintiff could recover more than £1,000, in an action upon this agreement. The Supreme Court of Pennsylvania held : “The substance of the agreement between the parties was, to buy and sell stock. The penalty was merely superadded as a security for performance ; and not as a sum to be paid and received absolutely in lieu of performance. The plaintiffis entitled (notwithstanding the penalty), to recover damages, commensurate with the injury suffered by a non-performance.” Martin v. Taylor, 1 Wash. C. C. 1, was covenant upon an agreement under seal, whereby the defendant, in consideration of a Virginia treasury land warrant for twenty thousand acres of land, which he acknowledges to have received of the plaintiff, and of a sum of money — 482 — agreed by plaintiff to be paid on the performance of the work, stipulated by the defendant, agrees to enter the said warrant on vacant and unappropriated land in the State of Virginia, of a particular description, and to have the same surveyed and regularly returned, all at the expense of the defendant, except the surveyor’s fees. The defendant in another clause of the agreement, covenants, immediately on receipt of said warrant, to proceed to locate and survey, Ac. The parties for the true and faithful performance of all and singular the covenants, &e., bind themselves each to the other in the penalty of £120 Virginia currency. A new suit was moved for, on the ground that the £120 was in lieu of liquidated damages, and that as the plaintiff could recover no greater sum than that, the court had no jurisdiction of the case. Washington, Judge, held that: “Where there is a penalty in an agreement under seal, the party injured, may, at common law, sue for the whole penalty, and must be satisfied with it; or he may bring covenant, and recover in damages more or less than the penalty. (4 Burr, 2225, 6 Bro. Par. Cases, 470.) If in the latter case, the sum stipulated to be paid is not a penalty, but intended as a compensation for non-performance, it must govern the jury in the assessment of damages. But that is not the present case;” &c. As stated in Sedg. on Dam. p. 426, note referring to this case, it is to be remarked that the agreement contained an express covenant to do the act, for the non-performance of which the action was brought. The case therefore decides nothing as to the main point, whether covenant can be brought on a bond upon an agreement contained in the condition, and whether in such suit damages can be assessed beyond the penalty?” Sedgwick on Measure of Damages, pages 424-426 says: “There is a clear distinction between a covenant in which the party, affirmatively stipulating to do or to refrain from doing some particular act, proceeds to. secure his agreement by a penalty, and the common — 483 — bond, .which merely stipulates for the payment of a sum of money, and makes its payment depend on a condition; for the performance of that condition there is no promise, unless one can be implied from the joint effect of the condition and penalty, and hence results the inquiry, whether in the action of debt on bond the damages can be carried beyond the penalty. “The question has been much agitated as to damages in gross, and also as to interest, and both as against a principal and against a surety. The American rule to be deduced from all the cases seems to be, that against a surety in debt on bond, nothing shall be recovered beyond the penalty; that against the principal in that form of action, interest may be recovered beyond the penalty. While in England the penalty appears in all cases, ex-' cept perhaps in equity, to be the absolute limit. But in neither country can damages in gross be recovered, against either principal or surety, beyond the penalty. “If, on the other hand, the action of covenant be brought on an absolute and not a conditional undertaking, then the penalty is merely a security, and the party, whether principal or surety, may be sued as often as damage is sustained. But the question, what is an absolute and what a conditional undertaking, still remains. Does an ordinary bond imply an agreement to do the thing, on condition of the performance of which the penalty is to become void ; and can an action of covenant be brought on it ? “This is an embarrassing and vexed question. Mr. Chitty says, (1 Chitt. PI. 132), it seems that covenant lies on a bond, for it proves an agreement.’ It is doubtful what is the purport of this language. A bond undoubtedly proves an agreement; but is the agreement proved, the one stated in the penalty — to pay the money for which the obligee declares himself bound — or in the condition? The matter is of importance, and it seems impossible, on any just construction of the agreement of the instrument, to imply from the condition an absolute — 484 — agreement. This is not the proper place for a more elaborate discussion of the matter, but it could not with propriety be altogether overlooked. I cannot, however, say that the opinion here advanced is supported by any judicial authority; on the contrary, in New York, the Supreme Court has clearly intimated an opinion, that an action of covenant will lie on a bond to enfore the condition.” The New York case to which Mr. Sedgewick refers, is Clark v. Bush, 3 Cowan 151, an action of assumpsit. Bush & McCracken gave their note to Barney Novem-. ber 2, 1815, for $2,000.00, payable October 9,1820, with interest, to be paid annually. Bush pleaded the general issue, payment and a release, and gave notice that there would be given in evidence a release of the testator (Barney) of all debts, dues, claims and demands of what name or nature soever existing against the firm of Bush & McCracken, with the necessary and proper averments, &c.; also that Barney in his lifetime, together with Mc-Cracken, executed to Bush a bond, bearing date October 1, 1816, in the penal sum of $3,000.00, with condition, that if Barney (testator of plaintiffs) and McCracken, their heirs, &c., should well and truly, at all times, indemnify and save harmless Bush, his heirs, &c., from and against all debts, dues, claims and demands of what name or nature soever existing against the firm of Bush & McCracken, including as well all debts and demands then due by and from the firm, as all contracts theretofore made by them in and about the firm of Bush & Mc-Cracken, by means of which contracts Bush might, in any manner thereafter, be made liable; then, &c.; else, &c. Plaintiffs proved the note sued on, upon which was endorsed $140.00 November 2, 1816, for interest, the balance due being $2,807.33. Bush then produced and proved the bond set forth in his notice; plaintiffs then produced and proved two receipts from Bush, showing that he had been paid by the executors of Barney, to the amount of the penalty by way of indemnifying Bush — 485 — against other debts due from the firm of Bush & Mc-Cracken. The plaintiffs then insisted that the penalty of the bond being satisfied, it did not operate as a release of their demand, or in any manner bar their right to recover on the note of $2,000.00. "Verdict for plaintiffs for $2,807.33. The court held, that the plaintiffs should recover on the $2,000.00 note; Savage, Chief Justice, thought the weight of authority was “ in favor of the doctrine, that in debt on bond nothing more than the^penalty can be recovered ; at any rate, nothing beyond that and interest, after a forfeiture, even against the principal obligor. But admitting the doctrine to apply as laid down by Lord Mansfield in Lowe v. Peers, 4 Burr. 2225, and that an action of covenant would lie on the bond in question, in which form Bush might recover the whole amount necessary to a complete indemnity, (see also Winter Trimmer, 1 Bl. 395, and Perkins v. Lyman, 11 Mass. 83) > still it is clear thj|t this can hold only as to McCracken, the principal, but not against Barney, who was a surety, and the extent of whose liability is the penalty of the bond.” Judge Savage in commenting on the English and American cases cites the language of Lord Mansfield in Lowe v. Peers, 4 Burr. 2225, as follows: “There is a difference between covenants in general, and covenants secured by a penalty or forfeiture. In the latter case, the obligee has his election. He may either bring an action of debt for the penalty and recover the penalty; (after which recovery of the penalty he cannot resort to the covenant; because the penalty is to be a satisfaction for the whole); or if he does not choose to go for the penalty he rnay proceed upon the covenant, and recover more or less than the penalty toties quoties.” Judge Savage then says : “ This dictum of Lord Mansfield was not called for by the case, nor is any adjudged case cited. It is however considered good law by Espinasse in his law of nisi prius (2 Esp. N. P. 279).” And Wilde, Judge, in Stearns — 486 — v. Barrett, 1 Pick. 449, cited by appellants’ counsel, approves Lord Mansfield’s language in Lowe v. Peers. In the case of United States v. Brown, 1 Paine, C. C. 422, the action was covenant on a bond, in the penalty of $5,000.00, by which the defendant and Jacob Brown, acknowledged themselves to be held and firmly bound to the United States in that sum, and for the payment of which they bound themselves jointly and severalfy, with a condition, that if the said Samuel Brown, Jr., “shall well and faithfully account for all public monies that may come into his hands, as Deputy Quarter-Master-General, and faithfully account for, and distribute all public property that he may receive into his charge, then the obligation to be void, else to remain in full force and virtue.” The question arising upon demurrer to the declaration was, whether d.ebt or, covenant was the proper action upon the bond? Admitting the contrariety and uncertainty of opinion both of elementary writers and adjudged cases on the question, Thompson, Judge, delivering the opinion of the Circuit Court of the United States, enunciated the principles as follows: “ The general rule however is, that the action of covenant is not confined to any particular words, but may be maintained upon any sealed instrument, where the words import an agreement. But where the words do not amount to an agreement, covenant will not lie. In the present case, covenant might