
    Atwood vs. Lewis.
    Action founded upon two promissory notes executed by defendant to plaintiff, payable at one and two years. Plea: that, at the time of tho execution of tho n^tes, .plaintiff entered into a written agree* ment with defendant, that if, at tlu tune of tho maturity of the notes, it should not be convoi iont for the defendant to pay Ihceamo, plaintiff should wait the convenience of defendant; in consideration of which, defendant agreed to pay interest; and that it was not convenient for defendant to pay. Held, to he no bar to the action; and, that if defendant had sustained any damage, by being compelí* ed to pay before it was commenced, he mui sue upon the agreement. (McGirk .fudge, dissenting on this point.")
    2. The plaintiff, in his demurrer to the defendant’s plea,omitted to crave oyer of tho agreement, of which prnfert was made in the plea; the circuit cnurt permitted him to correct the mistake by interlining the demurrer. Held, that the court did not err, in this respect, as this was net amendment of the demurrer, but rather, '-n interlineation of a pirt of the record, which had been carelessly omitted be* fore the demurrer was Died, which did no injury to the defendant* as he happened to have the instrument in court.
    Appeal from the Circuit Court of St. Louis comity.
    
      Hamilton for Plaintiff.
    
    1. A demurrer connot be amended. It Í3 believed there is but one instance on record, in which it was ever attempted. Maynard vs. Ho¡ kins, Say 46. This is manifest upon principle. The party cannot thus be permitted to chango under or depart from the grounds of demurrer as originally taken. An improper grant of oyer does not affect a case in which it is granted. Wright’s Reports 10. The oyer furnished has not been made an available feature in the record, as it does not appear cn the face of the plaintiff’s own pleading, 1 Chitty, 468. It being accidentally incorporated into the record does not make it a part of the pleadings. Tho principal causes of demurrer specified, therefore, do not apply.
    2. The second plea contains a good defence, Chitty on Bills, 161, 162.
    3. The third plea is valid. Chitty on bills, 164. I Wendell, 317.
    4. The plaintiff’s declaration is bad, petition and summons is not the remedy. IÍ. C. 105, Sec. 7.
    5. The agreement was conditional; Kirby’s-Reports, 364. It "was madeto depend updn the defendant’s ability or convenience to pay. This must be shown. Johns, 36. 17 Wendell, 41.9.
    6. If the oyer be spread upon the record so as át all to be brought to the notice of the court, it was sufficie tt to ha- e ■shown the court that interest was not due by the contract* except upon the condition set forth. The court allowed-interest in full.
    *7. But supposing the oyer to have been regularly ordered, ■ and that the plaintiff' had made it a part of his ] leading--; the 1, 2, 3,-and 4th cause of demurrer do not apf ly, inasmuch, as we do not. proceed for the penalty under the agreement. We set forth a condition, making part of the original contract, in the one ] lea, and in the other, an agreement for a valuable consideration to extend the time- of payment. That the performance of the-e is secured by a penalty, does not convert the defence into a proceeding-to enforce that penalty. We show an agreement differing from that upon which the plaintiff brings suit, or so modifying or qualifying its terms as to-enable us to inrist that he i; premature in suing for the recovery of the amount of the notes. 5. This s-pe- • cification doe* not ap¡ ly, for the same reason that the plaintiff erroneously regards the defence ns an effort to enforce the penalty. 6. The [ leas go to the whole action, in alleging that which shows the debt U not yet due. The de'endaut has a right to set up the agreement by way of defence. 6 Wendell 291. 7. It is an admitted principle, that it is not sufficient merely to allsgs quid duplex et caret forma, lut ■the point that is so must be precisely [oints-dout. 8. The convenience or ability of the defendant to .pay is the issue tendered. If part of the contract, thri must !e shown. 7 Johns, 36. 17 Wendell, 419, already re‘erred to. 9. If the pleas be contradictory and inconsi.tent, ihe statute furnishes a remedy. R. C. 459, sec. 24.
    
