
    Cabell and Others v. Hardwick.
    [Tuesday, October 23, 1798.]
    Administration Bond — Suit upon — DecIaration—Variance. .1:; a suit upon an administration bond, if the declaration does not show that the plaintiils sue as Justices of the Court, it is a fatal variance, and the administration bond cannot be given in evidence.
    Same — Same—Same—What Pleadings Should State.— In such a case, the pleadings ought to state for whose benefit the suit is brought.
    In debt upon an administration bond, the declaration was in the common form of á declaration for payment of money, without styling the plaintiffs Justices, &c. The plaintiffs assigned for breaches, that the administrator did not make any inventory of the estate, nor administer the same according to law, nor pay the legacies, and further, that he did not pay “the amount of a decree in favor of the legatees of the said Pearce Wade in said Court, and after-wards confirmed in the High Court of Chancery, for the quantity of tobacco, and in current money.” Plea, conditions performed, with a general replication and issue. Upon the trial of the cause in the -District Court of New London, the plaintiffs offered in evidence to the jury, a bond, payable to the plaintiffs, as Justices of Amherst County Court; of the usual form and with the common condition : And, instead of the usual attestation of the witnesses," there is written at the foot of the bond, a certificate, attested by the Clerk, in this form, “at a Court held for Amherst County, at the Court-house, the. seventh day of May, 1770, this bond was acknowledged-by ■ John- Hardwick,- &c. ” (naming the other obligors), 'to be their act and deed and ordered to be, recorded. The District Court “rejected the evidence as being different from that stated by the plaintiffs in the declaration aforesaid.”
    *Upon comparing the bond and declaration, there does, not appear to ■be any other variance between them than, that before-mentioned, except that the declaration lays the venue in Campbell County, and the Clerk’s certificate shews that it was acknowledged at Amherst Court-house. But, neither the writ, dec-, laration, or any other part, of the proceedings states for .whose benefit the .suit was brought. The plaintiffs, filed a bill .of ex-, ceptions to'the Court’s opinion, and.there was .a verdict and judgment in the District Court for the defendants. From which judgment the plaintiffs appealed to this Court. ’ . , ...
    Marshall, for the appellants.
    Said that the opinion of the District Court was manifestly erroneous; because, upon inspection, it appeared that the bond and declaration corresponded; and of course, there being no variance, that the evidence ought to have been received.
    Call, for the appellees.
    The suit is brought , by the plaintiffs in their individual capacities; and not as Jusficés;"fó'r'-'the':-berie.fit- of creditors or legatees, Therefore, an administration bond, which is taken in autre droit, did not maintain the issue; and, consequently the evidence was properly rejected.
    This distinction is necessary to be kept up, for the safety of the obligors; in order that the judgment, in one action, may be a bar to a future, suit for the same, thing.
    It is also necessary, under another point of view, namely, that the defendant may know to whom he is to make payment and obtain his discharge. Otherwise, two inconveniences will follow: 1st. That the receipt of the legatees will not be effectual against the judgment; which is in the name of the plaintiffs without any style or addition shewing for whose benefit the suit was brought: 2d. That the receipt of the plaintiffs, for a judgment in 'their own names, will be no bar to another suit on the -bond, at the relation of the legatees.
    *It is not like the case of a suit upon a bond to an executor, ih his own name, without his addition of executor: Because there, the whole interest in the bond and money, is' in the executor himself; who is'competent'to give a discharge. Whereas, in the present case, the Magistrates have no right to the private custody of the.bond; but it remains in the public office/'in the custody'of'"'tffe law; and they can neither receive the money, | and give a discharge against the bond,' or refuse their names to a relator to bring suit upon it. Ror which reason, suit may be brought upon it before' themselves. All .which clearly proves that they have not, in their .individual capacities, any authority to institute a suit upon the bond. But, that is the form of the action in the present record; which for the reasons already given is clearly wrong.
    The difference, in these matters, is between the omission of a material and an immaterial addition. The first is fatal; but the other not, as in the case of Bright v. Metcalfe, Cro. Eliz. 256; where in debt upon a bill of 51. which had these words “to be paid as I pay my other creditors,” the plaintiff declared generally, that the defendant • was indebted, to him in 51. payable on. request; the defendant took oyer of the bill, and plead an insufficient matter; to which the plaintiff demurred ; and thereupon exception was taken to the declaration on account of the variance between .that and the bill, as the plaintiff ought to have declared specially according to the bill; and the whole Court, was of this opinion, except Renner; who was of opinion, that the words “to be paid as he paid his other creditors” were void; and that the bill was payable,on demand; like the case in the 4 Rd. 4, where a solvendum to a stranger was held void. But the other Judges were of .a contrary opinion; and gave, judgment for the defendant. In Which case,.if the words “to be paid as I pay my other creditors, ” had been void and immaterial, according to the notion of Judge Renner, the variance would ■ not have affected the decision; but being material, the omission" Was held to be fatal-.
