
    Wolcott v. Dwight.
    In the Court below.
    Josiah Dwight, and Phinehas Ashmun, Plaintiffs; Alexander Wolcott, Defendant.
    
    Whether, in case the defendants in error live out of the state, having an attorney within, service of tire writ may be made by an indifferent person,to whom the same is direeled, by cojri^with such attor- '■ nev, and the defendants ? In sueh case, a plea in abatement for defective service, stating, that a copy was left with D. who appears by the plaintiff’s writ to be attorney of record to the defendants, without directly averring the fact, that he was attorney to the defendants at the time of bringing the writ, is ill on general demurrer.
    rp JL HE defendants in error pleaded in abatement, “ That “ said writ is no otherwise directed than to James Thomas, 11 of Middletown, in the county of Middlesex, as an indiffer- “ ent person, who is commanded to serve and return the f‘ same ; and said writ has been no otherwise served, than “ by said Thomas’s leaving ⅜ paper, purporting to be a copy “ of said writ, with each of them the said Dwight, and ~Mi- “ mun, at Northampton, in the county of Hampshire, and “ commonwealth of Massachusetts, at which place the said “ Dwight and Ashmun reside, and to which they are described “ in the plaintiffs’ writ as belonging, apd by leaving a paper, purporting to be a copy as aforesaid, with Theodore w Dwight, Esquire, of Hartford, in the county of Hartford, “ who appears by the plaintiff’s writ, to be attorney of record “ to the said Dwight and Jlshmun, the defendants in error; “ whereas said writ ought to have been directed to, and “ served by the sheriff of the county of Hartford aforesaid, “ or his deputy, or either of the constables of the town of “ Hartford in said county of Hartford.”
    To this plea there was a demurrer.
    IngersoU, and Daggett, in support of the demurrer,
    contended, 1. That the service was good ; and 2. That the plea was ill. ⅜
    1. No provision is made by statute, for service upon persons situated like the defendants in error. By the act concerning “ civil actions,” 
       service is to be made, by reading the writ in the hearing of the defendant, by leaving a copy at the place of his usual abode, or by attaching his person or property,—and in no other manner. The statute concerning foreign attachments  is not applicable to this case. The object of that process is only to secure a debt, where the debtor has absconded. It respects such cases only, where you can have an attachment. There is no other statute, which renders service upon the attorney good upon the defendant out of the state. Then comes in the rule of June, 1804 ;  this is a case, where “ the service is not a prescribed by law and is precisely such an one, as the Court had in view, when they made the rule.
    Further, if the plea has any merits, it will follow, that no service whatever can be made in a case circumstanced like the present. The sheriff of Hartford county cannot go into Massachusetts. Service out of the state cannot be made otherwise than by an indifferent person.
    Again, it may well be doubted, whether the act of Octo-her, 1804,  relates at all to the service of writs of error. It provides that *‘ no writ of attachment or summons, other “ than a subflana, shall be directed to an indifferent person,” except under certain restrictions. It evidently regards mes-ne process only.
    2. A plea in abatement is a mere dilatory plea, not affecting the merits of the case. The greatest precision is, therefore, required,  The courts say, they cannot hold too strict a hand over these sorts of pleadings, which are calculated to defeat the justice of the case.  This plea is defective on two grounds : First, because it (fees not appear from the plea and record taken together, that T. Dwight, Esquire, was attorney to the defendants at the time of bringing the writ of error. It only appears, that he was their attorney, when the original action was appealed from the County Court to the Superior Court; he might afterwards have been dismissed. Secondly, it would not be sufficient, if that fact did appear from the record, unless it was directly averred in the plea. But the plea says only, that he “ appears “ by the plaintiff’s writ to be attorney of record to the de- “ fendants.” Matters of abatement must always be pleaded ; that they appear on the declaration will not avail the defendant. The case of Addison v. Overend 
      
       is decisive of this point.
    Dana, and Dwight, contra.
    The statute of October, 1804, provides, that no attachment or summons shall be directed to an indifferent person, except in two cases. This is not. one of them.
    If a man cut of the state has a proper agent here, notice to that agent, and service upon him, will be notice to, and serñce upon this principal; and this loo in an original suiU But these defendants, the original plaintiffs, do not stand in the predicament of persons who have not been before the court. Service upon the attorney of record is legal service. The object of the law, requiring the name of the attorney, by whom a stranger appears, to be entered in the record of the case, is, that in case of a writ of error, or scire facias, the adverse party may know upon whom to make service. If the party attempts to make such service, and makes it defectively, it is proper ground of abatement.
    COVENANT. Pleading. Rule of SAMASES.
    If the plea is informal, advantage can be taken of it only by special demurrer. In all the cases cited from the Term Rcjiorts, there were special demurrers.
    The Court adjudged the plea insufficient, on the sole ground, that it did not aver, that T. Dwight, Esquire, was the attorney of the defendants at the time of service. On the other point, they made no decision.
    