probably be maintained, upon the penalty of the bond, if the breach was properly assigned. It contains an acknowledgment of an indebtedness to the United States of $5,000.00, and a promise to pay. But the breach of the covenant would be the non-payment of the $5,000.00, in part or in whole. The first count in the declaration sets out that the defendant did covenant to pay to the United States the sum of $5,000.00, and had the breach assigned been the non-payment of the money, it might have been unexceptionable, but the breach assigned is, that the defendant refused and neglected to pay out and distribute, or account for the — 487 — money and public property which he had received, as Deputy Quarter-Master-General. The breach assigned ' does not therefore come within the covenant, as set out. It is not alleged in the first count, that the defendant covenanted, or agreed to covenant for such money and public property, or to pay out and distribute the same. The breach assigned must always be clearly within the covenant.” The next question considered by Judge Thompson was, whether an action of covenant will lie upon a mere condition or defeasance in a penal bond, relating to some collateral matter, and not for the payment of money ? Upon that question he enunciated the doctrine : “If covenant can be maintained upon the condition of the bond, it must be because it contains per se an agreement to do some act. But there are no words in the condition importing an agreement. It merety sets out what shall avoid the covenant or obligation contained in the penal part of the bond, and is for the benefit of the obligor, and showing the terms and conditions upon which he can exonerate and discharge himself from th'e debt he has acknowledged he owed the obligees. The condition when taken by itself is senseless and imperfect as a contract. Although there is some uncertainty as to what words shall be deemed to amount to a covenant, I think it may be laid down as a safe conclusion, that covenant will not lie upon words in an instrument inserted by way of condition or defeasance, by the performance of some collateral act. It may be pret'y safely affirmed, that covenant upon this condition cannot be sustained against Jacob Brown, the surety. He is not even named in the condition, and there are no words which in any shape or manner import an agreement on his part, either himself to account for the faithful expenditure of public money, and the distribution of public property, or that the defendant shall do it. If covenant will therefore lie against the defendant, it presents the singular case, that upon the same instrument one kind of action — 488 — will lie against, one of the obligors, which will not lie against the other. It is unnecessary to decide, whether in all cases where covenants are secured by a penalty, the extent of damages is limited to such penalty, as against the principal. It certainly is, so lar as relates to the surety. And if, as against the principal, damages may be recovered beyond the penalty, we have a case where, upon the same instrument, there is one rule of damages for one obligor, and a different rule for the other. Such incongruities, I apprehend, are not sanctioned by the law.” Demurrer was sustained. In the case of Ward v. Johnston, 1 Munf. 45, covenant was maintained by Johnston against Long and Ward on a joint and several bond in the penalty of £400, whereby it was conditioned after reciting that Long had bargained and sold to Johnston a certain tract of land, that if the above bound Long, and Ward his security, “doth make unto said James Johnston, his heirs, executors or assigns a clear deed in fee simple to the said tract of land,” at or before a specified time, the obligation was to be void, otherwise to remain in full force and virtue. The breach assigned was that such deed was not made and delivered. The bond exhibited was in the usual form of a joint and several bond, the condition corresponding with that set forth in the declaration, except that a proviso added thus : “ Provided that, if default be made by the said Long, the said Johnston doth agree to take the sum of two hundred pounds like moneyas aforesaid, with lawful interest from this date.” Wickham argued in that case, that covenant would not lie against Ward, as he was only surety, and so named in the condition of the bond given by him and Long, the principal, for making' a title to the lands in question. Tucker, ■Judge, reasoned that, “the condition is, that the bond shall be void, if Long and Ward, his security, make unto the plaintiff, or his heirs, &c., a clear deed in fee simple for the lands. Now Long and Ward might have been joint tenants or tenants in common, or coparceners in the — 489 — land; in which case both must have joined in the con-veyanoe, though one only had sold to the plaintiff; and since the condition imports that something is to be done by both the seller and the security, (and not by either of them singly), we must suppose it was understood by both parties that something was necessary to be done by both. Therefore, an action of covenant, I conceive, will lie against