Citation Numbers: 58 Me. 123
Judges: Appleton, Barrows, Danforth, Kent, Walton
Filed Date: 7/1/1870
Status: Precedential
Modified Date: 9/24/2021
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
The defendants demur to the replication, assigning for cause of
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
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
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.
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.