The bond in suit was executed in accordance with the provisions of P. S., c. 113, § 24, and is therefore a statute bond. It was made to these plaiutiffs as obligees in fact, although by other names. This is alleged and proved ; and the law pertaining to that subject was settled between these parties in the case reported in 67 Maine, 25.
The authorities cited under the first two points of the defendants’ brief are not applicable to this case. All authorities concur in holding that, in debt on bond, it is not necessary for the plaintiff, in his declaration, to count upon any other than the penal part of the instrument; leaving the condition to be pleaded by the defendant, if it affords him any defense. Eor the penal part of the instrument alone constitutes, prima facie, a right of action, the breach being the non-payment of the money. Waterman v. *484Dockray, 56 Maine, 52, 56. 1 Chit PI. 368, 430, and notes. Gould Pl. c. 4, § 17, and notes. The defendant, Stanwood, never having even attempted to perform any of the conditions of the bond, had no occasion to pray oyer and plead performance. If he never performed the conditions he could not be benefitted by having them spread upon the record by the plaintiffs.
The defendants complain that Stanwood’s disclosure would be no defense. If that be true, they should not have tendered such a bond. He did not make any disclosure, and whether his disclosure, if made, would constitute a defense we have no occasion to consider.
The venue is properly laid in the declaration.
This being a statute bond, judgment should be entered for the plaintiffs, in accordance with the provisions of P. S., c. 113, § 40.
Judgment for plaintiffs.
Appleton, G. J., Walton, Barrows and Libbey, JJ., con-, cur red.