both.” Mr. Robinson in his New Practice, vol. 3, p. 365, citing this case, says: it is “to say the least, of very questionable authority,” and directs attention to his New Practice, vol. 2, p. 40. He also directs attention to the fact, that the case was cited in Ohio in Huddle v. Worthington, 1 Ohio 195, (mispaged 424 in Robinson), in an action of covenant on a bond, conditioned that Worth-ington should convey on or before a specified day, a tract of land to Huddle, by a good and sufficient general warranty deed, in fee simple, then the obligation to be void, <fcc. The declaration not noticing the penal or obligatory part of the bond, but charging a covenant in the words of the condition, it tvas held, that an action of covenant could not be sustained upon the condition, separated, as it is in the declaration, from the penal or obligatory part of the bond. But the Court said, “it might be different, if the entire bond was declared on, as in the case in first Munford, stating that the covenant was made under the penalty in the obligatory part specified. Upon demurrer, judgment was given to defendant. Subsequently, the same Court held, in the case of Maria Abrams v. Hiram Kounts and John Quinn, in an action of covenant, that covenant could not be maintained upon the following writing obligatory : “Know all men by these presents, That we, Hiram Kounts and John Quinn, of the county of Columbiana, and State of Ohio, are held, and firmly bound, in the penalty of $1,000.00, for the true performance of a marriage contract, which the said Hiram Kounts engages to perform with Maria Abrams, of Brooke county, Vir — 490 — ginia, against the eighth day of February next. The conditions of the obligation are such, that if lhe above bound Hiram Kounts, does well and truly perform the above obligation, this obligation to be void, otherwise/’ &c, Upon demurrer, the Court held, that the penalty of the bond could not be regarded as liquidated damages, and that the instrument is not one upon which covenant can be maintained. 4 Ohio 214, cited in 3 Rob. Prac. 365, (New ed.,) which also cites the case of United States v. Brown, which Mr. Robinson follows with this language : “There appears then to be torce in the objection taken in the argument of Ward v. Johnson, that covenant will not. lie on the condition oí a bond, unless there be an agreement in the condition thatitshall be performed.” He also states, that: “ What has been said in 2 Rob. Pract. 37-40, as to what words do and what do not amount to a covenant, supports the conclusion to which Thompson, Judge, came, that covenant will not lie upon words in an instrument inserted by way of condition or defeasance by the performance of some collateral act, Paine 424.” Mr. Sedgwick in a note to his treatise on damages, page 425, (second edition), referring to 1 Chitt. PL, 131, says: “Mr. Chitty cites several cases: Hill v. Carr, 1 Chy. Cas., 294; Holler v. Carr, 3 Swans., 648, which is in fact the same; Norrice’s Case, Hardress 178, and Com. Dig. Covenant, (A. 2.) The two first cases (in fact one), contain the obiter dictum, that “ covenant lies upon a bond.” The third was covenant on a covenant proper; the word oblige only being used instead of the usual phrase; and Lord C. B. Comyns, with his usual precision, says, “ covenant lies, if an agreement appear in an obligation:” This is unquestionably true, if the agreement appear. But in the condition of a bond to do or refrain from doing any particular act secured by a given penalty, does any agreement appear, absolutely to do the act, or respond in indefinite damages? Practically, we well know that it is not so understood; the — 491 — obligor always considers the penalty as limiting the extent of his obligation.” It is true, no particular words are required to make a covenant. Any words which import an agreement between the parties to a deed, will be sufficient for that purpose. Com. Dig. Cov. (A. 2,) citing Hallett v. Wylie, 3 Johns. 44; Harris v. Nichols, 5 Munf. 483. And covenant lies when a man covenants with another, by deed, to do something, and does it not. Com. Dig. Cov. (A. 1.) It appears plain from all authorities, that to sustain an action of covenant upon a bond, there must appear in the condition an agreement to do the specific act secured by the penalty of the bond; and if such agreement does not appear, then the true remedy is to sue the obligor on the bond for the penalty, to be discharged by the payment of the damages sustained by the obligee, as provided by section seventeen, chapter one hundred and thirty-one, Code of West Virginia. The Supreme Court of Missouri refused to sustain an action of covenant on a sheriff’s bond, against the sheriff and his deputies, in State, to use of Crawford and Adams v. Woodward et al., 8 Mo. 225, top page. The declaration contained two breaches of the condition of the bond, with averment that the defendants had not paid the penalty ; to the declaration defendants demurred and the demurrer was sustained by the court. The question before the Supreme Court, was: Whether an action of covenant would lie on a sheriff’s bond? Scott, Judge, in