      Darby for Defendant.
    
    In looking.into the record in this cate, it will be seen that the only .question to be decided is, whether the circuit court •erred in sustaining the demurrer to the second and third pleas of the defendant.
    
      These pleas are manifestly defective on general demurrer.
    The second plea is defective for want of .certainty as to time and amount. Stephen on pleading p. 341. Comyns Digest pleader, c. 19. Denison vs. Richardson, 14 East, p,. 291. Stephen’s pleading, p. 345. The plea, therefore, should have stated specifically that the plaintiff did wait with the defendant after the said notes became due, from a certain iday to be named in the plea, to a definite period abo to be named, and that the interest at six per cent on said notes amounted to a sum certain to be specified, which sum he, the said defendant, paid to the said plaintiff; for without this, there can be no traverse of the fact. Cowper’s Reports, 2 vol. Carlisle vs. Keas, p. 671. G Term Reports, Grim wood vs. Barnett, 460.
    In j leading the performance of a condition or covenant, the party must not plead generally that he performed the covenant or condition, but must show specifically the time, phe', and manner of performance. ¡Stephen’s pleadings p. 382, side paging; same page 427 side paging; same 448, Co-min. Digest; Pleader (E. 36.) 1 Saunders 28, N. (2.) 1 Term Reports 40. 6 Johns. 63, 2. Saunder’s Rep, 127. 1 Chitty 478.
    The pleas are not susceptible of any issue, and in fact, no issue material to the cause, is, or could be made to these pleas; the very object and intention of all pleadings, and without which, no plea is good. Chitty’s Pleadings p. 474; C Johns. 63. Gould’s ^leading page 357. 18 Johns. Reports page 2S, Hallet vs. Holms. See also 1 Chitty PI. p. 510; 1 Saunders Reports 28, note 3.
    A plea in bar of the plaintiff’s action must be certain to a common intent, and direct, and positive in the facts set forth, stating them wilh all necessary certainty. Van Ness vs. Hamilton, 19 Johns. Rep. p. 349; 2 Condensed Reps. U. S. The U. S. vs. Gurney, page 132.
    It is not a good plea for the defendant to state, that he paid a sum certain, without averring it to be the sum due. The amendment did not affect the pleas. But the granting of this amendment was no error. 1st section of 6th article of practice at law p. 467. Atwood vs, Gillespie 4 vol. Missouri Decisions page 425. Wilkinson vs. Blackmel 4 vol. p. 428. Revised Code, page 459, sec 20. Statute of 1825, p. 627. Singleton vs. Mann, 3 vol. Mo. Decisions, page 464. I vol. Decisions of Missouri, page 318, Bellissime vs. M’Coy. MeCallister vs. Mullanphy, 3 vol. Missouri Decisions, page 38. Johnson vs. White, page 223,2 vol. Mo. Decisions. 1 vol. Miss. Reports, Sitnonds vs. Beauchamp, p. 589. Crump vs. Mead et. al. 3 vol. Mo. Reports page 233. 2 Condensed Reports S. G. U. S. Young vs. Breston, 98. 5 vol. cond. Rep. Tayloe vs. 1'. & S. Sandiford page 210.
    There is no error, and the whole case seems to have been decided according to the right and justice of the cause, and the judgment of the circuit court should therefore be affirmed.
   Opinion of the. Court delivered by

Tompkins Judge.

Lewis brought h’u action against Atwood in the circuit court of St. Louis county, where he obtained a judgment, to reverse w hi., a Atwood'appeals to this court.

The action is founded on, two notes, the one dated the24th May, 1836, for $1023 33, payable two years after date, the other, for the same sum, payable three years after date.

