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money to remove it. But if it is to perform some specific thing, or save the covenantee from a charge or liability, the right of action is complete upon a failure to do the act, or when such charge or liability is incurred.

CHAPTER IX.

ON UNDERTAKINGS, BONDS, ETC.

§ 3589. Failure of consideration.

[TITLE.]

Form No. 845.

The defendant answers to the complaint:

I. That he gave said undertaking to said A. B. solely in consideration of the performance by said A. B. of the covenants and conditions, upon his part, in an agreement then made between them, of which agreement a copy is annexed as a part of this answer.

II. That this defendant duly performed all the conditions thereof on his part.

III. That the said plaintiff [allege breach as in an action upon the contract].

§ 3590. Assignment. Where a clerk of a court was sued upon his official bond, and the breach alleged was that he had surrendered certain goods without taking a bond with good and sufficient securities, and the plea was that the bond which had been taken was assigned to the plaintiffs, who had brought suit, and received large sums of money in discharge of the bond, this plea was sufficient, and a demurrer to it was properly overruled.1

§ 3591. Avoidance. Matters in avoidance of a sealed instrument must be pleaded specially.2 A plea which alleges that

7 Churchill v. Hunt, 3 Den. 321, 326; Richard v. Bent, 5 Ill. 38; 14 Am. Rep. 1; Ardesco Oil Co. v. N. A. Mining & Oil Co., 66 Penn. St. 375, 381. See, as to damages recoverable, Beecher v. Baldwin, 55 Conn. 419; 3 Am. St. Rep. 57.

8 Part v. Jackson, 17 Johns. 239; Gardner v. Niles, 16 Me. 280; Gennings v. Norton, 35 id. 309; Gilbert v. Wiman, 1 N. Y. 550: 49 Am. Dec. 359.

1 Bevars v. Ramsey, 15 How. (U. S.) 179.

2 Greathouse v. Dunlap, 3 McLean, 303.

the bond sued on was obtained fraudulently; that its consideration was the price of chattels sold at auction, on which he, in order to induce bids by others, bid five hundred dollars, well knowing that the said chattel was unsound, and that the defendant offered to return the chattel is good.3

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§ 3592. Consideration controverted. The law imports consideration to a sealed instrument from its seal. At common law a want of consideration could not be pleaded to a suit on a sealed instrument, the presumption of a consideration being absolute and conclusive. The statute of this state has not altered the presumption of a consideration which still accompanies the instrument, but only modified the rule so far es to allow it to be rebutted in the answer.

§ 3593. Date of payment. A bond for the performance of a duty, and for an indemnity, is not within the provision of that statute which allows the plea of payment after the day." A plea of payment of part of a bond, and acceptance in full, is bad.R

3594. Defective answer. In an action on an undertaking executed by and on behalf of the defendants, in a judgment in ejectment, conditioned to pay the value of the use and occupation of the premises pending the appeal, an answer setting up that pending the appeal the plaintiff conveyed a part of the premises to one or more of the defendants in the judgment, and has leased portions to other parties, does not state facts sufficient to constitute a defense. Such answer failing to show when the conveyance was made, it will be deemed not to have been made until the last day the appeal was pending. Such

3 Casey v. Smales, 4 Mo. 77. If the defendant relies upon a want of consideration he must plead it. County of Montgomery v. Auchley, 92 Mo. 126.

4 McCarty v. Beach, 10 Cal. 461; Wills v. Kempt, 17 id. 98. California Civil Code, § 1629, abolishes all distinctions between sealed and unsealed instruments.

5 Hart v. Meeker, 1 Sandf. 623.

6 Doderick v. Leman, 9 Johns. 333; but see Cal. Civil Code, $8 1524, 1629.

7 De Castro v. Clarke, 29 Cal. 11.

answer is also defective in not stating that the use and occupation of the portions of the premises conveyed and leased was of any value. In an action on an undertaking given in suing out an injunction, the defendants can not object, by way of defense, that the business which they enjoined was a public nuisance.10 Conceding that there is a necessary discrepancy between the condition and the penal portion of the bond, it can not be set up by the obligors, as the bond would be single, and in a suit thereon the plaintiff would be entitled to the full amount.11 Insanity is not a defense on an injunction bond, it not appearing that plaintiff knew the fact.12 A defendant can not plead that the only evidence of a breach of bond consists in a certain paper, and then proceed to show that such paper does not prove a breach. He is not allowed to make the case turn on his allegation concerning the proofs of his adversary.18

§ 3595. Duplicity. In an action on a bond for the payment of certain sums of money at Amsterdam, the plea was that the money was paid. Replication, that the sum paid was not accepted in satisfaction by the agents of the plaintiff; that the sum was not paid on the day appointed; and that damages and interest due for nonpayment were not paid. The pleas were bad for duplicity.14 In an action against a surety, one plea alleged a discharge of defendant by the neglect of the plaintiff to sue the principal upon notice so to do; another plea set up a discharge owing to an extension of the time of payment. It seems that the pleading was bad for duplicity.15

9 De Castro v. Clarke, 29 Cal. 11.

10 Cunningham v. Breed, 4 Cal. 384.

11 Swain v. Grave, 8 Cal. 549. An answer in a suit on an injunetion bond which pleads a settlement of the original suit, which by its terms was limited to such controversies as then existed, is no defense to an action on the injunction bond, the cause of action upon which subsequently arose. And a motion to strike out the answer is proper. Silcox v. Lang, 78 Cal. 118.

