
    Henderson, &c. v. Hepburn, &c.
    [April Term, 1800.]
    Bond — Collateral Condition — Action in Name of As-signee. — An action, in the name of the assignee of a bond with a collateral condition dated in 1774, is not maintainable.
    Same — Same.—What a bond with a collateral condition.
    Hepburn and Dundas assignees of May-nadeer administrator, &c. of Murray brought debt against Henderson & others executors of Kirkpatrick, upon a bond with a collateral condition,' given by Kirkpatrick, June 9th 1774, to Murray. The condition of the bond was as follows, “Whereas the above bound Thomas Kirkpatrick hath this day by indentures of lease and release, bearing date the eighth and ninth days of this instant June, bargained and sold a tract of land, situate in the county of Pair-fax aforesaid, supposed to contain nine hundred and forty six acres, to the above named James Murray, for the sum of one thousand pounds, Virginia currency: And whereas it is doubted whether some older patents and tracts of land do not interfere *with the said land so bargained and sold and take part of it away; and it is proposed, that the same shall be surveyed and plotted, to ascertain the true number of acres contained in the said land, free, clear and exclusive of all and every other elder patents and surveys, and that there shall be a proportionable deduction and abatement, from the said sum of one thousand pounds, for such quantity of the said land as may appear to be wanting and deficient after making such survey and plott, occasioned by any older patents and surveys, or otherwise. Now the condition of the above obligation is such, that if the above bound Thomas Kirkpatrick shall cause the said land to be accuratelj' surveyed on or before the fifteenth day of November next ensuing, at the joint and common expense and charge of the said Thomas and the said James Murray, and shall, in case any deficiency shall appear to be in the said quantity of nine hundred and forty six acres after such survey, allow an abatement and deduction for such deficiency from the said sum of one thousand pounds, according to the proportion that the said sum of one thousand pounds bears and hath to nine hundred and forty six acres; or in case that the said sum of one thousand pounds shall be paid before the said deficiency shall be ascertained, if the said Thomas shall repay and refund to the said James Murray, his heirs or assigns such sum as he or they may and shall be entitled to for such deficiency according to the proportion aforesaid. That then and in such case the above obligation shall be void, otherwise that it shall be and remain in full force and virtue.”
    The plaintiffs assigned for breaches of the condition, “That neither the testator of the defendants in his life-time nor the said defendants since his death have refunded to the said James Murray or any person claiming under ■ the said *James Murray, or the said plaintiffs for the . deficiency of the land mentioned in the condition of the bond, so much money as they were entitled to receive for the deficiency aforesaid, according to the proportions mentioned in the said bond.”
    The defendant plead conditions performed; and the plaintiff took issue. The jury found a verdict for the plaintiff for ¿269. 4. 6. damages; and the defendant moved to arrest the judgment for the following reasons. 1. Because the bond in the declaration mentioned was not assignable. 2. Because the plaintiff, in assigning breaches, did not state there was any or what deficiency in the land, occasioned by the interference of older patents or surveys; or the sum to which the plaintiff was entitled on account thereof.
    There are amongst the papers copied into the record, a copy of a survey made in pursuance of an order of the court, whereby the true quantity of the land appears to be 820 acres. The notice of making the said survey is accepted by Wilson who states himself to be attorney for the executors.
    The District Court gave judgment for the plaintiff; and the defendants appealed to this court.
    Call for the appellant.
