1845. WILLIAMSON v. PAGE. object being to enable the commissioners by putting such additional questions, to elucidate the difficulties which might arise pro re natâ. It is clear, therefore, that the commissioners had a discretion, and the question is, whether they exercised it? It appears to me that they have not come to any judgment or decision upon the subject, but have left it to the Court to say, whether the questions ought to have been put or not. It is the parties' own act that these commissioners were appointed. It was not necessary that, in point of form, the questions should have been put by the commissioners themselves; if they had adopted them, when suggested by the agents for the parties on either side, that would have been a virtual compliance with the power given by the commission. The commissioners, however, do not say that the questions shall be put, or that they shall not be put, but that, subject to the objections made, the examination shall be proceeded with. They had no right to reserve for our consideration the propriety of putting these questions, and, therefore, the answers could not be given in evidence, and the verdict ought to stand. COLTMAN, J.-Whether the questions were fit to be put or not, is not a matter for our decision, but whether the commissioners have exercised the jurisdiction which they undoubtedly possessed, in putting such additional questions as appeared to them necessary and proper. It seems to me, that they have not exercised any discretion on the subject. ERLE, J.-I also am of opinion that the evidence was properly rejected, and that the verdict ought to stand. At the time of the examination, the defendant claimed a right to put additional cross-interrogatories. Now, the commissioners had no power to put them as the cross-interrogatories of the defendant, but they had a power to put them as questions of their own, and if they had so resolved, and had so put them, the answers would have been admissible in evidence. I quite agree that the questions were extremely reasonable to be put, if the commissioners had put them as their own; but as they did not think it necessary or proper so to do, the learned Judge was quite right in refusing to receive the answers as evidence. Rule discharged. 1845. WILLIAMSON v. PAGE. ROAKES V. MANSER and Others. DEBT. The plaintiff declared against the defendants, Plaintiff de clared in debt on a bond, conditioned for the payment a day certain, in pursuance of the terms of an indenture and for the performance of the covenants contained in that indenture. The defendants pleaded generally performance as executors of William Manser, upon a bond for 10007. given by their testator to the plaintiff. The defendants craved oyer of the bond, which was the joint and several of 10007. on bond of Frederick Barry, James Barry, and William Manser, and set out the condition thereof, providing that the bond should be void, "if the above-bounden Frederick Barry, therewith; James Barry, and William Manser, their heirs, executors, administrators, or assigns, do and shall well and truly pay or cause to be paid unto the above-named Edward Roakes (the plaintiff) his executors, administrators, or assigns, the sum of 10002., on or before the 30th day of September now next ensuing, together with interest for the same, after the rate of 41. 10s. per cent. per annum, without any deduction, defalcation, or abatement whatsoever, according to, and in full performance and discharge of the proviso or condition mentioned in a certain indenture of assignment, bearing even date with these presents, made or mentioned to be made between the above-bounden Frederick Barry, of the one part, and the said Edward Roakes, of the other part; and do also well and truly observe, perform, fulfil, and keep all and singular the covenants, grants, articles, conditions, of all things mentioned in the condition. The replication denied the payment of the sum of 10001. and concluded to the country: Held, upon special demurrer to the it conclusion was replication, proper; since to make the plea good, it must be taken to allege that the money was paid on the day mentioned in the condition. Semble, that the plea would have been bad on special demurrer, if not on general demurrer. VOL. III. с D. & L. 1845. ROAKES บ. MANSER and agreements whatsoever, which on his and their parts. and behalfs, are or ought to be observed, performed, fulfilled, and kept, comprised and mentioned in the said and Others. recited indenture." The plea then averred that the said Frederick Barry and James Barry, and the said William Manser in his lifetime, and the defendants, as executors as aforesaid, after the death of the said William Manser, did from time to time, and at all times, after the making of the said writing obligatory and the said conditions thereof, well and truly observe, perform, fulfil, and keep all and singular the articles, clauses, conditions, agreements, matters, and things in the said conditions of the said writing obligatory comprised and mentioned, in all things therein contained, on their parts and behalf, and on the part