    -*If judgment here, had been "rendered for the plaintiffs, it would have .been in their individual capacities; and the execution, would have pursued the judgment. Therefore, the plaintiffs might have received the monej" and given a discharge against the execution. So, that what they could not do directly, they would have been enabled to have done indirectly. Ror, although they could not have released the bond, they might the judgment.
    Again, it is. a rule of law, that if the place of giving the bond is material, it is necessary to recite the place truly in the declaration. And, by law, • the bond in such a case as this, ought to- be given in the, Court where the administration is granted or probat of the will is made, payable to the sitting Justices of that Court: A circumstance, which renders locality in such cases material.
    . In the present case,, though, the bond declared on, is stated to have been made at Campbell County; and, therefore, a bond made at that place ought to. have been exhibited : But the bond produced, did not correspond with this recital, 1st. Because it is taken to the Amherst - justices, which supposes the probat to be made in that Court, and, that the bond- was actually given'there; so -that' it carries' interna-l-'-evi-. dence along with it, of having been made at another place, than that named in the declaration. 2nd. Because, the memorandum of the execution of it shews, that, in point of fact, it was made in Amherst; and, consequently, it does not correspond with the recital in the declaration. Therefore, according to the before-mentioned rule, the variance is fatal. Robert v. Harnage, 2 Ld. Raym. 1043, [2 Salk. 659].
    But, if the evidence- and declaration had corresponded, yet, as the plaintiffs had not by their pleadings shewn any just cause of action, the Court might, at any stage of the suit, arrest its progress. Eor, if the plaintiff shews no cause of action, the defendant will not be received even to confess a judgment. [Croke, C. J., in Tilly & Wody’s Case, 7 Ed. 4, 13, cited,] 4 Burr. 2144; and in the case of Da Costa v. Jones, Cowp. 729, instances are mentioned of the Court’s stopping further proceedings in the cause.
    *Now here, no cause of action was shewn by the plaintiffs. Eor, the record did not state for whose benefit the suit was brought, nor who were the parties to the decree in the Court of Chancery; nor, what was the amount of the decree. Neither did it appear, that the executor had committed any devastavit, without which, no suit will lie on the administration bond. Claiborne’s ex’rs v. The Spottsylvania Justices, 1 Wash. 31; Call v. Ruffin, at the last term of this Court, ante, 333. To reverse the judgment, therefore, and order a new trial, which can produce no effect, will be doing a vain thing: Because, if a verdict should be found for the plaintiff, the judgment must be arrested.
    Randolph, on the same side. The declaration should in character, have corresponded with the bond. If the plaintiffs had declared on an administration bond, and, upon the trial, had produced a bond to them in their individual capacities, it could not have been received in evidence. But, the rule ought to be- reciprocal, and; therefore, the variance here is fatal Justices of the peace in such cases, may be resembled to a corporation, and if so, their addition ought to have appeared. [The Dutch West India Co. v. Moses,] 2 Ld. Ray. 1532, [1 Stra. 612].
    Marshall, contra.
    Although, the pleadings are not in all respects strictly correct, yet they were sufficient to have prevented the rejection of the testimony. If the faults suggested, actually existed, the trial should have proceeded, and the application should have been to arrest the judgment, for the evidence corresponded with the pleadings, such as they were; and, therefore, could not be refused. The question, in such cases, being only whether the evidence agrees with the allegations of the party producing it? And not, whether the matters stated in the declaration, are a proper foundation for an action? No case has decided, that the addition of Justices, &c. for the benefit of the relator, was requisite; and, the difference is, where the 350 plaintiff ^states a writing to contain, what in fact it does not, and where he only omits to state part of what it does contain. The first is fatal: but, not the other.
    As to the other variance, it is not material. It is only a laying of the venue; and not a description of the bond. Besides, the bond is not dated in Amherst; for, the memorandum, that it was executed in Court, forms no part of the bond. Therefore, it might be true, that the bond was actually made in Campbell; and, consequently, the argument, attempted to be drawn from that circumstance, cannot be supported.
    
