
    *Hammitt v. Bullett’s Executors.
    [Wednesday, April 17, 1799.]
    Bonds — How Declared on — Queere.—If a specialty he for payment of money, with interest, how plaintiff should declare?
    Pleadings — Errors—When Objection Not Allowed.— Defendant shall not he received to ohj ect to errors in pleadings which are for his benefit.
    Bonds — Conditions Performed — Effect.—Plea of conditions performed, to an action of debt for money, equivalent to plea of payment.
    The declaration in this case was as follows: “Thomas Harrison and Thomas Bullett, acting executors of the last will and testament of Cuthbert Bullett, deceased, complain of John Hammitt, that he render unto them the sum of one hundred and twenty pounds, specie, which from them he unjustly detains; for that the said defendant, on the 15th of October, in the year of our Ford 1788, at the county aforesaid, by his certain writing obligatory here to the Court shewn, sealed with his seal, and dated the day and year aforesaid, agreed, in consideration of a lot of land in the town of Newport, known and distinguished by number thirteen, together with the improvements on the same, to pay the said Cuthbert 1251. specie, on or before the first day of April then next ensuing the date of the said obligation, with interest thereon from the first day of January then next ensuing the date of the said obligation. Nevertheless, the said dfefendant, though often requested, did not pay to the said Cuthbert, in his life-time, the aforesaid sum of money, or any part thereof, but the same to pay refused, and still refuses to pay the same to the plaintiffs, to the damage of the plaintiffs 2001., and therefore they bring suit, &c.” Plea, conditions performed; and the plaintiff took issue. The suit was then referred; and afterwards, at a subsequent Court, the record proceeds thus: “October, 1795, - order reference set aside and continued.” On the trial of the issue, the defendant filed a bill of exceptions to the Court’s opinion, which stated, that the plaintiffs offered in evidence to the jury an agreement in these words: “Agreement between Mr. John Hammitt and Cuthbert Bullett: Cuthbert Bullett sells Mr. Ham-mitt lot number thirteen, in the town of Newport, with the improvements, 568 "'for one hundred and twenty-five pounds, specie, payable with interest ■from the first day of January, on the first day- of next April, and rents him both his ferries during the said Bullett’s life, at fifteen pounds, specie, per annum, for the first four years, and after, during the remainder of the term, at the annual rent of twenty-five pounds per annum; the said Bullett is to have and retain the rent for the present year. Witness their hands and seals, this 15th day of October, 1788.
    John Hammitt. (Seal.)
    Cuthbert Bullett. (Seal.)
    Teste.
    William Davis.
    Burwell Bullett.”
    That the defendant objected to the same going in evidence to the jury, as being variant from the writing declared on; but that the objection was over-ruled by the Court, who permitted the said writing to go in evidence to the jury.
    Verdict that the defendant hath not performed the conditions in the declaration mentioned, as the plaintiffs by replying have alleged, and assessed the damages to ■611. 5s. 9d. Judgment for the plaintiff tor 1251. specie, the debt in the declaration mentioned, together with the damages aforesaid, and costs. ^
    Botts, for the petitioner.
    The plaintiff should have demanded interest in his declaration upon the 1251., as it appears by the record that it was due; and for want of it, there is a variance between the evidence and the declaration. The breach laid is, that the defendant had not paid the aforesaid sum of money; without distinguishing, whether it was the 1251. only, or that sum with interest: and, therefore, the declaration in that respect is uncertain. The issue is taken on a plea of conditions performed, . and the verdict is, that the plaintiff had not performed the conditions in the plaintiff’s declaration mentioned ; which is senseless and immaterial, as there was nothing like a condition stated in the declaration ; but, a charge .569 founded on a positive ^stipulation; and therefore, the issue being immaterial, the judgment is erroneous. The order ■of reference appears to have been set aside, upon the motion of the plaintiff merely, and without any consent thereto obtained from •the defendant; although no reason for this extraordinary interference appears on the record. This was an assumption of power which did not belong to the Court, who ought to have suffered the order of reference to stand until it was acted on; unless the parties had consented to rescind it, or ■some other proper cause had been shewn for their interposition. But, there is a further variance between the writing produced and that declared on : For, the declaration is, that the defendant would pay, on or before the 1st day of April, whereas the agreement produced was, that the money was payable with interest from the first day of January on the first day of next April. Besides, the writing contains other stipulations, of which no notice is taken in the declaration ; and, therefore it does not necessarily appear to be the same, on which the suit is brought. The judgment varies from the verdict; for, the latter finds damages only: whereas, the judgment is for the 1251. and the damages also.
    
      
      Pleadings — Errors—When Objection Not Allowed.— The defendant will not he allowed to ohj ect to errors in pleading which are for his benefit. This proposi- | tion of the principal case is cited and approved in Long v. Campbell, 37 W. Va. 673, 17 S. E. Rep. 199; Kirtley v. Deck, 3 Hen. & M. 393; Steger v. Eggleston, 5 Call 457. See also, Smith v. Harmanson, 1 Wash. 6.
    
    
      
      Bonds. — See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   PENDLETON, President.

Delivered the resolution of the Court to the following ■effect:

The plaintiff’s counsel seems to have thought, that as there was no penalty to cover the interest, it could not be recovered under the act of Assembty, although the interest was promised; but, could only be given in damages; and so declares for the •debt, and lays his damages for nonpayment. Whether he was mistaken or not, is doubtful ; though the practice is, to claim and recover the interest with the principal. Yet, since the defendant is not injured, but benefited by the alteration, he has no right to complain of it as an error, if it be one.

Conditions performed, to a specialty for pas^ment of mone3r, amounts to the general issue of payment.

Supersedeas denied.  