State v. Peck , 58 Me. 123 ( 1870 )

Barrows, J.

The defendants craved and had oyer of the bond declared on, and of the condition thereof which recites the election of Peck as treasurer of State, and provides in substance that if he shall duly and faithfully discharge the duty of this trust according to law, and render an account, when required by the legislature, of such sums of money as he shall receive, and shall well and truly pay to his successor in office, or to any other person that may be appointed by the legislature to receive the same, “ all such sums of money, books, property, and appurtenances, as upon such settlement of his accounts, or otherwise, shall be found due and payable from him, or his agents or servants, to this State as treasurer; ” “ and that during his continuance in office, he will not engage in any business of trade or commerce, or as a broker, nor as agent or factor for any merchant or trader,” “ and that he will render a true and just account... to the legislature ... on the first Wednesday, of January, 1859, . . . and faithfully and without delay deliver over to the treasurer, then to be chosen, . . . the moneys, books, property, and appurtenances of said office, . . . and truly and without delay pay over all such balances that shall appear to bo due upon the adjustment of the accounts of said office, then the foregoing obligation to be void and of no effect, but in default thereof to remain in full force and effect.” Hereupon the defendants plead a general performance by Peck of “ all the covenants and conditions therein on his part to be kept and performed.” To this the plaintiffs reply, alleging that Peck “ continued to hold and exercise the said office of treasurer of State to which he was chosen, as in said condition of said writing obligatory mentioned for a long space of time, to wit, from, etc., to, etc.,” “ and that during the said time, ... to wit, on, etc., at, etc., he, the said Benjamin D. Peck, as such treasurer of State, as aforesaid, had and received divers sums of money, amounting in the whole to a large sum of money, to wit, the sum of thirty-nine thousand two hundred and thirty-one dollars and nineteen cents, belonging to the said State of Maine, and hath not accounted for or p.aid to the plaintiff the same, or any part thereof, although often requested so to do, but hath therein wholly failed and made default,” “ and the same is still wholly unpaid and unsatisfied contrary to the form and effect of the said condition of the said writing obligatory, and this, etc.,” “ wherefore said State prays judgment and its debt aforesaid, together with damages by it sustained on occasion of the detention thereof to be adjudged to it and costs.”

The defendants demur to the replication, assigning for cause of demurrer that the pleader “ does not in and by the replication set forth and state with particularity and precision the breach of condition, . . . and the particular items thereof, and that the replication is in other respects uncertain, informal, and insufficient.” The language of the bond as rehearsed in the plea is not remarkable for grammatical precision; but we think the instrument is to be deemed and treated as a “ contract in a penal sum for performance of covenants and agreements,” and therefore subject, so far as the pleadings are concerned, to the rules prescribed in R. S., c. 82, § 17.

The counsel for defendants reiterate in their argument what they had stated as the cause of demurrer, that the replication is wanting in particularity and precision, and that it does not set forth the breach of condition with sufficient detail and specification of items. They do not suggest what further in the way of detail is required, or what allegation is omitted, which is necessary to constitute a good assignment of a breach. It will be seen that the replication sets forth the reception by Peck during his official term, in his official capacity, of “ divers sums of money amounting to ” a certain sum specified to a cent, which he has not accounted for or paid over, but hath therein wholly failed and made default, and the same still remains wholly unpaid and unsatisfied, contrary to the form and effect of the condition of the bond, with a verification, wherefore plaintiff prays judgment for this particular sum, and damages for its detention, and costs.

The defendants cite from Chit. PI. the familiar general rule that where there is a plea of general performance of the condition, the replication must state the breach with particularity, and should conclude with a verification, etc.

But it is equally true that useless prolixity in pleading is to be avoided, and where the subject comprehends multiplicity of matter, general pleading is allowed, and the breach is well assigned if the sum and description of the items are given, and enough stated to show all the acts and defaults necessary to constitute a breach. 2 Wms. Saund. 410, note 4, and the cases there cited.