      
      Administration Bond — Suit upon. — See tbe principal case cited in Lewis v. Adams, 6 Leigh 330, 340, 342 ; Gordon v. Justices of Frederick. l Munf. 8 ; Taylor v. Stewart, 5 Call 525.
      See monographic note on “Executors and.Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   ROANE, Judge.

The bond stated in the declaration is, (as it appears in the declaration itself,) a mere common bond from one set of individuals to another, and it purports a right in the plaintiffs to have and receive the money thereby acknowledged to be due. The word Successors in the Teneri of the bond, as stated in the declaration, must either be considered as superfluous (in which case, the character of the bond, as before supposed, will not be varied;) or, at most, will only import that the bond was given to the obligees in some corporate character. But, whether for their own use, or that of others? Whether to them as Justices, or in any other corporate character? And what kind of official bond it is? is wholly uncertain.

As administration bonds are for the use of others, and are specifically designated and provided for by law; it follows, that when such a bond is sued upon, and is to be exhibited as evidence, it ought clearly to appear from the declaration, that the bond declared on, is in its character an administration bond. And, it ought not, on the contrary, to be inferable from the declaration, that it is a mere private bond, (or at most an official bond of some kind, but what kind uncertain,) which is the ground of the action.

An official bond, when the ground of an action, ought to be laid in the declaration to have been made to the obligee, in his official character. This doctrine is laid down in the case of Symes v. 351 *Oakes, 2 Stra. 893, with respect to an action on a Sheriff’s bond; and, is supposed to be, independent of authority, a principle almost self-evident.

I hold it also to be a clear general principle of law, that the declaration should manifest in what right the plaintiff sues. In Canning v. Davis, 4 Burr. 2417, an action qui tarn was brought; and, it was insisted on for a variance, that the writ was qui tarn, and the declaration in his own right, omitting the qui tarn part. The Court held the variance fatal, because the declaration omitted the right in which he sued; but, seem to think that the converse would have been otherwise: And in The Weavers’ Company v. Forrest, 2 Stra. 1232, the bil-1 of Middlesex was to answer The Weavers’ Company, but the declaration was qui tam; the Court held it right and no variance: is not being usual to insert in the bill, as it is in the declaration, in what right’ the plaintiff sues; as in the case of executors and administrators, where the process is only to answer A. B. &c.

These two cases seem to shew, that however it may be with the process antecedent to the declaration yet that the declaration itself should show, in what right it, is that the plaintiff sues; and, I hold it to be a principle equally clear, that a plaintiff suing, without setting out another right, shall be taken to sue in his own individual character, and for his own benefit.