the opinion of the court, said : “ It is clear that, by the common law, an action of covenant was a concurrent remedy with debt on a single bill obligatory, or a penal bond, subject to be defeated by the performance of conditions. In such an action, the breach of covenant would be the non-payment of the debt in the one case; in the other the non-payment of the penalty, and on that breach damages would have been assessed equal in amount to the penalty ior which judgment would have been rendered, and the defendant, in order to obtain re — 492 — lief against the penalty, was driven to his bill in equity. This being found oppressive, the common law wasaltered by the statute of 8 and 9 William III. Our statute regulating actions on penal bonds is similar to the English law, and declares that when any action shall be prosecuted in any court of law, upon any bond for the breach of any condition, other than the payment of money, or shall be prosecuted for any penal sum for the non-performance of any covenant or written agreement, the plaintiff in his declaration shall assign the specific breache’s for which the action is brought. Section 5. The sixth section of said act prescribes, that upon the trial of such actions, if the jury find that any assignmen^of such breach is true, they shall assess the damages occasioned by the breach, in addition to their finding, or any other question of fact submitted to them. It must be admitted, that in all actions of covenant, some breach of covenant must be assigned, otherwise the decl iration is bad. In a bond for the payment of $5,000.00, conditioned to be void upon the faithful discharge of the duties of an office, wherein consists the covenant? Is the condition a cov-anent? It cannot, with any propriety of language be so called. It is a collateral thing, which the obligor has not covenanted to do, and which he may do or not without violating any covenant, if he is willing to pay the penalty. A. binds himself to pay B. $1,000.00, to be void on condition that A. performs a journey to Rome. Does A. thereby promise to go to Rome? By no means. He covenants to pay money, and the journey to Rome is only an act by which he may relieve himself from his obligation to do so, and which he may do or not without violating any covenant. United States v. Brown, Paine C. C. 442; Gentry v. Murphy, 1 Mo. 114. If a breach must be assigned in an action of covenant, and there be no breach of covenant assigned in a declaration on a bond for the payment of money, to be void upon the performance of collateral acts, but the non-payment of the penalty, damages must then be assessed for that — 493 — breach, otherwise there would be no authority in the record to enter a judgment for the amountof the penalty. An action of covenant is brought for the non-payment of the penalty of a bond, where would be the warrant in the record to enter judgment for the amqunt of the penalty, unless damages were assessed on the breach assigned for the non-payment of it, and judgment would be rendered for the damages. The seventeenth section of chapter one hundred and thirty one of the West Virginia Code is as follows: “In an action on an annuity bond, or a bond for money payable by instalments, where there are further payments of the annuity, or further instalments to become due after the commencement of the action, or in any other action for a penalty for the non-performance of a condition, covenant, or agreement, the plaintiff may assign as many breaches as he thinks fit. If there be judgment for the plaintiff on a demurrer, or by confession, or by default or nil dieit, he may so assign after such judgment. The jury impanelled in any such action shall ascertain the damages sustained, or the sum due by reason of the breaches assigned, including interest thereon to the date of the verdict; and judgment shall be entered for what is so ascertained, provided, that if the action be on such annuity bond, or a bond for money, payable by instal-ments, such judgment shall also be for such further sums as may be afterwards assessed, or be found due upon a scire facÁas, assigning a further breach. Such scire facias may be sued out from time to time, by any person injured, against the defendant, or his personal representative, and for what may be assessed or found due upon the new breach or breaches assigned, execution may be awarded.” Our statute was intended to follow eight and nine, William III., and to have the same effect. And being similar in its chief features to the Missouri statute I think the remarks of Judge Scott are pertinent to the case before us, and that the action in this case should have been — 494 — upon the bond under the seventeenth section of chapter one hundred and thirty one of the Code. It is plain that the building ot the bridge, mentioned in the condition of the writing obligatory, is a collateral thing, which the obligors, in the writing obligatory, have not by that writing covenanted to build, and which they may do or not, without violating any covenant, if they are willing to pay the penalty, as provided for by said seventeenth section. Leonard may have been