delivered the opinion of ¿he, court. The suggestion by the counsel for the defendant below, that the plea in this case is to one only of the counts in the declaration, and that the whole action is discontinued by reason, of the plaintiff’s not having taken his judgment by nil dicit on the other count, is not sustained.
The plea does not profess to be an answer exclusively to. either count, and as it is not an easy matter, if at all practicable, to, determine to which it most strongly applies, it would have, been exceedingly difficult for the plaintiff to, ascertain on which count to have taken his. judgment. Tt must therefore, be. construed most strongly agajnst the defendant; and. as. a plea to the whole, declaration, and so understood, the demurr.er did not work a discontinuance. The condition of, the bond,on which the suit was instituted, refers generally to a bond of conveyance to the defendant, which belongs to him,., and fpr any thing appearing, is in. his possession, and on which he relies as containing a con-; dition precedent to the payment of the money.
It was incumbent therefore.on him to have made profert g£ that bond, and to, ha.ve, set out the.contents, in order, that the plaintiff might have craved oyer - and demurred, or replied to the plea, according to, circumstances, and also; to have enabled the court to decide* whethei; the conveyance of the land was. a condition precedent, and what .as-, surance was required by that instrument to be made.
But instead of doing this, after oyer of the bond. on. which this suit was brought, and.of, condition, the plea, in substance only alleges, generally, that a conveyance of two hundred acres of land by, George Rea, the obligee, in. his life-time, tó the defendant, was a condition precedent to the payment of the money; that he did not- make the conveyance, and therefore that the defendant ivas not-bound to pay, &c. without making profert of- the bond of conveyance, or attempting to set out any part of it, which is clearly a bad plea, and the court below did right in sustaining the demurrer.
JUDGMENT AFFIRMED.