With respect to the case mentioned at the bar, of a decision here, in which it was lield not to be necessary for an executor to style himself, I am not. acquainted with it; but, apprehend, upon examination, it will be found, that, in that instance, it was not necessary for him to claim as executor: or, that if it was, it appeared from the declaration at large, however irregularly expressed, that he sued in his character of executor.

If, then, it be-necessary for the plaintiff to state the right under which he claims in the declaration, and he has only stated 352 a bond purporting to be to *himself ’ individually, and for his own -benefit, or at most some vague and indefinite official bond or bonds to a corporation, but of what kind is uncertain, shall a bond which is clearly a legal administration bond, given to Justices and importing a right, not in the obligees, but, through them, in others, be given in evidences to support the declaration as above stated? That clearly would be.tp support an action in an individual right, by producing ,in evidence an official bond, inuring to the use of others; when, by possibility, there may yet be in existence a private bond, corresponding with that, stated in the declaration. My own opinion, indeed, is, that this is by no means probable; but, that opinion must not lead me to remove land-marks; which, in other cases, may produce infinite uncertainty and injustice.

The reason why, a bond, dated in the East Indies, will not support a declaration, stating a bond made at London, although according in dates and other circumstances is, that it does not appear to be the same bond, which is declared on; it being the constant practice to compare the declaration with the bond produced. [Buller’s N. P. 169;] 1 Esp. Dig. 211, [Robert v. Harnage, Ld. Ray. 1043; 1 Sack. 659]. But, this reason will hold with increased force, when the right imported by. the one and the other are different.

Thus the case stands on the declaration, and the comparison, is to be made between the bond as described in the declaration, and of which the plaintiff makes-a profert, and that offered in evidence.

The plea of the defendant admits such 1 a bond as that stated; but, does not preclude him from objecting to the production of any bond, which does not in substance, correspond with the plaintiff’s statement.

How, then, does it stand upon the replication? I will not say (but on this I give no opinion) that the replication, so far as it tends to .expláin any proposition contained in the declaration, may not be resorted to as explanatory of the decla353 rátion for *the purpose of over-ruling the objection of variance; but, the replication in this case, is utterly silent as to the bond being given to the plaintiffs as Justices; and, indeed, if it was not so, that would be a material distinct member of its description, not contained in the declaration, nor necessarily growing out of it.

The replication, indeed, states a breach of certain stipulations, which are usually contained in administration bonds; but, it does not necessarily follow, from thence, that the bond stated- in the declaration was given to the Justices, under the act of Assembly ; or, that it was not a private bond; for, such a bond may be given with conditions similar to those required by the act of Assembly; and, if broken, may be sued by the obligee, for his own use.

The case of Peter v. Cocke, 1 Wash. 257, may be supposed to have an ■ influence on the case. The declaration there, stated a bond to the .plaintiff, and that offered in evidence was made to the plaintiff, on account of Glenn & Peter, merchants of Glasgow. After a- plea, without oyer prayed, an objection was taken on account of the variance; and the District Court -sustained the objection. But, that opinion was overruled here; because, it was unnecessary to state in the declaration the use or consideration for which the bond was given; and, if it had been stated, it would have been mere surplusage. It was deemed mere surplusage, because it was wholly immaterial between the parties, with respect to the right of the plaintiff to recover; and only operated subsequently as a memorandum. Besides, the defendant, as appears from his plea, was apprised of the identical bond; and prepared to meet it. Por, his plea not only admits the'bond stated, but that the, one produced is the same. That case, though, is certainly less strong than the one at bar; where, from any thing appearing in the declaration or even in the replication, the bond stated imports aright in the plaintiffs to recover the money and receive it to their- own use; whilst 354 the one shewn in evidence, which *is not admitted by the plaintiff to be the same, uses their names, it is true, but with an addition which refers to the laws of the country; shewing clearly- the right of recovery, under it, to be vested in others; and, that the same plaintiffs can, by no possibility, recover - on it for themselves, even at law, or receive a shilling of money arising from it.

