Kessinger v. Mumford ( 1818 )

Judge Owsley

delivered the opinion of the court.

The judgment of the court below sustaining the demurrer of Mumford to the declaration of Kessinger, is, we hmm no doubt, correct.

Mumford having, as is charged in the declaration, covenanted to pay the obligee twenty-four dollars for every thir-s s'ílou'^ serve as a substitute for him under the command of captain Rawlings, of the first regiment detached militia, under the command of lieut. col. Samuel Caldwell, it is clearly necessary in an action for the pay, ⅛2' Kess>nSer should alledge in his declaration, either a performance on bis part, or an excuse for the failure to perform; and in alledging a performance, it no doubt should c|one, either in the words of covenant, or in words coextensive with its legal import.

Kut, as 'n Present case’ Kessinger by barely alledg-‘nSi that “the obligee performed a six month’s tour of duty for Mumford,” has neither charged a performance in the ’vorc^s lbe covenant, nor used words calculated, by shew-⅛ 'be service to have been performed under the command capt. Rawlings, &c. a performance according to the effeCt of the covenant, lie most dearly has altogether failed 'a ®bew any legitimate cause of action against Mumford.

The judgment of the court below, therefore, in sustaining Mumford’s demurrer, is correct, and roust be affirmed with cost.