
    Gale and Stanley against O’Brian.
    A declaration-on a bond, eouditi°ned for the performance of cove”a»ts. commenemgmdebt, t^Zi^";reSche?,ani co“enadnt.s aand damage???1« speciáiSdemu°r-
    Bu it is certainly good on a general demurer. Vide 12 Johns. Rep. 216. S. C.
    
    THIS was an action on a bond in the penalty of 1,000 dol- - r J 7 jars, conditioned for the performance of a.covenant therein con- , 7 * iained. The declaration commenced by demanding 1,000 J © 5 dollars, which the defendant owed to, and unjustly detained from, the plaintiffs: it then set forth the penalty of the bond, with the condition, in which the defendant’s, covenant was contained; and, having assigned breaches of- the covenant, con-•eluded thus: “ Therefore, the said Thomas O7 Brian, his covenant with the said James Gale and Ashbel Stanley hath not kept, i although often requested so to do, but hath broken the same ; wherefore the said James Gale and Ashbel Stanley say they are injured, and have sustained damages to the value of 1,000 dollars, and thereof they bring suit,” &c.
    
    To this declaration there was a general demurrer and joinder In demurrer. The cause was submitted to the court without argument, at a former .term, (May, 1815, 12 Johns. Rep. 216.,) and judgment was given for the plaintiff.
    By consent of parties, the cause was again brought before the court, and argued by Cantine, in support of the demurrer, and Powers, for the plaintiff.
    
      Cantine
    
    contended, that the judgment ought to be in debt, but no judgment in debt could be given on this declaration: It must be in covenant, and this is a good ground for a general demurrer. The attorney of the plaintiff, in drawing the declaration, appears to have followed the precedent in 2 Chitty on Pleadings, 154., except the conclusion, which, in that precedent, is in debt instead of covenant.
    This is a misjoinder, which renders the declaration bad in substance.
    
    
      Powers, contra.
    The court (12 Johns. Rep. 216.) have already decided the very point. The objection is matter of form, and can only be taken advantage of, if at all, by a special demurrer. By the 7th section of the act for the amendment c;f the law, the court, in cases of demurrer, are required to.-give judgment according to the right of the matter, without regard to form, unless the particular defect be shown, specially, as the cause of demurrer.
    i Sergeant Williams, in his note (5) to 2 Saunders, 190., says, expressly, that-a wrong-conclusion to a declaration is nqt'matter of substance, but mere, form, and must be specially shown . for cause of demurrer. ; The declaráfion is in the: form reéOnrmerided by Williams, in his note (1) to 1 Sound. 68.; it sets forthhhe bond and-the Condition, and .then assigns i'he breaches, concluding in CQvenant. If the concksfon be-Wroiig:, itis like ° 0/ a title defeetivély set fpEth, wliich is /orily a fault-in form.
    
    
      Coniine, in reply*
    'Sergeant William's, in his-note to 2 Saicnd, 187.-c.y corrects his mistake, .in’the'note referred to iri 1. Sound. 58., in saying that the declaration might conclude as in covenant; and the court, in -giving judgment on the demurrer, in this cause', in 1,2 Johns. Rep. 216., did not advert to tins correction, but relied on the authority of Williams-, in his first note. ’•
    
      
       1 Chitty's Pl. 206 2 Bos. & Pull. 424.
    
    
      
      
         1 N. R. L. 120.
    
    
      
       Hob 233. 6 Johns. Rep. 67.
    
    
      
       1 Tidd's Pr. 647.
    
   Per Curiam.

This case -has now been argued, and we find no reasons to- induce a change of opinion from'that formerly-given," when. the cqse- vhs-submitted without,argument. (12 Johns. Rep. 216.) . The court did not theh advert to the second nóte to-2 Sound. 187.; in that note 'Mr.: -Williams corrects, what he had said in his note to \ Sound. 58. ; and he seems to. think, that the conclusion of the declaration in covenant, after-an assignment-of. breaches, is. incorrect. - -We-agree'that it is' not a neat technical conclusion-; but it ¡dtíés' hot■ follow-that-' If furnishes a-cause óf-demurrer. - Nothing shóft- of a Special de-, inurrer can reach the supposed imperfection in the conclusion of the declaration; for, certainly, it is not matter of substance ; and, we think, even a special demurrer would not avail. '

The declaration’ is in debt. It demands the penalty of 'the bond in the debet et detinet, and it sets out thé bond truly; and,, after setting forth the condition, it avers a breach of the covenants. ' Legally and-technically speaking, the stipulations’in the condition are covenants, on which an action of covenant •might have -been brought; but calling those stipulations cove-' nants did not render the action ’an. action of covenant.;, its quality had been fixed before, by demanding the penalty as a newyork, debt, in the usual way.

Judgment for the plaintiff.  