In this case the plaintiffs brought an action upon the official bond of the defendant, as treasurer of the town of York, and sureties, declaring in their writ only upon the penal part of the bond and alleging a breach by the non-payment thereof. The defendants prayed oyer of the bond and it was produced in court and read. They then filed a special demurrer to the declaration "that the defendants say that the declaration annexed to plaintiffs said writ is insufficient in law in that it is not claimed or declared that there has ever been any breach by any or all of the defendants of the writing obligatory declared upon.” The demurrer was sustained and exceptions taken to the ruling. The exceptions must be sustained. This form of pleading is now too well established to admit of discussion. It follows the directions prescribed in Oliver’s Precedents, Chitty’s Pleading, Stephens on Pleading and Gould’s Pleading. It is also the well established method under our own decisions.
In Waterman v. Dockray, 50 Maine, 52, involving an action upon a probate bond the court say : "The. real controversy seems to be on which party is the duty of setting out the condition? Usually there is no difficulty in such actions on bonds. The plaintiff declares on the penal part of the bond and makes profert of the whole instrument.”
In Colton et als v. Stanwood et als, 68 Maine, 482, the precise question now before us was raised, the defendants contending that the "plaintiffs should allege breaches of the condition of the bond.” With respect to this contention the court say: "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 defence. For 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. Dochray, is approved by citation.
Exceptions sustained. Demurrer overruled.