
    Chetwood at the suit of The President, Directors, and Company of the State Bank at Elizabeth.
    In an action of debt against a security, on bond with a condition for the faithful performance of duties as cashier of a bank, it is not necessary for the plaintiff to set out the breaches in the declaration, he may do it in a subsequent part of the proceedings.
    This was an action of debt on bond, and the declaration wras in the common form of declarations on bonds for the payment of money. The defendant craved oyer of the bond, which was given, and was in these words : “ Know all men, &c., that we E. B. D., cashier of the State Bank at Elizabeth, W. D., William Chetwood and E. H., each and every of us are hound unto the president, directors, and company of the State Bank at Elizabeth, in the sum of §40,000, to bo paid,” &c., (in common form); and ho also craved oyer of the condition of the said bond, which was granted, and was in substance as follows : 'That if * the above bounden, E. B. D., cashier of the State Bank at Elizabeth, shall from time to time, and at all times, render a just and true account to the president and board of directors of the said bank, for the time being, of all the moneys, securities, stock and other property of the president, directors and company which shall come to his hands, or be committed to his charge; and also of all the moneys which may be deposited in the said Stale Bank by any person or persons for safe keeping, and deliver the moneys, securities, stock and other property of the said president, directors and company, in his hands, together with all documents, instruments of writing, papers and books belonging to, or for the use of, the said president and company, to his successor in office, and shall well, honestly and faithfully perform all the duties of the office of cashier of the said State Bank, and shall answer for all improper appropriations, waste, embezzlement or destruction of the said moneys, securities, stock, property, documents, instruments of writing, papers or books which shall be done or committed by any person or persons to be by him employed in the said office, then this obligation to be void, otherwise to be and remain in full force.” After oyer was given, the defendant demurred to the declaration, and assigned the following as causes of demurrer :
    1. That the said William Chetwood was not, as he ought to have been, impleaded with E. B. D. the cashier for whom he was surety.
    
      j 2. That the plaintiffs, although their action was founded /apon a bond other than for the payment of money, had not .assigned, in their declaration, any breach or breaches of the said condition, as by law they are required to assign. Nor does it appear that they have sustained any damage by reason of any breach or breaches of the condition of the .said bond.
    3. That it does not appear, by the said declaration, that “ the President, Directors and Company of the State Bank at Elizabeth ” aforesaid, are a body corporate, or have any authority in law, by that name, to prosecute their action against the defendant.
    Vanarsdale, in support of the demurrer, relied upon the second cause of demurrer, and contended, that the plaintiff was bound, under our statute, {Rev. Laws 305, see. 5,) to assign breaches in his declaration. This statute is similar to tho statute * of the 8 and 9 W. III., e. 11, see. 8, and enacts, “ that in every action upon any bond for any penal sum for non-performan ce of covenants or agreements contained in any indenture, deed or writing, or upon any bond with condition other than for the payment of money, the plaintiff mrj.u assigrpas rna.ny breaches as he_shall think fit.” It was made in favor of defendants, and was a remedial law calculated to give plaintiffs relief up to the extent of tho damages sustained, and to protect defendants against the payments of further sums than were in conscience due, and also to take away the necessity of proceedings in equity to obtain relief against an unconscientious demand of the whole penalty, where small damages only had accrued. The word may, therefore, in this statute, ought to be construed the same as must. This construction had been given to the same word in the English statute' of 8 and 9 W. III., and rendered it compulsory to assign breaches. 2 Salk. G09 ; 1 Saund. 58, note 1; 5 Term liep. 538 ; Ib. G36. The same construction had been put upon the word may, in the second section of our statute concerning obligations, [Rev. Laws 305,) which enacted, that an assignee of a bond or writing, obligatory for the payment of money, may maintain an action thereupon in his own name. It had been decided, in the cases of Noble v. Reed, (1 South. 355,) and Carhart v. Miller, [Ib. 573,) that the suit must be in the name of the assignee. For some time after the passing of the statutes 8 and 9 W. III., it was still the practice to proceed on bonds of this kind in the common law method. But when this statute came to receive a judicial construction, it was held that the obligee could not get judgment for the whole penalty, but must assign breaches, and have the damages assessed upon each broach. 2 Wils. 377; 1 Saund. 58, note 1; 6 Fast. 613 ; 5 Term Rep. 636; 5 Com. Dig. 441, title Pleader F. 14.
    
      During <f- Wood, contra,
    admitted, that the plaintiff proceeding on a bond, other than for the payment of money, was obliged to assign breaches in some part of his proceedings ; but contended, that he was not compelled to assign them in the declaration; that they might be assigned, in the replication, or suggested on the roll, as circumstances required,~ahd that the usual practice, from the passing of the statutes 8 and 9 W. III., until the present hour, had been to declare, as was done in this case, for the penalty * of the bond, and'cited 1 Saund. 58, note 1; Ib. 51; 2 Ib. 84; 1 Chit. Pl. 556 ; 1 Wils. 123; 8 Term Rep. 255 ; Ib. 459; 2 N. Y. Term Rep. 320.
    
      Vanarsdale, in reply.
    This statute was meant to be mutually beneficial to plaintiff and defendant, but in order to give the defendant the benefit of it, the demurrer ought to be allowed, and the plaintiff compelled to assign his breaches in the declaration,Ultherwise the defendant__w_ould “Re compelled to~plead in~the dark]-and to answer breaches, of the nature of which he was entirely ignorant. The cirefimstances of this case shewed the propriety of compelling the plaintiffs to assign breaches in their declaration. The defendant was a surety for the cashier of a bank, and was prosecuted for the misconduct of the cashier. He knew not what breach of the condition of the bond would be assigned; if he should plead performance, and the plaintiffs should reply and set out any one breach, he could not then plead a release, accord and satisfaction, or payment, for they admit a breach; he could plead nothing but performance; if he did, it -would be a departure from his plea. Hor could he plead a double plea, for the statute allowing double pleas does not extend to replications or rejoinders. 1 Chit. 549 ; Rev. Laws 4.U3-4; 1 Salk. 138; 2 Pen. 628. That in none of the cases cited by the defendant’s counsel had there been a demurrer to the' declaration for want of breaches; 'that in those cases the defendants had waived their right to have breaches assigned in the declaration, by pleading to it without demurring; but that the demurrer in this case brought the question fairly before the court, and they might decide it upon principle, unshackled by authority; that it was a case primee impressionis in this state, and that they had a fair opportunity of giving such a construction to this act as would make it mutually beneficial to each party, and he therefore hoped they would support the demurrer.
   Per Curiam.

Let the demurrer be overruled.  