
    JOHN COCKE vs. DAVID STEWART.
    
      Rogersville
    
    
      May 1814
    Appeal in the nature of a writ of error.
    An action will not lie, for one of several instalments—secured by bill single until the last instalment shall be payable ; aliter of instalments due by bond with a penalty.
   White J.

delivered the following opinion of the court.

By the record it appears that Cocke instituted an action of debt and declared upon the penalty of the bond. The defendant craved oyer and set out the condition, by which it appeared that the defendant was to be exonerated from the penalty by paying a given sum on the day 181 and another sum twelve months, thereafter. The defendant then pleaded, that the plaintiff ought not to maintain his action, because his suit was commenced before the day limited by the condition, for the payment of the last instalment. To this plea the plaintiff demurred ; the circuit court overruled the demurrer, and gave judgment for Stuart, from which the plaintiff appealed—and here the question made is, whether suit could be brought upon the defendant failing to pay the first instalment mentioned in the condition.

It seems to this court, that the law upon this point is so clear, that there cannot well be more than one opinion. If a person is bound by bill single, to pay a sum of money by instalments, suit will not lie until the last instalment is due, because the contract is entire, on which more than one suit, ought not to be commenced. But it a person is bound by a bond, with a penalty, conditioned to be discharged by the payment of several sums at different times—then a suit will lie immediately after the time fixed for the payment of any one instalment has elapsed; although the other sums may not still be due, The reason why this can be done, is, because, upon the failure to pay any instalment mentioned in the condition, the penalty is forfeited ; and the obligee has a right to sue upon, and recover the penalty itself : but his judgment is to be satisfied by the penalty of the instalment, due, when suit was commenced, and the other instalments when they may afterwards become due ; and if the defendant does not pay the subsequent instalments, the plaintiff can sue out a sci fa. and by that means entitle himself to execution, for the different sums as they respectively fall due. 3 Bac. Ab. tit. Ob. let. F. 1 Litw. N. P. 557. In cases of bonds with condition, the penalty only is the words of the obligor, and the condition is the words of the obligee. The substance of this whole contract is, that Stuart obliges himself to pay Cocke the sum mentioned in the penalty—and this payment is to be made presently. Cocke, on his part, promises that he will not exact the penalty if Stuart will pay him a given sum at one time, and a like sum one year afterwards. Now the moment Stuart suffers the period appointed for the first payment to expire without making that payment, he has no promise of farther indulgence from Cocke, who can immediately sue for the penalty if he thinks proper.

The judgment of the circuit court must be reversed, and the demurrer to this plea sustained, and as there are other pleas which must be tried by a jury, the cause must be remanded.

Perhaps there may be other objections to the plea we have noticed—it is useless now to examine them, it may not, however, be amiss to mention, it seems strange matter for a plea in bar.  