
    YOUNG AND ALS. vs. TURNEY'S EXECUTORS.
    Debt upon a bond conditioned for the conveyance of a tract of land.
    The declaration set out the condition, which was not usual. Plea, payment and issue.
    On the part of the defendant, it was objected that the plaintiffs cannot recover, until they prove a demand and refusal of a deed, agreeably to the first section of the act of 1794, c. 5, which enacts' “ That it shall be lawful for the personal representatives of a deceased person, to make titles where the deceased had given obligations for lands ; but the representative shall not be bound to make a title until the bond is recorded,” with this clause “ nor shall the holder of obligations charge the personal estate of such decedant or decedants, until they shall have produced the obligation duly authenticated, and demand made, and refusal or failure to comply therewith, on the part of such representative or representatives.”
    It was admitted by the defendants counsel, that if the condition of the bond had not been set out, there would not have been any necessity to make this proof, unless the defendant had taken advantage of it by plea; but as the condition was set out in the declaration,and as the act of assembly required proof of a demand before the personal estate could be charged ; this proof ought to be made by the plaintiffs, though no other plea than payment had been offered.
    If in debt on a bond with a condition to convey land brought against the executor the obligor, the plaintiff sets out the condition in his declaration on the plea of payment the plaintiff need not prove a demand.
    Note-The law is with the opinion of judge Humphreys,as will appear by Doug. 668. Vaugh. 8 58. Cro. El. 64. 3 Wils. 277. 8 Co. 120. 1 Com. Dig. Kyd’s Ed. 208 4 Bac. Ab. title statute, L. 3. 12 Mod. 540.
   Humphreys, J.

(to the jury)Such proof as is contended for by the defendants counsel, is not necessary, under the plea of payment.

Overton, J.

was inclined to think, that as the plaintiff had made the condition a part of his declaration, he ought to prove the demand and refusal contemplated by the act.  