The result of my opinion on this point is, that we cannot get over the objection of the variance, without breaking through those ‘rules, ■ which, -for the best reasons, have been established with respect to a substantial correspondence between the deed declared on and that shewn in evidence.

This precludes the necessity of my saying any thing to the sufficiency of the breaches assigned, though they at present appear to me -far too value and general; or with respect to the variance, between the bond declared on and that shewn in evidence, relative to the county in which they are respectively said to be dated; except, that it is not shewn in the latter, that it was dated in Amherst; but, only certified by the Clerk that it was acknowledged there; and, therefore, I think, the principles laid down in Roberts v. Harnage, 2 Ld. Ray. 1043, will probably not apply to this case.

The plaintiffs, when the bond was overruled by the District Court, not having offered any other bond which might conform to the declaration, nor suffered a non-suit, nor taken any measure to amend their .declaration, but staking their defence on being released from the verdict and judgment which was rendered against them, upon the chance of reversing the judgment of the District Court, which rejected the bond: and that judgment being in my opinion right, it must stand in force against them. But, as my opinion, as well as that of the District Court, goes upon the insufficiency of the declaration, with relation to the bond offered in evidence; and, as that bond has never been submitted to a jury, nor been the ground of any 355 verdict *one way or other, as far as appears to us in the present cause, X do suppose that that judgment will not bar any party injured, from recovering upon the bond in a proper action. At an3' rate, I do not see how I can, with propriety, avoid affirming the judgment of the District Court.

DEEMING, Judge. There is a clear variance between the bond stated in the declaration and that offered in evidence. It is usual to sign the breaches in the declaration; and when that is not done, they should be stated with such precision in the replication, as that the bond may be plainly identified; and this, with a view to create a bar to any future action for the same thing, by the judgment in the first: Which has not been attended to in the present case; since it does not appear that the plaintiffs were Justices, or who were the legatees, or what persons were claimants. In short, there is nothing in the record from whence we can clearly infer for whose benefit the suit is brought. But, the whole is left in a state of uncertainty, and, therefore, I think the District Court did right in rejecting the testimony.

My first impressions were, that we might relieve the appellants in some measure, by awarding a repleader. But, on reflection, I think we cannot; it is precisely within the decision of Smith v. Walker, 1 Wash. 136; in which, the Court refused to award a repleader, because of the defects in the declaration. That case seems to me to settle this, as to the part of it which I am now considering; and, therefore, I am for affirming the judgment.

CARRINGTON, Judge. I concur in opinion with the two Judges who have preceded me, that there is a fatal variance between the bond produced, which is an official bond, and the declaration which purports to be founded on a private bond ; and, therefore, that the evidence was properly rejected.

I should, however, have been willing to have awarded a repleader, and enabled the parties to have brought their cause to a hearing upon the merits, if I could have done it upon any principle of 356 ^practice. But, the whole pleadings are too faulty. The breaches are assigned with so much uncertainty, that they afford no evidence of any right in the plaintiffs to sue upon the bond produced; and, therefore, could not be made the proper foundation of a judgment, without totally changing the whole complexion and nature of the suit: A latitude, which the Court ought not, and I believe never has taken : On the contrary, the case of Smith v. Walker, 1 Wash. 136, is a direct authorit3r against it; and completely decides the question as to this part of the case. To which I may add, that the case of Chichester v. Vass, in this Court, ante 83, was totally reversed upon similar grounds; that is to say, that the plaintiff having failed to set out his claim with the precision necessary to shew that he was entitled to recover, the Court would not send the parties to another trial upon other pleadings; when it did not appear, from any thing in the record, that the plaintiff had any title to the money, which the evidence produced referred to: so that the principle has been uniformly maintained ; and I see no reason to depart from it in the present case, where the declaration is founded on a private bond, without stating that the suit is brought by them as Justices, or any thing else to shew that the bond produced is the foundation of the suit.

