
    Wales vs. Walling.
    Appeal from Frederick County Court. This was an action of debt for &75. 'The declaration'stated, that the defendant, (now appellee,) on the 29th of August 1808, at, &c. by his certain writing obligatory, acknowledged himself to be held and firmly bound unto the plaintiff, (now appellant,) in the aforesaid sum of seventy-live' dollars, to be paid to him the plaintiff when he should be thereunto ¡required, &c. The oyer given of the writing obligatory on the defendant’s prater, is as follows: “For value received, I do promise to deliver unto Mr. cRoger.’li ales,' on or before the first day of April 1809, one horse, to be’ valued by two judicious men at'seventy-fi'ye dollars current money of the United States; and in case of a disagreement in the persons so appointed- to appraise said horse, I do hereby hold myself firmly bound apd indebted to the said ’lioge); Wales, or assigns, in the sum of seventy-live dollars current money.” It was signed ami sealed' on the’29th of August 1808, by the defendant. The defendant demurred specially to the declaration, aiid assigned the following causes of demurrer. \ 1 a J > * - 1 . C } r ' ! ' I Í ; !
    1. Because the writing obligatory, whereof, the plaintiff hath given oyer, varies from the writing obligatory set forth in the declaration, ' ’'' ' ( :
    J W, by Ins pote under sea!, pro imsed to de.iver to H W, on or before, £ce a luirle, to be vnlu< d by two ju~ StHwoiis ipvn at £75, and m ras - of a disagreement i?i the persons so appointed toappume said louse, h<“ held. himself bound and ind< bted to,- R W in .the sum oí %7.% On this noto U \V biought ft» action ihr£75%tt* gmnst J W,aml dee hired on the note as if it had been p;i\tn eXprpssK ids.* tíiiítsuiTi of money, J NY , utter having had ojer- of die note, dejnttrml special)} to the fit-» c/aiation,. asstpiing h,r emires ti v«;ia»<:e between the note and that. set foith in the deelarauun; that there was no avirmeut Unit,/ VV did n.jt deliver ihd hoise to bo vaiiu d? nor a disarm einenfc ‘>f the pu’atms to have been appointed to apptano the horse, not--a <Umand of or refusal b) J }V to fit liter such horse, J3e* /nyrrer 1 uled £coi$
    
      2. Because the plaintiff hath not set forth in his declaration that the defendant did, on or before the 1st dpy of April 1809? refuse to deliver to the plaintiff' a horse, to be valued according to the terms of the said writing obligato* ry.
    3. Because the plaintiff in his said declaration hath not averred a disagreement of the persons to have been appointed to appraise such horse, nor has he averred any demand of or refusal by the defendant to deliver such horse as mentioned in said agreement, so as to entitle him the plaintiff to sue for the sumof g75, mentioned in the writing obligatory.
    4. Because the said declaration is uncertain, and wants form. The plaintiff joined in demurrer. Judgment upon the demurrer was given by the county court for the defendant. From that judgment the plaintiff appealed to this court.
    The cause was argued before Chase, Ch. J. and Buchanan, Nicholson, Earle, JohnspN, anil Martin, J.
    
      Boss, for the Appellant.
    "Whenever it is essential to the cause of action, that the plaintiff should have requested the defendant to perform his contract, such request must be Stated in the declaration, and proved. 1 Chitty's Pleadings, 322. The converse of the above positions is equally true. The instrument of writing, upon which this suit was brought, creates a debt immediately, to be paid at a subsequent day, to wit, the lpt of April 1809. The plaintiff’s cause of action commenced with the writing obligatory, to wit, the 29th of August 1808, but its legal demand, was suspended until the 1st of April 1809, therefore it was not esseptial to the plaintiff’s cause of action to set forth that the defendant did, on or before the 1st of April 1809, refuse to deliver to the plaintiff’ a horse, &c. for before that period ariived there was a debt due, or a cause of action in the plaintiff', liable to be defeated by the defendants delivery of a horse, according to the terms of the writing obligatory; but the plaintiff’s cause of action did not arise irons the nonperformance of the contract by the defendant, for the plaintiff' had a vested interest from the date of the writing obligatory. The delivery of the horse, &c. was a proviso or condition, inserted in the writing obligatory, for the benefit of the defendant, with all the requisites of which be was bound at his peril to comply. Lamb's Case, 5 Coke, 23. More & Baker vs. Morecomb, Cro. Eliz. 864. Studholme vs. Mandell, 1 Ld. Raym. 979. The proviso or condition, when performed, or an oiler and readiness to perform, would have operated as a defeasance to the plamtili’s action, and as matter of defence, should have been shown by the defendant, and need not be stated in the plaintiff’s declaration. 1 Chitty’s Pleadings, 228, 229. In debt, on a bond with condition, the plaintiff may declare generally, and it is on the defendant’s part to show the condition, which goes by way of defeasance, &c. 3 Bac. Ab. 714. If an interest passeth presently and vests, and is to be defeated by matter ex post facto, or condition subsequent, be the condition or act to be performed by the plaintiff or defendant, the plaintiff may declare generally without showing the performance, and it shall be pleaded by him who shall take advantage of the condition, &c. Ughbred's case, 7 Coke, 10. In the case now before the court, there was an interest vested in the plaintiff, upon the execution of the writing obligatory, to be defeated by an ex post facto. act to be performed by the defendant, to wit, the delivery of a horse, &c. on the 1st of April 1809, and if delivered according to the terms of the writing obligatory, should have been pleaded by the defendant, for whose advantage the condition was made. It was not necessary for the plaintiff to aver “a disagreement of the persons to have been appointed to appraise said horse;” the appointment of the men was a duty incumbent on the defendant, as in Lamb’s case, &c. aud it would be a strange thing to require of the plaintiff to aver a disagreement of the men to appraise such horse, when no men were appointed, and no horse offered for the exercise of their judgment; for an averment of a disagreement of the persons, &c. would ex vi termini suppose that men were appointed, and a horse produced for their appraisement. A demand and refusal were equally unnecessary, the horse was not to be delivered until the 1st of April 1809, before that time no such demand could, consistent with the writing obligatory, be made, and after that period the plaintiff was not bound to accept of such horse, if offered by the defendant. In what the variance consists, as alleged in the first cause of demurrer, it would be difficult to conceive, had not tiie defendant's counsel said, in an action on the case on a special agreement, the plaintiff ought to state the agreement as it really was, though in the alternative. This position, (though determined otherwise by Lord Mansfield in Layton vs. Pearce, 1 Doug. 16,) may be admitted* yet there is no variance in this case, for this is an action of debt on a writing obligatory; and when a suit is brought on a deed, only so much need be averred as shows the plaintiff’s cause of action. Bristow vs. Wright, 2 Doug. 667. A request laid in the declaration to pay the debt before it is due* is not material. Frampton vs. Coulson, 1 Wils. 33.
    
      Brooke, for the Appellee.
   JUDGMENT AFFIRMED,  