The defendant {leaded three pleas: 1st, nil debet; 2d, that at the time he executed the said notes, and before the delivery thereof to the plaintiff, he, the said plaintiff, stipulated and agreed with the said defendant, by a written instrument of the same date with the said notes, of which proiert is made, that if, at the time of the maturity of the said notes, it should not be convenient for the defendant to pay the same, the plaintiff would wait the convenience of the defendant to pay; in consideration of which, the defendant also, by said agreement, promised to pay the plaintiff at the rate of six per cent ■per year upon the amount of the said notes, for such time as the said plaintiff should wait for the payment of the said notes after they should fall due, which interest the defendant avers he has paid; and that when the notes became due, it was not convenient for him to pay the same, &c.

The third plea is the same as the first, except, that it ts averred, that the agreement was entered into after the execution and delivery of the two notes. The plaintiff demurred to the second and third pleas; and on a subsequent day, Gained leave to amend his plea-bhg?, in the ca-e, by craving oyer of the instrument of which profert was made. The agreement is, that whereas the said Atwood has execu-iefl h*--1piomissory notes to the said Lewi? at one, two, and three year', for the payment each of $1023 S3; and whereat raid Atwood has secured to said Lewis the payment ofsJd note?, by mortgage on real ettaie, the said Lewis agree? that at the time of the said note? falling due, if it is not convenient for said Atwood immediately to pay thesame, that he, the said Lewis, will wait the convenience of the said Atwood; and in consideration thereof, the said Atwood agree? to pay the said Lewis intere.-t at the rate of six per centum, upon the amount of the notes, for such time as the raid Lewi? may wait foi the payment, after they become d-ae, &c. The j leas, it, perhaps, may be nece?sarv to observe, each contained an averment that when 1 lie notes became due, it wa? inconvenient to the defendant to pay, and still continued to he so, at the time when, &c. The counsel for the defendant relies on the case of Miller and others vs. Holbrook, 1st Wendel 317, to sustain the tocond and third picas. In that cao the action was assumpsit on a promissory note for $1093, and it also contained a count for goods sold and delivered: ] lea, general issue. On the trial of the cause, after proof of making the note, the defendant ottered, to ] rove, that previous to the note becoming due, it was agreed by the plaintiffs to extend the time of payment, in consideration of the defendant agreeing to pay $21)0 when the note should fall due, and giving his note for the balance; that the defendant, when the note did become due, did pay to the plaintiff? the sum of $200, and offered his note? for the balance, pursuant to the agreement; that the ¡.lamtiffs took the money, but refused to accept the notes; that the defendant then required of the plaintiffs to return the money, which they refused to do, and commenced this suit. The court said, the bill of exceptions is frivolous, and the plaintiffs are entitled to judgment. The court go on then to say, that in Keating vs. Price, the defendant was allowed to avail himself of such an agreement, but it is to be presumed that in that case, it appeared that the promise to enlarge the time •of performance, was founded on a good and sufficient con-«¡deration, and none such appeared in that case. For any thing decided in that case we are left free to decide this case on its merlt--,as they prs ser t themselves to our own discretion. The defendant, in the enure before this court, assumes to pay the notes on a given day, and the plaintiff enters into another agier-nm-nt with the defendant to wait with hirri,i‘, when the notes be-atne due, he shall not find it convenient to pay, the deferí hint paying interest.

deí upon two promissory by defen. > átono and pT^^thit at thet'mo of th.; execution t¡H. notes, pta-.ntiff on-writt magree-fcn(jant if, »t tbo time of thimatun-the notos sll"ul<1 not ffr defendant aamo.plaintiff em;c of deft; t o«°orwhich, a-reed 11 pay j„t:;ro t; and for defendant pba^‘n0 ^ j5'0 “■cjior:j dufeid’t had being competed to pay bo-ho must sue agreement, d^sontín/on this point.)