    The bond, being dated in 1774, was not assignable, Craig v. Craig in this Court; and perhaps the plaintiffs have no title for another reason, namely, that the assignment is made by the - executors when the bond belonged to the heir, Eppes v. Demovilte in this Court. The condition of the bond is in the alternative ; that is to say, that, if the purchase money is paid before the survey, then the obligor will refund; but if not, then that he will rebate in proportion to the deficiency. Now it does not* appear, from the manner in which the breaches are assigned, ^whether there ever was any rebatement or not; and consequently the assignment is in the nature of a negative pregnant; for although no money had been refunded, yet it might have been rebated. Which argument is the stronger, when it is recollected, that it is not stated, whether the purchase money was ever paid or not; and if it never was, then the plaintiffs claim, at most, was only for a rebatement, and not for repayment. In which case, he would not have stated a title to recover. But, at any rate, the omission to state the quantity of land, in which the tract was deficient, is fatal; for that was necessary in order to apprize the defendants with what they were charged, so that they might come prepared to defend themselves. Chichester v. Vass and Cabell v. Hardwicke in this Court: which last case was a decision in the very point.
    Wickham contra.
    Craig v. Craig is not applicable to this case; because that was the case of a bond for the title, and not a bond for payment of money as this is; for the repayment was to bear an exact proportion to the deficiency. Now that is certain which may be rendered certain; and this was capable of being reduced to certainty, by mathematics and arithmetic. Taking it then, as a money bond, and the case is clear; because the act of Assembly, passed in the year 1748 ch. 27, is express that bonds for payment of money or tobacco may be assigned, old edition Virginia laws 249. The case of Eppes v. Demoville, was a bond for title; and therefore no argument can be derived from it in favour of the appellants. Besides that case turned on the form of the action. The defendants cannot except to the assignment of breaches, after the plea of conditions performed and issue on it, with a verdict in favour of the plaintiff; because the plaintiff *must have proved a deficiency upon the trial, or he could not have obtained a verdict. Cabell v. Hardwicke turned on the omission to state for whose benefit the suit was brought; and therefore is not like this case. In Call v. Ruffi the breaches were as imperfectly stated as in this case; but yet the Court thought them sufficient after verdict. The judgment in this case, will be a perpetual bar to all future actions on the same bond. Besides the defendants consented to a survey; and thereby have agreed, that what was dubious before, should be reduced to certainty. This is an action of debt which is less strict than covenant; and therefore there was less necessity to be particular in assigning the breaches.
    Call in reply.
    Independent of the decision in Craig v. Craig, it is a general principle of the common law that no paper given for a contingent or uncertain demand is assignable. Thus a bill of exchange, or a note for payment of money is not negotiable, if the payment depends upon a contingency. This was clearly a bond with a collateral condition; for first, it was to be ascertained, whether there were any older or interfering titles, and then, what deficiency they produced, before the plaintiff was entitled either to a rebatement or to have any thing refunded to him. Therefore, in order to maintain the action, it was essential to state in the declaration, either that there had been a survey and deficiency ascertained, notwithstanding which the testator and his executors refused to rebate or refund, as the case might be, or else that the testator had failed to have the survey made, within the stipulated period; in which latter case, the damage would have been the loss of the rebatement or refunding, which had not been ascertained for want of the survey. The case of Cabell v. Hardwicke did not turn, merely upon the omission to insert the name of the person for whose benefit the suit was brought, but *the insufficiency in the assignment of breaches was also one of the grounds, expressly, on which the Court proceeded. The plea of conditions performed, makes no difference; for that was the plea in Cabell v. Hardwicke; and yet it was not thought sufficient to maintain the declaration. The order for the survey, stated in the record to be made by consent, does not assist the plaintiff; because it forms no part of the pleadings; and it is not asserted, on the record, that the object was to supply the defects in the prior proceedings.
    Wickham. Bonds are assignable, under the act of Assembly, in some cases where bills of exchange are not; and it never has been admitted in any case, that with respect to negotiability there was any great similitude between bonds and bills.
    Call and Botts. If that argument be correct, then every manner of bond is assignable ; because money or tobacco is recoverable on all bonds.
    Cur. adv. vult.
    
