This is an action of debt, founded on a bond executed by Garnett, in the penalty of two thousand dollars, to Yoe; bearing date, according to the declaration, the 9th day of August 1843, conditioned to be void if Garnett should convey to Yoe a tract of land described, lying in Kemper county in the State of Mississippi, so soon as Garnett could ob*77•tain title to the same. Six breaches are assigned in the declaration, and the defendant below demurred to each of them. His counsel here contends, as to the two first, that each one contains several averments, and that they do not conform to the condition of the bond. But the several facts in each terminate in one point, in showing a specific breach. If more is alleged than was necessary for this purpose, it is but surplus-age. They do not substantially vary from the condition of the bond, and are not, therefore, subject to a general demurrer. It is contended that the third assignment is irregular and argumentative, and that the fourth, fifth and sixth are double. If all this were admitted, they would not be bad on general demurrer. We admit they must show that the contract was broken, but we think them sufficient for that purpose. The third assignment is that Garnett had made no effort to obtain the title up to the time of the suit, and was consequently unable to make title to Yoe, and this by liis own neglect. This was a violation of the bond. The fourth assignment is that Yoe, on the 27th day of September 1S45, more than two years after the execution of the bond, demanded of Garnett a conveyance, tendering a deed in the usual form, to be executed, which was refused. What is reasonable time, is a question of law, when the facts are not disputed. Prima facie, Garnett, at the time of his refusal, had been allowed a reasonable time to procure the title. The fifth assignment is that Garnett had obtained the title; that Yoe had demanded a conveyance, and that Garnett refused to make it. The demurrers admitted the facts. The refusal was a breach of the contract. Any objections that can be taken to the sixth assignment, must fail, under some of the views already taken. In Wade v. Kellough et al., 5 Stewart & Porter, 450, it was held that the yendee was bound to tender the conveyance to be executed by the vendor, when the vendor had given him his bond to convey land on or before a particular time. If that were an open question, it might be considered doubtful at least, but it does not settle the present question; for here a refusal to convey is alleged. After a refusal to convey, it is very unnecessary for the purchaser to be at the expense of preparing a deed. If he refused for a good reason, he is bound to show it, but he cannot show it by demurring, as that admits his refusal. We think there was no error in overruling the demurrers.
*78It appears by the bill of exceptions that Garnett had taken a deposition, but did not offer it as evidence on the trial. The deposition was offered in evidence by Yoe and admitted by the court, to which Garnett excepted. It does not appear that it was taken on notice to Yoe, or that he attended or cross-examined. It could not, therefore, have been read against him, and we think it should not have been admitted against Garnett. We are satisfied, however, with the opinion in Stewart et al. v. Hood, 10 Ala. R. 600. The deposition was admitted as evidence in that case, at the instance of the party against whom it was taken, because he had cross-examined the witness.
The deposition of Reuben H. Grant, which is mentioned in the bill of exceptions, does not appear in the transcript, and consequently we cannot decide whether the opinions of the Circuit Court in regard to it were erroneous or not.
We cannot say that there was error in excluding the evidence of the witness, Jonathan Bliss; because it does not appear, even if his evidence were otherwise admissible, that it had any relation to this tract of land. And for the same reason we cannot say there was error in excluding the testimony of the next witness referred to in the bill of exceptions, but whose name is not stated.
The second charge of the court to the jury was this: that if they believed the land in question was vacant land, it was in the power of Garnett to enter it, and not doing so, he was liable on his bond. In this we think there was error. It is a mistake to suppose that all the vacant public land, without regard to time, place or other circumstances, can be entered in the land offices, by any one disposed to do so: Nor can the court judicially know when a particular tract of land in another state maybe entered. This is a fact to be established by evidence. It appears that there was no evidence of it on the trial.
Garnett requested the court to charge the jury, that to authorise a recovery it was essential for the plaintiff to prove that he, Garnett, had obtained a title to the lan<|, or could have done so by reasonable diligence, which the court refused to charge, but charged that it was for Garnett to show that he could not, with reasonable diligence, have obtained the title, so as to make it to the plaintiff. It is very generally true that the plaintiff is required to prove his assignment of breaches, but there *79are exceptions to this rule, as if the breach assigned is the nonpayment of rent. He is not required to prove such a negative as that; and the exception is still wider, and includes those cases in which the facts lie peculiarly within the defendant’s knowledge and are not easy of proof by the plaintiff. Hence, we can see no error in the charge on that poiht.
The judgment is erroneous- It should have been for the amount of the penalty, with nominal damages and the costs. Costs are allowed by our statutes. By the common law, in such actions, the plaintiff recovered the penalty and nominal damages, and this was not altered by the English statute.— Gainsford v. Griffith, 1 Saunders’ R. 58, note 1: Neither is it altered by our act of 1824. — Clay’s Dig. 830, § 96, &c. It was intended by the English statute as well as ours, that the judgment should stand as further security for future breaches, upon which the sci. fa. is given. Hence the propriety in all and the necessity in many cases of rendering judgment for the entire penalty. In the case before us, the judgment was rendered for the amount of the verdict, instead of the penalty. In the present case, it is true, there could be no further breaches, and we are not sure that we would reverse or remand for this, more especially at the instance of the defendant below, who could not be injured by it. But at the same time it is safest and best to adhere to the established modes of proceeding, and departures from them are not to be éncouraged. There is no injustice in giving judgment for the penalty, as the statute secures the defendant against the payment of any thing more than the amount of the verdict and costs. We can discover no other errors in the judgment or proceedings.. Let the judgment be reversed and the cause remanded.