and behalf of each and every of them, to be observed, performed, fulfilled, and kept, according to the tenor and effect, true intent and meaning of the said condition of the said writing obligatory. Replication. That the said Frederick Barry, James Barry, and William Manser, in his lifetime, and the said Frederick Barry, James Barry, and the defendants since the death of the said William Manser, did not pay the said sum of 10007. in the said condition mentioned, in manner and form as in the said plea mentioned. Conclusion to the country. Special demurrer to the replication, assigning, among other causes of demurrer, that the replication ought not to have concluded to the country, but with a verification, inasmuch as it was not a mere traverse of matter alleged, but contained new matter. Byles, Serjt., for the defendants. The replication ought not to have concluded to the country, either at common law, or since the passing of the stat. 8 & 9 Wm. 3, c. 11. The plea is a general plea of performance, and there can be no issue taken on such a plea; Sayre v. Minns (a). (a) Cowp. 575. The plaintiff, therefore, at common law, ought to have assigned a breach of the condition, and to have concluded with a verification. [Cresswell, J.-Have you any precedent where a plea of general performance has been held to be a plea of payment of money on a certain day?] In Com. Dig. tit. "Pleader," (2 V. 13) it is laid down that "in debt upon a bond for performance of covenants, if all the covenants are in the affirmative, the defendant may plead covenants performed generally." It would appear from the case of Hayman v. Gerrard (a), that the plaintiff ought to have assigned a breach. That was an action upon a bond conditioned for rendering an account of the goods of a deceased person, and making an equal dividend and paying it; to which the defendant pleaded that no goods of the deceased came to his hands. The replication was, that a silver bowl came to his hands; and the Court held, upon general demurrer, that the replication was bad, because the plaintiff had not shewn a breach in it. The true distinction between those cases where it is necessary to assign a breach in the replication, and where not, seems to be taken by Holt, C. J., in the case of Meredith v. Alleyn (b): "In all cases (that of a bond to perform an award excepted), if the defendant pleads a special matter, that admits and excuses a non-performance, the plaintiff need only answer and falsify the special matter alleged; for he that excuses a non-performance, supposes it; and the plaintiff need not shew that which the defendant hath supposed and admitted; but if the defendant pleads a performance of the condition, though it be not well pleaded, the plaintiff in his replication must shew a breach; for then he has not a cause of action unless he shew one." In Plomer v. Ross (c), the rule thus laid down by Holt, C. J., was carried still further. That was an action of debt on a bond conditioned for the performance of covenants. The defendant craved oyer of the condition, (a) 1 Saund. 99, a. (b) 1 Salk. 138. (c) 5 Taunt. 386; See S. C. 1 Marsh. 95. 1845. ROAKES v. MANSER and Others. 1845. ROAKES v. MANSER and then pleaded performance of each covenant specially, and also a plea of general performance. The plaintiff merely took issue on the plca of general performance, and and Others. entered a separate assignment of breaches on the record, and in this state the record went down for trial. After verdict for the plaintiff, the Court held that no damages could be assessed on the breaches, and a repleader was awarded. That case is a decisive authority to shew that a replication like the present, is bad both at common law, and since the statute of William the Third. [Cresswell, J., referred to Bush v. Leake (a).] In that case, as well as in Darbishire v. Butler (b), which will probably be referred to on the other side, the plaintiff took issue in the words of the plea, but that has not been done here. [Tindal, C. J.— Is the plea good?] If there be any defect in the plea, it has been cured by the plaintiff's pleading over. Channell, Serjt., (Bramwell, with him) contrà. Either the plea in this case is bad, or the replication is good. It is submitted, in the first place, that the plea must be bad, unless it allege, either expressly or by implication, the payment of this sum of money, according to the terms of the condition. Taking it to contain such an allegation, then the general rule of pleading will apply, that the plaintiff may traverse anything alleged or implied in the plea that is material, and conclude to the country. Sayre v. Minns (c), does not affect the present question. The plea as to the negative covenants in that case was special, that the party had not done the acts which it was covenanted he should not do, following the words of each particular covenant; and as to the affirmative covenants performance was pleaded generally. In replying, therefore, to such a plea, the plaintiff was obliged to introduce new matter, which the defendant had a right to answer. The (a) 3 Doug. 255. (c) Cowp. 575. |