It is impossible for the plaintiff ever to prove when it may suit the convenience of the defendant to pay, and if he lie a dishonest man, lie will never admit that it suits his conveni■ence to pay. It is most evident, that the ¡laintií) did by that agreement, intend lo gibe the defendant his li 'to pay the money in; and he has no means afforded him to prove that it is convenient for the defendant to | ay. The defendant then mu.-,†. pav the monev according to the terms ,. , ‘, , ... oi the note.-, and ft he has sustained any damage, by being 'Compelled to pay before it was convenient lor him to pav, he must sue on the contract, and have a jury to ascertain the damages which be may have sustained hy reason o) being compelled, in this action, to pav the amount of tho-o notes, . . . . , ,, , , when it was inconvenient to do so. 1 lie jury are the only tribunal to find the fact of inconvenience, and the amount damages sustained in consequence, of thi> inconvenience.

The defendant objected to the leave given by the court to the phinrhT to amend the ¡leadings by craving oyer, contending, that a demurrer cannot^be amended, and th.it having failed to crave oyer beiore he demurred, the jlninliff could not afterwards come in and crave over, lie excepten ,' , this deui ion of the court, m granting leave to amend by having oyer of the instrument of which the de'endant in plea had made proferí. If any te stimony had been given on the occasion, tobe preserved in the bill of exceptions, statute directs the party how to rroceed to get the bill fore this court, even when the circuit court refuses to sign -his bill. He must procure it to be signed by three by-standers, &c.; if then the court refuse him leave to file, because it *S untru0’ may take affidavits, and file them with the clerk. The court does not say that the facts stated in the bill of exceptions are untrue, but that they already appear on dle record in the history of the cause, which it is the duty of the clerk to keep in his book. This is dearly my opinion, ^ eJ"en happen to be mistaken in that, the defendant already has his bill of exceptions legitimately before this court, for by the 23d section of the fourth article of ihe act 10 reSu^afe practice at law, every court, to which an appeal or writ of error is taken, shall admit, as a part of the record of the cause, every bill of exceptions taken therein, upon its appearing satisfactorily to such court that the truth of the case is satisfactorily stated in such bill, &c. After the plaintiff had demurred to the pleas without craving oyer, the de-could not be supposed to keep the instrument set out those pleas in court for the convenience of the plainl'ff; dut ^10 did keep it, and if he had sustained any damage by comPe^ed to, produce it, and set it out on the record, it was damnum absque injuria, a damage of which the law makes no account. But it is not contended that the aspect 1 of the cause is changed by making that instrument a part of the record. No reason then is seen why a mandamus should go to the circuit court to make that bill of exceptions a part of the record. It is true, as the defendant contends, that a demurrer cannot be amended; it is because a demurrer cannot be demurred to. I do not, however, understand, that craving oyer of the demurrer is an amendment of the demurrer; it is rather an interlineation of a part of the record,, which had been carelessly omitted before the demurrer was filed, which could do no injury to the defendant, as he happened to have the instrument in court. The circuit court then, in my opinion, committed no error either m sustaining the demur! ers to the second and third pleas, or in allowing the plaintiff to have oyer of the instrument, of which profert was made in the defendant’s plea. Its judgment is therefore affirmed.

tiffrtn ®vrr®>'totholn plea, omitted mont, ofgreC was made m the plea; Uio circuit court permittedhim to-comct the mistake by interlining the demurrer-: held, that the court did not err, in this respect, as ■ this was not an amcndm't of the demurrer, but, rather,an intei-lineation of a part of the record, which had bconcare-Jes3ly omití ;d before the demurrer i was filed, which did no injury to tho defendant,as he happened to havo the instrument itjeourt.

McGirk Judge.

On the last point I concur. But on the question of the effect of the covenant, I rather think it amounts to a release of action, and let the plaintiff proceed to foreclose his mortgage. See 2d Bac. Abr. 348, title covenant.

Napton Judge.

I concur in affirming the judgment — on the ground that the covenant here pleaded in bai did not amount toa release, and consequently could only be the ground of a separate action.  