      On the merits,
    The case was as follows :
    Inan action of covenant, the plaintiffs declared, That being desirous of procuring to themselves a good title of 130,000 acres of unlocated land in Virginia, the property of that state, they, by articles of agreement between them and the defendant, on the 5th of September, 1795, agreed to pay to the defendant, oh ór before the 7th of the same months ⅞ 3,900, being three cents per acre for the tract specified ; also, on or before the 1st of January, 1796, the further sum of one cent per acre ; also, on or before the 1st of January, 1798, the further sum of six cents per acre ; with lawful interest thereon from the 1st of January, 1797. The defendant, on his part, agreed to go immediately tó Virginia, and make inquiry ; and if the tract should be found hot located, or purchased, to survey and locate the saiiie for the plaintiffs ; also to procure a title, grant, or patent to the plaintiff's, or to such other person, or persons, as they should, on or before the 1st of April, 1796, appoint and direct; and that all should be completed at tne sole expense of the defendant, so that the land, and the procuring the tile, should cost the plaintiffs no more than ten cents per acre. If the defendant could not procure the whole tract, he was to procure for the plaintiffs a title as aforesaid to a certain proportionate quantity ; if no part of the tract could be procured, he was to refund, within thirty days after his return to Connecticut, the whole of the sum of three cents per acre first advanced, and the plaintiffs were not to make any further payments. If only part of the 150,060 acres should be procured by the defendant for the plaintiffs, it was agreed, that there should be an apportionment of the payments. The plaintiffs also agreed, that if the tract of land should be found wholly, or in part, vacant, and the defendant should locate the same ; and if the plaintiffs should not pay to the defendant said sum of six cents per acre, on the 1st of January, 1796 ; the defendant should be at liberty, at any time within two months from the 1st of January, 1796, to repay to the plaintiffs the advanced sum of three cents per acre, with interest from the time of receiving it; and should thereupon be excused from any further claim.
    The declaration further stated, that the plaintiffs, in performance of their convenants, paid to the defendants on the 7th of September, 1795, the sum of 8 3,900, being three cents per acre on 130,000 acres ; that the defendant immediately proceeded to Virginia ; and that he returned about the 1st of January, 1796, and represented, that he had been able to procure for the plaintiffs no more than 105,300 acres of the tract mentioned in the articles of agreement. He stated, however, that he had contracted with John Miller, Esquire, of Virginia, for a large tract of land, out of which he proposed, that the plaintiffs should receive 24,700 acres, to make up the deficiency, provided they would pay him. one cent additional per acre. To this proposition the plaintiffs agreed ; and accordingly paid, in fulfilment of the» covenant, on the 1st of January, 1796, the sum of § 1,053, being one cent per acre on 105,300 acres, and the sum of § 494, being two cents fiei- acre on 24,700 acres.
    The declaration then averred, that the plaintiffs did not, on or before the 1st of April, 1796, appoint any other person, or persons, to receive the grant, title, or patent of said lands, and have stood ready to receive said grant, title or patent,of the defendant ; that the defendant wholly failed to procure and deliver to the plaintiffs any grant, title, or patent ; that he did not, on his return from Virginia, nor within two months thereafter, repay, or offer to the plaintiffs the sum advanced of three cents per acre, with interest ; that he has never repaid the sum of § 3,900, nor the sum of ¾ 1,053, nor any part of either ; and that he has not kept the covenants aforesaid, but has broken the same. Action commenced, November 4th, 1.79.9.
    The defendant pleaded in bar, alleging, that he went to Virginia; faithfully made inquiry ; found the whole of the tract vacant, and unlocated ; purchased land-office-treasury-warrants ; and located the tract, including in His entries 130,000 acres for the plaintiffs. Afterwards, on the 9th of December, 1795, and before the defendant had procured a grant for the lands so entered and located, the plaintiffs together with other persons, executed certain other articles of agreement, which, after referring to agreements made in September, 1795, contain these words “ We do severally “ appoint the said Alexander Wolcott, Esquire, our trustee, M or agent, to receive a patent, or patents, in his own name, “ for such lands, as by said agreements we are severally en- « titled to, from the said Alexander, by virtue of our respec- “ live contracts aforesaid ; and we do hereby agree, that if “ the said Alexander shall assign or transfer said lands to “ John II. Lathrop, of Hartford, JVathaniel Terry, of Enfield, u and Horace Hooker, of Windsor, Esquires, to be by them “ holden in trust for us, the subscribers, together with said *£ Alexander, so far as he shrill be interested in any part of e< said lands, and to his, and our, heirs, and assigns, respéc-4£ lively, whenever he shall be thereunto requested, after he “ shall have received said patent, or patents : In that case, “ we agree, that the said Alexander shall be holden to have i{ complied with his said contracts!, so far forth as said con- ££ tracts bind the said Alexander to procure patents to issue i£ to the subscribers severally, orto our agents appointed for “ that purpose, as mentioned in said contracts respectively.” After stating the identity of the agreements mentioned in these articles and the covenants set forth in the declaration, the plea concluded with averring, that although thg> defendant had always been ready to transfer the whole of the lands mentioned to Lathrofi, Terry and Hooker, yet he had never been requested to transfer the same, nor any part thereof,
    The plaintiffs replied, that the defendant had never received, in his own name, any patent, or patents, of said land.
    To this there was a special demurrer, assigning a departure.
    The court adjudged the replication sufficient.
    The defendant moved to be heard in damages ; and on the hearing, offered witnesses to prove the value of the lands for the non-conveyance of which to the plaintiffs the action was brought. To the admission of this evidence the plaintiffs objected ; the court ruled it out; and the defendant filed a bill of exceptions.
    