bound by the agreement to build the bridge as agreed, hut that agreement was not the deed of the other defendants, and being strangers to that agreement, they could not have been held to have been bound by any covenant therein to build the bridge, however much it may have been the covenant of George K. Leonard. It may be true, as argued, that the making of the contract between George K. Leonard and Brown, Harpold, Rawlins, Wardnerand Morgan, commissioners acting on béhalf of the board of supervisors, to build the bridge, was contemporaneous with the making of the writing obligatory by George K. Leonard, A. G. Leonard, Alfred Foster, Thompson Leach and William B. Caswell, to the obligee, the board of supervisors of Jackson county, but that did not make A. G. Leonard and the others .co-covenantors with George K. Leonard in that contract, to build the bridge, because they are nowhere mentioned in it in any manner whatever. And although the condition of the obligation says that “ the said Leonard agreed to build, erect and complete a good and substantial bridge,” &c., “to be in all respects erected, built and completed according to the said contract in writing to be attached to these presents, and reference is here given thereto for more full particulars of the way and manner said bridge is to be completed;” yet the contract, even if it had been attached to the writing obligatory, did not thereby become a part of the writing obligatory, nor did the other obligors become parties to the contract by its being attached (if it ever was so attached) to the bond. — 495 — Syllabl1 1 The bond itself explains the purpose intended by attaching the contract to the bond, viz: merely for reference thereto, “for more full particulars of the way and manner said bridge is to be completed.” But who is to build and complete the bridge ? The condition of the bond says, George K. Leonard. There is no agreement in the condition that the sureties, the co-obligors of Leonard in the bond should, or would build and complete the bridge; in fact their names are not mentioned in the condition. All that the bond shows is, that if George K. Leonard complied with the contract he had entered into to build the bridge, then the obligation on the part of the obligors in the bond to pay the $10.000.00 would be void; but if George K. Leonard did not comply with his contract to build the bridge, then the obligation to pay the $10.000.00 would remain in full force and virtue. Their agreement in the bond, was therefore to pay money upon the non-performance by George K. Leonard of his contract to build the bridge, and not an agreement on their part to build the bridge. Therefore, having bound themselves to pay $10,000.00 upon condition that George K. Leonard did not comply with his contract, and if it be true, that said Leonard did not comply with his contract, then the penalty of the bond became forfeited, and the plaintiff had a right to sue upon the bond for the penalty, in the way prescribed by the Code, and should have recovered such damages as had been sustained, not exceeding the penalty of the bond; because if the defendants are guilty of a breach of contract at all, it is that of not paying the penalty of the bond, after Leonard’s non-performance, and that should have been the breach alleged in the declaration. The only breach alleged in this declaration is, that Leonard did not perform his part of his contract to build the bridge, and does not set out any breach of the writing obligatory. The declaration is not sufficient either in covenant or debt. Therefore, I am of opinion, that the demurrer to the declaration should have been sustained ; and that the cir — 496 — cuit court erred in overruling the demurrer to the declaration. This would, perhaps, have been different, had the real and substantial contract between the plaintiff and the defendants been to have built the bridge as contracted by George K. Leonard, for then the principles as laid down in Kennedy v. Kennedy, 2 Bibb 465, and Beasley v. Gillespie, 4 Bibb 314, cited by appellees, would have been applicable, because it would have been sufficient to have declared upon the instruments according to their legal and true import, with such averments only as show the breaches of their real and substantial contract, as in its real meaning was understood by the parties. And the same principle is laid down in Davis v. Noaks, 3 J. J. Marsh. 495, where it is held, that it .is sufficient to assign breach in the non-performance of the act stipulated to be done in the condition, without noticing the penalty. But in this case the condition shows no such l’eal and substantial contract as to George K. Leonard’s co-obligors, therefore the Kentucky cases are not applicable. The judgment of the circuit court must be reversed, with costs; the demurrer should be sustained, with leave to the plaintiff to amend, and the ease remanded to the circuit court of Mason county, to be jrroceeded in according to the principles laid down in this opinion, and further according to the law governing in such cases. Tee Other Judges Concurred. Judgment .Reversed. Case Remanded.