One of these, Shum v. Farrington, 1 B. & P. 640, was debt on a bond conditioned for tlie good behavior of one R. S., jr., and for his duly rendering and paying to the plaintiff a true, just, and fair account of all moneys, bills, etc., received by him as their agent and factor. The plea was, as here, general performance, to wdiich there was a replication substantially identical, mutatis mutandis., with the one now under consideration. A special demurrer was filed, “ for that it does not appear in and by the said replication of the plaintiffs, from whom, or in what manner, or in what proportions, the said sums of money in the said replication mentioned were received by the said R. S., jr.” The demurrer was joined, and Jones v. Williams, Doug. 215, cited in support of it. That case and the demurrer presented were overruled upon full argument and consideration, Eyre, C. «L, remarking that “ any departure from the general way of stating the breach used in this replication, would lead to an inconvenient length of pleading, which the court will not determine to be necessary, unless compelled by a series of authorities.” After remarking upon the solitary case cited in support of the demurrer, he proceeds to say that “ whether a breach be sufficiently assigned or not, is to be decided by the rules of law and the forms of pleading. By the former, the party must show some fact which is a breach in the words of the condition. Where many sums have been received, it is not each sum, but all taken together, that constitute tlie breach, which must therefore be so stated.”

Instead of being compelled by a series of decisions to sustain the demurrer, it appears that even then the weight of authority was the other way, and that when matter tends to great prolixity, conciseness in pleading is allowed and approved. Mints v. Bethel, Cro. Eliz. 749; Braham v. Bacon, idem, 916 ; J’Ansen v. Stewart, 1 Term Rep. 753; Cornwallis v. Savory, 2 Burr. 772. See also, Calvert v. Gordon, 7 Barn. & Cres. 809; E. C. L. R., vol. 14, p. 135; Barton v. Webb, 8 Term Rep. 459. Defendants’ counsel objects that the English decisions were under the statute 8 and 9 Wm. 3, c. 11, which never became part of the common law in New England, as was held in Bailey v. Rogers, 1 Maine, 186. A part of these English decisions were certainly prior to the statute referred to, as was also the case of Arlington v. Merricke, reported by Saunders from the Hilary Term, 23 and 24, Car. 2 (2 Wms. Saund. 403). The breach was there similarly assigned (i. e. generally), and Sir Edward Saunders, whose skill and- accuracy as a pleader grows more and more wonderful in these degenerate days, though as counsel for defendants he demurred for other causes, made no such point.

We fail to perceive how the statute referred to has any bearing upon the point here raised. If it does, it need only be observed that since the decision in Bailey v. Rogers, ubi supra, similar provisions have been incorporated into our own statutes. Laws of 1830, c. 463; R. S. of 1841, c. 115, § 15; R. S. of 1857, c. 82, § 17.

It should be noticed, also, that in Bailey v. Rogers, the replication was adjudged bad, because by the terms of-the guardian’s bond there in suit, he was not bound to render an account “ until he shall be thereunto required,” and thereupon the court held that a citation from the judge of probate, requiring him to render an account, was a necessary preliminary, in order to charge the guardian on his bond for refusing to account, and no special request to account or citation to the guardian was alleged.

If such had been the only condition here, the general allegation of “ though often requested ” would be plainly insufficient, but these pleadings show a day fixed when Peck’s accounts should have been rendered, and that that day was long past when the suit was commenced.

We do not see how the claims of the State could well have been made more definite, specific, and certain, by the pleadings. What the precise sums were which Peck received as treasurer, and appropriated to his own use, and from whom he received them, he may know, but it would be certainly difficult, if not impossible, for the plaintiff to ascertain; and this brings the case within the rule that general pleading is allowable also where the facts lie more in the knowledge of the opposite party than of the party pleading. Gale v. Reed, 8 East, 80.

Lord Ellenborougb said, in the case just cited, that it was a sufficient answer in point of law (to a similar objection urged in that case on demurrer), that “ as the facts alleged in these breaches lie more properly in the knowledge of the defendant, who must be presumed conusant of his own dealings, than of the plaintiffs, there was no occasion to state them with more particularity.”

The replication sufficiently assigns a breach of the bond, and specifies minutely the amount of the damages which have accrued, by reason of it. The demurrer admits all that is well pleaded in the replication.

As a consequence, judgment must eventually be rendered for the plaintiff for the sum thus claimed, unless the plaintiff consents to a withdrawal of the demurrer, and the court thereupon order it under R. S., c. 82, § 19. At present the entry must be

Exceptions sustained,

Replication adjudged good.

Appleton, C. J.; Kent, Walton, and Danforth, JJ., concurred.