Mooney v. Demerrit
Superior Court of New Hampshire
DEBT upon a probate bond. The defendant craved oyer of the bond and of the condition, and then pleaded “ omnia performavit.” The plaintiff in his replication assigned four distinct breaches of the condition. Upon which the defendant demurred specially, and assigned duplicity as a cause of demurrer. The cause was argued by J. Mason, on the part of the defendant, and by J. Smith, for the plaintiff.
1Opinion of the CourtRichardson, C. J.
At common law, when the defendant pleaded a general performance to debt upon a bond with condition, the plaintiff *188C0llld assign in his replication only one breach; and if he assigned more, his replication was bad for duplicity. Gilbert’s cases 238, African Com. vs. Mason. — 2 Burrows 772, Cornwallis vs. Savery.
The reason of this was, because if the plaintiff shewed any single breach of the condition, he was entitled to the whole penalty. It was therefore wholly unnecessary to shew more than one breach.
But now, by the statute of S and 9 W. 3, cap. 11, <§> 8, the law is altered in England, and…
2Cases cited1 opinion
- Sevey v. BlacklinMassachusetts Supreme Judicial Court · 1807
3Cited by1 opinion
- Parker v. ColcordSuperior Court of New Hampshire · 1819