This was an action of debt by Johnson against Hawkins, Smith, and Davis. The declaration states that an execution in favour of Johnson against Hawkins, was levied by Love, the sheriff, upon a horse, saddle, and bridle, the property of Hawkins; that Hawkins, Smith, and Davis, executed a bond payable to Love, sheriff, in the penalty of 400 dollars, conditioned that Hawkins should deliver the property to Love, sheriff, to be sold by him at the house of JohnP. Davis, on the 20th of May then next following, by the hour of 11 o’clock; and that the bond is defective, in being made payable to the sheriff instead of to the execution-plaintiff, the latter being the party interested. The breach assigned is — that Hawkins did not, on the said 20th of May, at 11 o’clock, nor at any other time since the making of the said writing obligatory, deliver the horse, saddle, and bridle, nor either of them, to Love, sheriff, &c. The defendants demurred generally to the declaration, and the Court gave judgment for. the plaintiff
The appellants, defendants below, rely for a reversal of the judgment on the following grounds:—
First, that the bond is payable to the sheriff, and the suit is in the name of the execution-plaintiff. This objection is answered by the 25th sec. of the practice act, R. C. 1824, p. 294, which was in force when the bond, in the present case, was executed. That section authorises a suit to be brought by the party interested, on a bond like the one before us, though it have not the substantial matter required by law — the party suggesting, as in this case, that the bond is defective.
S. Judah, for the appellants. A. Kinney, for the appellee.The second objection is, that the assignment of the breach is insufficient. The general rule is, to assign the breach in the words of the contract, or in words co-extensive with the import and effect of the contract. 1 Chitt. Pl. 326. That rule is complied with in this case. The averment is, that the property was not delivered at the time and place fixed by the bond. This is sufficient. There is a case, where the promise was to deliver goods on or before the 19th of January, and the breach was, that they were not delivered on the 19th of January. Even that breach was held good. The objection, to be sure, was not made till after verdict; but Holt, C. J. said, that the breach would have been good without a verdict. Harman v. Owden, 1 Lord Raym. 620. Had the promise in that case been, as in the present one, merely to deliver on a specified day, the decision shows that no one would have doubted the goodness of the breach on demurrer. The defendant here says, the property may have been delivered before the day. The answer is, the sheriff was not bound to receive it until the day, and it is not to be presumed that he did so. If he did, it was for the defendant to show that fact by plea. The declaration, besides saying there was no delivery on the specified day, says “ nor at any time since the making of the bond,” &c. These latter words are mere surplusage, and cannot be reached by the demurrer.
The last objection is, that there is no averment of the value of the properly agreed to be delivered. This omission, in an action like the present, is no objection on general demurrer. It might be a substantial defect in detinue, where the action is for the goods themselves or their value. But in trespass, or trover, or in suits on contracts for the delivery of property, the averment of the value is only matter of form. The Mayor, &c. of Reading v. Clarke, 4 Barn. & Ald. 268.
Per Curiam.The judgment is affirmed, with 5 per cent. damages and costs.