If the Court were-to reverse the judgment, it must be with costs; and thus the plaintiffs, who were guilty of the fault, would be allowed to redress it at the costs of their adversaries; which never could be right. Whereas, if the judgment be affirmed, no inconvenience will follow; because the plaintiffs ma3r commence a new action ; to which, this judgment, as it was rendered without the evidence in consequence of the bad pleading, will not form an3r bar. That course, therefore, is best; especially as it will tend to produce more certainty and prevent a loose kind of practice, which has been gaining too much ground throughout the country. I am, therefore, for affirming the judgment.

*PENDEETON, President. I differ with the other Judges in some respects; and, although the differences are not very great, yet, as it regards some points of practice, it may not be unimportant to mention my reasons for it.

The declaration pursues the common form, declaring on the bond and claiming the penalty. The condition is not always disclosed in the declaration, but is introduced into the subsequent proceedings; which are to discover for whose benefit the suit is brought; that beihg sometimes omitted in the declaration.

The .plaintiff, in this case, annexes the breaches to his declaration; very imperfe'ctiy indeed; but, it gives notice to the defendant on what bond he was sued; to wit, that given for his administration: of Wade’.s estate, and for wljat claim the suit was ■ brought; that is,, to recover money which . the defendant had been decreed to paj7 to the legatees of Wade,

■The defendant, does not demand oyer of the bond and 'condition, so as to introduce the latter; but, takes upon himself a knowledge of both, and pleads performance of the condition, on. which the plaintiffs take issue, referring, I suppose, to the breaches before assigned; as their allegations denied by the plea make-up the whole issue in the cause: A very, blundering proceeding indeed.

The plaintiffs, at common law, were not obliged to produce the bond at the trial; it-being admitted by the plea; and, on a -verdict that the condition had . not been performed, judgment was to- be entered for the whole penalty; but, our act of Assembly, declaring that such judgments shall be discharged, by the payment of damages and costs, has .made it necessary to produce these bonds at the trial; although oyer! of them is not demanded.

On this trial, a bond is produced, agreeing with that in the declaration • in date and penalty, obligors and obligees: . and . with a condition corresponding with 358 that disclosed in the breaches *a-nd plea; where alone, the condition of the bond declared on, is to be. sought for. This bond was rejected by the. Court; because the bond produced is - payable to the plaintiffs, Justices of- the County Court of Amherst; which description . of the plaintiffs is omitted in the declaration. To this opinion, an exception is taken, and a verdict and judgment having been given for the defendant, an appeal is. entered to this Court.

The opinion of the Court is what is excepted to, and appealed. from; and we cannot decide its propriety, independent of other errors appearing in the record: Which, ought not to affect a decision-on this question, however proper for consideration, upon a discussion of what ought to be done by this Court, in consequence of a .reversal of. this opinion; although, that might amount to -a decision of the plaintiff’s suit, the effect of such a dismission being very different from a judgment upon a general ■ verdict for the defendant. But, be that as it may, if we think the opinion wrong, I conceive it would be very improper to .sanctify it by a general affirmance: and thus establish a precedent to be applied to other cases, in which such errors may not occur. .

In support of the opinion of the District Court, it is now argued, that for want of this description, the bond produced does not agree with that in the declaration; the one being payable . to the plaintiffs in their public character; and-the-other to them, as individuals. in their -private capacities: Which makes a material variance; - and, therefore;- ;it wasjmot .admissible.,,-in evidence. ' .... * ■ ■

It is possible, indeed, that the same obligors might, on the same day, give two bonds in the same penalty, to the same obligees ; one in their private, and the other in their public character; but the supposition is very improbable: However, let it be made; in such a case, the private bond would scarcely be taken, to them, their heirs and successors, as the bond in the declaration is described to be; but, what is more conclusive with me is, that 359 x'such private bond would not, nor possibly could have a condition for the faithful administration of Wade’s estate, as the condition of the bond. declared on, is described to be in the breaches assigned, and is admitted to be by the plea. It strikes me, that no man, who views this record throughout, can doubt but that the bond produced, is the same with that declared on: Which shews that the omission of the description- is not material ; and should not have prevented the admission of the bond offered in evidence.

