Taft v. Brewster — 9 Johns. 334

Majority

p. 334

Taft against Brewster and others.

NEW YORK.

Oct. 1812.

Headnote

In an action bon/ against who'were dethe^addition or description of the baptist and wiio exewith their in-an/seaisjTut Stio/'tt was held that this descripMn if fhcSdciendants SSr 'indh'i-‘ dual capacity. declaration on tione/t/pay several sums of money,, at several days, assigned two cto for tiié non-payment of two several sums, it was held bad, on special destiurrer, jftir dup\kity0

THIS was an action brought against the defendant, and Thaddeus Loomis and Joseph Coats, on a bond dated the 16th of Aprils 1810> by which the defendants, “ by the name and description of' ^ac0^ Brewster, Thaddeus Loomis and Joseph Coats, trustees of the Baptist Society of the town of Richfield” acknowledged themselves bound to the plaintiff in the sum of 3,600 dollars, to be paid, conditioned, that if the defendants, as trustees of the Baptist Society of the town of Richfield, their heirs, &c. should pay the plaintiff the sum of 1,800 dollars, with interest, at the several times therein mentioned, &c. The bond was signed “ Jacob Brewster, 'Thaddeus Loomis and Joseph Coats, trustees of the Baptist Sociefy 0f f]ie town of Richfield,” and sealed by them respectively.

The plaintiff assigned two breaches; 1. That after the making the bond, &c. a large sum of money, to wit, 126 dollars, being the interest for one year then elapsed, was then due and owing; and, 2. That another large sum of money, to wit, the sum of 1,100 del lars, became due, and was owing, to the defendants on the 1st of June, 1811,-which, with the 126 dollars, was still in arrear and -i unpaid.

The defendants, after craving oyer of the bond and condition, demurred, and assigned for causes of demurrer ; 1. That the bond was executed by the defendants in a corporate, and not in their {n¿ividual capacity ; 2. That the declaration was double, in a ss igning two distinct breaches of the condition of the bond j and9 ° °

p. 335

3. That in assigning the 'breaches, it is not said « according to the statute,” &c.

The plaintiff joined in demurrer, and the same was submitted to the court without argument.

The bond must be considered as given by the defendants in their individual capacities. It is not the bond of the Baptist church; and if the defendants are not bound, the church certainly is not, for the church has not contracted either in its corporate name, or by its seal. The addition of trustees to the names of the defendants is, in this case, amere descriptio personamm. But there is one special cause of demurrer well taken, and that is, that the declaration is double, in assigning two distinct breaches^/ Several breaches may be assigned, under the statute, oirs. bond for the performance of covenants, or other colMeral matter; but this is not a bond within the act, for it is a bond for the payment of money only. The case is, therefore, to be governed by the common law rules of pleading, which would not permit the assignment of more than one breach, because one • was sufficient to forfeit the bond, and entitle the plaintiff to the pe= malty. If, therefore, a bond was conditioned to pay several sums of money at several days, a non-payment of any sum would forfeit the bond; and the plaintiff was permitted to assign a breach only of one of the payments, as, otherwise, it would be double; and duplicity is still bad on special demurrer. (2 Vent. 198. 1 Roll. Rep. 112. Cro. Car. 176.) Judgment must, therefore, be given for the defendants, with leave, nevertheless, to the plaintiff to mend on the usual terms.^[1]

(a) (a) a) See Jackson v. Walsh, ( 3 Johns. Rep. 226 .)