Mooney v. Demerrit

Richardson, C. J., delivered the opinion of the court. At common law, when the defendant pleaded a general performance to debt upon a bond with condition, the plaintiff [188] C0llld assign in his replication only one breach; and if he assigned more, his replication was bad for duplicity. Gilbert’s cases 238, African Com. vs. Mason. — 2 Burrows 772, Cornwallis vs. Savery. The reason of this was, because if the plaintiff shewed any single breach of the condition, he was entitled to the whole penalty. It was therefore wholly unnecessary to shew more than one breach. But now, by the statute of S and 9 W. 3, cap. 11, <§> 8, the law is altered in England, and the plaintiff may assign in his replication as many breaches as he pleases. 1 Saunders 58, note 1. — 3 Saunders 187, note 2. And if that statute has been adopted in this state, the replication in the case before us is unquestionably good. But the statute of 8 and 9 W. 3 was never adopted in this state. The provisions of our provincial act of 11 W. 3, cap. 4, 8,(1) which were revised and re-enacted in our statute of February 9, 1791,(2) renc|ere(j tqe a(j0ption of it wholly unnecessary, because they furnished an adequate remedy for the very evils which the English statutes were intended to remedy. Our statutes, however, did not alter the mode of pleading in actions of debt upon bonds with condition, but left the proceedings as at common law, until the penalty was found to be perfected, when the equity power of the court commenced, so that a replication assigning more than one breach is in this state still bad for duplicity. The English statute of 8 & 9, W. 3, was never adopted in Massachusetts, as was expressly decided in the case of Sevey vs. Blacklin et al., 2 Mass. R. 541, and probably for the same reason. As the provisions of their statutes on this subject are nearly the same as ours, we consider this as direct authority, and are of opinion that the replication in this case is bad. Footnotes [(1)] xJawsT' [(2)] S)i Laws 63.