12 Behrens v. McKensie, 23 Iowa, 333; 92 Am. Dec. 428.

13 United States v. Girault, 11 How. (U. S.) 22.

14 United States v. Gurney, 1 Wash. C. C. 446; affirmed, 4 Cranch, 338.

15 Taylor v. Davis, 38 Miss. 493; see, however, Cal. Code Civ. Pro., 441; Bell v. Brown, 22 Cal. 678: Buhne v. Corbett, 43 id.

A false representation made

§ 3596. False representations. by the principal to a surety on a bond before his signing the same, that a party whose name appeared thereon as surety had signed said bond, will discharge said surety.16

17

§ 3597. Former action. In an action upon a sheriff's official bond, the pendency of a former action upon the same bond may be pleaded in bar; and if found by the verdict, the plea is good. This, however, was under a special statute authorizing but one suit on an official bond, and giving to all persons having several interests the right to join in that suit, or to make use of the judgment recovered if their cause of action accrue after the judgment.

§ 3598. Joint plea. A plea which is entire can not be good in part and bad in part, an entire plea not being divisible; and consequently, if the matter pleaded be insufficient as to one of the parties, it is so in toto. On a joint plea, therefore, of nos est factum to a bond, if the bond is the deed of any of the defendants, the plea is bad as to all, and the plaintiff is entitled to judgment.18

3599. Novation. Taking a note from the obligor in a bond payable in terms at the same time as the bond, and for the same debt, discharges the sureties on the bond, because the days of grace have to be added before the note is payable, and so time is given to the principal.19 Where an answer contains an allegation of alteration in an instrument, it must state that such alteration was made with the knowledge or consent, or by the authority of the plaintiff.20

§ 3600. Positive averments essential allegations. Every plea in discharge or avoidance of a bond should state positively and in direct terms the matter in discharge or avoidance, and

16 Chamberlin v. Brewer, 3 Bush (Ky.), 561.

17 Commonwealth v. Cope, 45 Penn. St. 161.

18 United States v. Linn, 1 How. (U. S.) 104; S. C.. 17 Pet. 88. 19 Appleton v. Parker, 15 Gray, 173.

20 Humphreys v. Crane, 5 Col. 173; see § 3233, ante. A material alteration will not invalidate a written instrument when made by a stranger to the contract. Murray v. Peterson, 6 Wash. St. 418; Gleason v. Hamilton, 138 N. Y. 353.

not leave the defense relied on to be inferred.21 A plea seeking to avoid a bond for being illegally taken in colore officii should specially state all the facts which show that illegality.22 In an action upon an undertaking which was given upon issuing an injunction, and was conditioned to pay all damages sustained thereby, "if the court shall finally decide that the plaintiff (in the injunction suit) was not entitled thereto," if the complaint avers that judgment has been rendered in the injunction suit in favor of the defendants, but does not disclose the ground of the judgment, nor aver in terms that the court has decided that the plaintiff therein was not entitled to the injunction, an answer merely denying that it has been so decided, and the present plaintiff has been damnified, and that defendant is indebted to him, is not irrelevant, and raises a material issue.23 Nor is it shown to be sham by an affidavit stating that the complaint in the injunction suit was dismissed, but not disclosing on what ground.

§ 3601. Replevin. In an action on the bond, the fact that defendant brought his action before an incompetent tribunal is no defense, and the plea that the title of property so replevied is in him is bad.24 Where the defendant in a replevin suit failed to claim the return of the property in his answer, and on the trial the jury found a verdict for the defendant, on which the court rendered judgment against plaintiffs for costs, which was paid, it was held that the payment of the judgment as taken was a complete discharge of plaintiffs' sureties on the undertaking.25

§ 3602. Seals not affixed. A plea, alleging merely that seals were affixed to a bond without the consent of the defendant, without also alleging that it was done with the knowledge or by the authority or direction of the plaintiffs, is not sufficient.

21 United States v. Bradley, 10 Pet. 343; compare Mayor of Alexandria v. Moore, 1 Cranch C. C. 440; Wood v. Franklin, 3 id. 115; Tucker v. Lee, id. 684.

22 United States v. Sawyer, 1 Gall. 86.

23 See McHenry v. Hazard, 45 Barb. 667.

24 McDermott v. Isbell, 4 Cal. 113.

25 Chambers v. Waters, 7 Cal. 390.

26 United States v. Linn, 1 How. (U. S.) 104.

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