      Ingersoll, and Haggett, for the plaintiff in error.
    1. The declaration assigns a particular breach of the covenant set out, viz. “ that the defendant did not procure a title, grant, or patent, to the plaintiffs.” After this assignment, the general averments, that the defendant hath not kept his eoy-enant, &c. are to be laid out of the case.  This action is, then, brought for this breach of covenant. On this, if at all, the plaintiffs are entitled to recover. But the plea strikes at the root of this claim :—It avers, that by a subsequent agreement, before any pretence of a breach, the patent was to issue in the name of the defendants.,—How, then, is he liable for not causing a patent to issue to them ? Had the declaration alleged, that the defendant covenanted to procure a patent to issue to himself, and had assigned, by way of breach, that he did not procure a patent to issue to the plaintiffs, it certainly would have been bad. 
    
    To this reasoning it may be replied, that he, the defendant, did not perform his part of the subsequent agreement; for he did not convey to Lathrofi and others, the trustees. We answer,—he was not thus to convey, until specially requested ; and the plea denies, in terms, such demand. The answer, then, is sufficient, if a demand, in such case, be necessary. That it is necessary, is clear from Bul. JSii. Pri. 151.
    2. This replication is a departure. This is fatal on a special demurrer, 
    
    3. The testimony of Granger, and others, as to the value of the land, ought to have been admitted. This the Superior Court refused, on the ground, that the money paid by the plaintiffs to the defendant should be the rule of damages. The contract must deckle this question. The defendant agreed to refund the money, in case the land about which the contract was made, should have been located previous to his arrival in Virginia ; so that a patent of it could not be attained. The plea alleges, that the land was unlocated, and vacant, and was by the defendant taken up. The fact, then, on the existence of which the money was to he re-pah!, fails, am! clamases only are to be recovered. If the land is of greater value titan the purchase money, the plaintiff-: art justly entitled to the full value; if less, their damages should also be less.
    
      Dana, and Dwight, for the defendants in error.
    1. The plea is insufficient. It is no answer to the declaration. Wolcott.- is changed in the declaration, l. with not having procured the title, grant or patent ;—and 2. with having refused to refund the money. To this he answers— that Dwight and Ashmun. authorized him (if he pleased) to procure a patent in his own name, in trust, for their benefit; and then he adds, that he has always been ready to transfer the land in fulfilment of his agreement.
    First. Here is no performance alleged. When performance is pleaded, it musí be as specific and particular as the breach alleged. Thus, in the case of Kirby v. Hausakcr, 
       the covenant was, to enjoy without eviction ; the breach assigned, that a stranger recovered in ejectment is not good, •without shewing elder title. So in Broking v. Cham 
       where the action was covenant for quiet enjoyment, and the breach, that the land had been extended for the King’s debt ; judgment was arrested, because it was not averred for whose debt to the King the land had been taken. In JLeneret v. Rivet, 
       the covenant was—if the plaintiff would acquit the defendant, the defendant would pay the plaintiff £ 10 ; and it was averred, that the plaintiff did acquit the defendant. Motion in arrest was allowed, because there was no averment how he did acquit. In the case of the Duke of St. Aibans v. Shore, 
       it was alleged, that the plaintiff was ready to make a good title, but it was not shewn what title : Lord Kosslys said—“ he ought to set out his title.”
    
