King v. King ( 1788 )

And,

By the Court:

We are all of opinion that the plaintiff’s replication is inefficient.

1. Because the declaration is so.—From the condition of the bond therein set forth, it appears that there was a condition precedent to be performed by the plaintiff before any duty attached on the defendant (viz) : a demand and specification of articles to be delivered; which not appearing to have been made, the plaintiff has not shewn a right. If, as he might have done, he had declared only on the penal part of the bond, there would have appeared cause of action; but it is otherwise since he hath undertaken to set forth the condition, and has not averred facts necessary to shew a breach of it.—This defect was incurable otherwise than by concessions of the defendant in pleading, and he has made none except that he executed the bond, etc.

2. If the plaintiff might have supplied this defect by inserting in his reply what was wanting in his declaration, he has not done it.— The replication is only that the 8 l.—was demanded “in Wheat, Rye, Indian Corn, and other necessaries of life”, without stating what the other articles demanded were, that it might appear to the Court that they come within the description of necessaries of life, or how much was demanded of any particular article, so that if the defendant has delivered a given quantity of either, or each of them, he might plead it as a compliance with the demand that had been made.