Suppose the breaches had been properly assigned, and the damages claimed for the benefit of certain persons legatees of Wade, and the issue regularly joined; the bond admitted as evidence; and a verdict for the plaintiff, assessing damages. In that case, the Clerk would and ought to enter judgment for the plaintiffs, as in the declarations,-without naming them Justices, for the penalty of the bond, to be discharged by the payment of the damages and costs to those legatees; with such future damages to them or others, as might afterwards be assessed.- Would this Court have reversed the judgment, because the plaintiffs were not named Justices? or would such a judgment have been subject to the control of the plaintiffs, and introduce the inconveniences pointed out by Mr. Call? I can only say, that, in my opinion, neither effect would have been produced.

The authorities cited, do not appear to me to apply; but, some cases decided in this Court, seem pretty strong against the opinion of the District Court; particularly that of Peter v. Cocke, 1 Wash. 257: where the variance appears to have been more important than that contended for in the present case. The bond, produced in evidence, was payable to the plaintiff, for and on account of Messrs. Glynn & Peter, merchants in Glasgow; the. declaration stated the debt as due to himself, without mentioning for whose use: This variance was made an objection to the admission of the bond in evidence, at the trial of 360 the cause; and the objection *was sustained by the Court; the plaintiffs filed an exception, however, to the opinion of the Court,,and, a verdict and judgment being given for the defendant, the plaintiff appealed. Judge Lyons delivered the opinion of this Court, that the objection could not be sustained, upon any principle; that it was unnecessary to state in the declaration, the use, or consideration for which the bond was given; and if it had been stated, that it would have been mere surplusage, -

This authority accords with the opinion I formed upon principle; namely, that the opinion of the District Court against the admission of the bond was erroneous; and, that the verdict and judgment given in consequence of it, ought to be reversed.

The usual entry in consequence of that reversal, would be, to direct a new trial, in which the evidence should be admitted. But, on a view of the whole record, such a trial would be vain to every purpose, but trouble and expense; since the plaintiff could never recover, upon these proceedings. The Court will, therefore, not pursue that ordinary method; and I was led to consider of the proper mode which might produce a trial upon the real merits.

The plea of conditions performed and the general replication, independently considered, made no proper issue between the parties; and if the breaches are to be incorporated into the replication to supply that defect, those breaches are insufficiently stated (for want of expressing the amount of the decree and for whose benefit the suit is brought, instead of the' general description of legatees of Wade,) and cannot aid the replication. So that here is either-no issue at all, or an immaterial one, joined between the parties, and a repleader must be the ultimate effect: Which being discovered before trial, may, and ought to be awarded now, in order to avoid the expense of a useless trial.

My opinion therefore is, that the judgment ought to be reversed for the erroneous opinion; the verdict and judgment set aside, with all the proceedings 361 *from the declaration ; that the plaintiffs being guilty of the first fault, ought to pay all costs in the District Court subsequent to the filing of the declaration, which the plaintiffs might have leave to amend, by inserting after the names of the plaintiffs the words Justices of the County Court of Amherst, in order to remove all future doubt; the defendant to plead thereto de novo; and further proceedings to be had therein.

In Smith v. Walker, 1 Wash. [135,] the Court appear to have inclined to the opinion I have just expressed; but, there being no good pleading at all in that case, they were obliged to award a total reversal.

Upon the whole, I am for reversing the judgment, and entering one according to the principles just now mentioned; but, there being a majority of the Court in favor of the judgment, it must be affirmed.

Judgment affirmed.  