Tait v. Parkman , 15 Ala. 253 ( 1849 )

DARGAN, J.

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 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 containing general affirmative covenants, the defendant may plead performance generally, but if there is a specific breach alledged,the defendant must respond specially to it, and cannot plead performance generally, and thereby throw on the plaintiff the burthen of repeating the same facts in his replication, stated in the particular breach assigned in the declaration.

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 he was discharged by due course of law from the arrest, and did not commit any escape in the mean time. If we were to consider it a plea of discharge, it is evidently defective, because such a plea must aver every fact' that will show the legality of the discharge. See 8 Ala. Rep. 288. Whether then we regard this plea as a plea of performance generally, or as a plea of discharge by due course of law, it is defective, and the court erred in overruling the demurrer to it. But the fourth plea is clearly good. A principal may surrender himself, in discharge of his bail, and if the surrender is in fact made, and the prisoner in actual custody, the intent, or the quo animo, with which the act was done, cannot alter its legal effect. The language of the court, in the case of Morrow & Nelson v. Weaver et al. 8 Ala. Rep. 288, “ that if the surrender was colorable merely, it could not discharge the sureties to the bond, must be understood to mean, if the surrender was pretended merely, but not in truth made, the sureties would not be discharged. But if it was intended, by that decision, to hold, that notwithstanding the surrender was complete, and the principal in actual custody, yet the intent, or motive that induced the plaintiff to surrender himself to close custody, could influence the legal effect of the act, we should be compelled to this extent to overrule that decision; for we could not inquire what motive or intention influenced the act; nor could the effect of the surrender be influenced by the intent that induced it. The seventh plea being in substance the same as the fourth, the court properly overruled the demurrer to it.

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.

But to enable an executor to sue, who represents, and in in law is possessed of the rights of the testator, he must show a title in his testator, at the time of his death, and his letters testamentary will then show, that this title vested in him, and relates back to the moment that the testator died. If he fails to show that his testator had any title to the chattel, in reference to which suit is brought, he must fail in the suit. If this view be correct, it is evident that the plaintiffs cannot maintain the action, for although the legal title to the judgment, out of which the bond grew was vested in the testator, yet the bond (if not a nullity) gives a new right entirely distinct from the judgment, although the judgment was •the source from which it sprung. It is however suggested, that although no legal title to the bond ever vested in Tate, because he was dead at the time it was executed, yet it must be considered as a contract entered into with the plaintiffs, in their character as executors, and therefore they may sue for a breach of it. To this it may be answered, that they have not so declared; but even if they had, they are not the obligees of the bond. No covenant is entered into with them —neither in their own right, nor in their character as executors ; they therefore can take no interest in, or title to it, and cannot maintain a suit upon it.

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.