
    Carpenter against Alexander.
    NEW YORK,
    Oct. 1812.
    In an action of the covenant the plaintiff mminer^foR o=ln.si.t0 Wlt® the 20th May 125 dofi’ars on ^breach as-that “the said doikrs° ought paid a&cb but the said sum. although Ptlm requested,”3S &c.
    On demurrer, it was held that thebreach was not well dWSnot’ “a P.earwith sufficient certain ty which of the 125 doíuu s has not been paid.
    THIS was an action of covenant. The declaration stated that the defendant, on the 22d May, 1809, at, &c. by his certain writing, sealed, &c. covenanted and agreed, that the defendant, in and by the said writing, was held and firmly bound unto the plaintiff, his heirs, &c. in the full sum of 250 dollars, to be paid to the plaintiff, In manner following: 125 dollars on the 20th May then next ensuing the date of the said writing; and the farther sum of 125 Iars on the 20th May, 1811, with the interest, &c. and protesting that the defendant had not performed and fulfilled his covenants, &c. the plaintiff alleged that the said sum of 125 dollars the defendant ought to have paid, according to the tenor and effect of the said writing, at, &c. but the said sum of 125 dollars is yet unpaid; although, &c.
    There was a demurrer to the declaration, and joinder.
    
      H. Bleecker, in support of the demurrer, contended, that the breach was not assigned with sufficient certainty,
    
      E. Williams, contra.
   Per Curiam.

The breach is not well assigned, for it does not appear, with sufficient certainty, which of the two sums of 125 -1 T, , . . m, , . „ dollars has not been paid. The court can, perhaps, infer from the whole record, that the breach was intended to apply to the non-payment of the first sum mentioned in the condition of the bond; but the party ought not to leave such a fact to inference and deduction, but allege it with precision and certainty; and if he does not, he ought to be punished in costs, for slovenly and careless pleading. There must be judgment for the defendant, with leave, however, to the plaintiff to amend his declaration, on the usual terms.

Judgment for the defendant.  