
    Spaulding vs. Millard.
    In an action on a bond for the payment of a sum of money by installments, it is not necessary to assign breaches in the declaration according to the requirement of the statute, w
    Frivolous Demurrer. The suit in this case was commenced by the filing and service of a declaration, on the 16th December, 1836, on a penal bond, dated 21st November, 1835, conditioned for the payment of $2000, in manner following: $100 on the execution of the bond, and the residue in four equal annual installments, with interest annually, on the sum remaining unpaid. The defendant put in a general demurrer, setting forth as cause of demurrer, the want of an assignment of a breach of the condition of the bond. The plaintiff moved for judgment on the ground of the frivolousness of the demurrer.
    For the defendant, it was insisted, that the plaintiff ought to have assigned breaches of the condition of the bond (2 R. S. 378, § 5). That although it is not necessary to assign a breach, where the bond is conditioned for the payment of a sum of money in gross, breaches must be assigned where the money is payable by installments, or the bond is conditioned for the payment of an annuity, and that so are the English decisions (1 Saund. 58, n. 1. 2 id. 187, a, n. 2; 6 East. 550).
    For the plaintiff, it was conceded, that the English decisions were as stated on the other side, but that the rule did not prevail here, and the following cases were cited, 9 Johns. E. 334; 1 Cowen, 36; 3 Wendell, 54; id. 454; 7 id. 350.
   Per Curiam.

The plaintiff is entitled to judgment.  