      We contend, that the patents should have been particularly set out, on the authority of the last case cited, and the case ofPkilifitsv, Fielding, 
       where it was averred, that the plaintiff had always been ready and willing, and frequently offered, to make a good title to an estate, Etc. but it was held, that the covenant was not sufficient, for that the nature of the title should have been shewn. It is material for the court to know the date of the patents, that it may appear whether they issued seasonably ; for by the terms of the indenture, they were to be ready before the 1st of April, 1796. It is necessary, also, to shew the quantity of land which they contained, and the place of location ; for on all these points we have a right to the opinion of the court.
    Secondly.. The plea does not even amount to an excuse for not fulfilling, on the part of Wolcott. The second agreement authorized Wolcott, to procure a patent in his own name, in trust for Dwight and Ashmun, which, when done, should excuse him from the obligation to procure one in their name, agreeably to the stipulations in the indenture. Unless he did procure one in his name, the indenture remained in full force. The second writing presented Wol-cott with an alternative, and unless he performed the latter branch, the first continued obligatory.
    Thirdly. The plea certainly contains no discharge from the obligations of the indenture. By the second agreement, it was optional with Wolcott, to procure the patent in his own name, or in the names of Dwight and Ashmun. This did not, in any sense, constitute Wolcott the appointee mentioned in the indenture. It only gave him power to make himself their trustee. The construction of this writing contended for by the plaintiff in error, would produce this manifest absurdity : That Wolcott having become the appointee alluded to in the indenture, would hold the land originally contracted for by Dwight and Ashmun, without any responsibility to them.
    
      Fourthly. No notice is averred, that Wolcott had procured patents in his own name. This the contract would necessarily imply ; because no demand of a transfer to Lathrop, Terry and Hooker, could be made by Dwight and Ashmun, until notice had been given. The indenture was to remain in force, unless Wolcott availed himself of the privilege contained in the second writing. Notice of his having availed himself of that writing must of course be given, otherwise it would never be known, and no demand of a transfer could ever be made.
    2. It is said, that we have been guilty of a departure in our replication. Had we counted on the second articles, as well as the first, we must have averred, that no patents had been procured, either in the names of Dwight and Ashmun, or in the name of Wolcott, Instead of the declaration, the averment appears in the replication. If, then, the covenant was necessary at all, it is in direct aid of the declaration, and lends immediately to fortify it. If it was not necessary, R is surplusage. But, it is also said, that you have alleged, that you made no appointee, and the defendant shews one ; you, therefore, cannot set up the new fact to help out your insufficient declaration. We set up the new fact to rebut the averment in the plea, that you have always been ready to transfer the land. It is, in reality, nothing more than shewing, that neither branch of the alternative has been complied with. If, however, it should be necessary to resort to the argument, that it is surplusage, the authorities will justify us. 
    
    S. It is contended, that the Superior Court should have admitted evidence, on the part of Wolcott, to prove the present value of the land. A moment’s attention to the nature of the case, will shew, that there is no foundation for the claim. Wolcott covenanted to procure a title, grant, or patent to the land ; or to refund the money which he had received in payment for the land. He has done neither. What-is the rule of damages? None other than the sum paid, and interest. Besides, the hearing in damages is an equitable proceeding. Wolcott wished to prove, that, if he had fulfilled the first part of his covenant, and obtained the land, Dwight and Ashmun would have been worse off, than they Would be by a total loss of the money paid. This would be strange equity. But the evidence in no sense was relevant to the case. Having failed of obtaining the title to the land, Dwight and Ashmun call on Wolcott to fulfil his engagement to refund the money paid. This being strictly the covenant, what has the value of the land to do with the action ?
    
      
      
         Stat. 24,25, edit, 1796.
    
    
      
      
         Ib. 137, 138,
    
    
      
      
        Ante, vol. 1.p. 330.
    
    
      
      
         Stat. 674, edit. 1796.
    
    
      
       3 Term Rep. 186, Hixon v. Binns.
      
    
    
      
      
         5 Term. Rep. 488, Roberts v. Moon, 8 Term Rep, 515, Haworth v. Spraggs.
      
    
    
      
      
         8 Term Reft. 769.
      
    
    
      
      
        5 Com. Dig. tit. Pleader. (C. 44, 45, 46, 47,48.) 'Esp.Dig, 309. 3 Term Rep. 307, Harris v. Mantle.
      
    
    
      
      
         5 Com. Dig. tit. Pleader. (C. 47.)
    
    
      
      
         Ibid. (F.7,8,11.)
    
    
      
      
        Cro. Jac. 315.
    
    
      
      
         Cro. Jac. 425.
    
    
      
      
         Ibid. 503.
    
    
      
       1 Hen. Bla. 270.
    
    
      
       2 Hen. Bla. 123.
    
    
      
       1 Salk. 139, Smith v. Sharp, 1 Stra. 228, Gyse v. Ellis.
      
    
   By the Court,

Austin-, Asst, dissenting,

The judgment was affirmed.  