      
      Tke principal case is cited in Metcalfe v. Battaile, Gilmer 194.
    
    
      
      1 Gall’s Rep. p. 483.
    
    
      
      Ante 22.
    
    
      
      1 Gall’s Rep. p. 83.
    
    
      
      1 Call’s Rep. p. 345.
    
    
      
      1 Call’s Rep. p. 333.
    
   LYONS, Judge.

Delivered the resolution of the Court, that the bond was clearly a bond with a collateral condition, and therefore not assignable within the act of 1748. Consequently that the judgment of the District Court was to be reversed; and judgment on the verdict arrested.

Judgment Reversed.

N. B. Judge Roane was confined to his room by indisposition, upon the day on which the Court gave judgment; and therefore was not present when the resolution of the Court was given, but he has favored me with a copy of the notes of the argument he intended to have delivered, which were as follows.

“The first and principal question, in this case, is, whether the bond, declared upon, is such a *bond, as under the act of Assembly will authorize an assignee thereof to bring suit upon it, in his own name? .

The bond is dated on the 4th of June 1774, and assigned the 17th of November 1791. It will therefore be governed by the act of October 1786 Chap. 29; and in the new code the clause of the act now in question is, as follows, “Assignments of bonds, bills and promissory notes and other writings obligatory for payment of money or tobacco shall be valid &c.” So that the question is, •whether the bond, before us, is a bond for the payment of money within the meaning of this clause? and this question may be elucidated, if not resolved, by considering what bonds are considered as bonds for the payment of money, in other and clearer passages in our laws?

By the act of 1748, re-enacted in 1792 Rev. Cod. 118, it is enacted that in actions which shall be brought on a bond or bonds for the payment of money, judgment is to be entered for the principal sum due thereon and interest. The bonds, here intended, are clearly such as if not single bonds are to be defeazanced by the payment of a lesser ascertained sum, called the principal, and which no assessment by a jury is necessary to calculate and render certain; bonds, which when declared on, do not require particular breaches to be assigned; and in which a recovery is had, as of the debt due by the bond, and not as of damages to be ascertained by a jury.

Such is clearly the nature of a bond, for the payment of money, in the clause just referred to; and if, in the clause immediately in question, the same words are found, as descriptive of assignable bonds, the former clause may be resorted to, as a key for the understanding thereof.

But, by the same clause of the act of 1792, in actions on bonds, for performance of covenants, particular breaches must be assigned; and a jury *are to assess, and the court to give judgment, for damages, instead of any lesser ascertained sum in the condition. >

The distinguishing criterion then, between these two descriptions of bonds, is plainly marked out b3r the act of 1792. That criterion existed in our laws, before the period in which it was transferred into the new code, from the acts of 1748; and must be supposed to have been in the mind of the Legislature, when it enacted the cause allowing assignments.

By that criterion, whenever a bond appears, with a smaller specific sum, mentioned in the defeazance, or the bond shall be single ; whenever judgment is to be given for that sum with interest, and not for damages to be ascertained by a jur3r; and whenever particular breaches-are not necessary to be assigned, a bond of this description is a bond for the payment of money, within the meaning of the clause in question. But if there be no, ascertained principal sum, for which judgment can be rendered; if the intervention of a jury be necessary to ascertain what is due by way of damages; and if the defendant must be notified, by a particular assignment of breaches, wherefore the action is brought against him, such a bond is not to be considered as a bond for the payment of money,' under the act in question.

To test the bond, before us, by this criterion. It is a bond to b.e defeazanced, if the obligor shall survey the land by a certain time, and refund or abate money, as the case may be, if the obligee should be found to be injured by the interference of older surveys. It is a bond whereby the obligor covenants, both to survey, by a certain time, and to make good the deficiency, if any. The obligee has his action against him for the failure of one or the other; and this observation, it is supposed, is decisive of its not being a bond, for the payment of money, only. It is a bond neither *single, nor to be de-feazanced by the payment of a lesser certain sum, called the principal; a bond, in which, a particular assignment of breaches is absolutely necessary; and, as to which, no judgment can be given, without the intervention of a jury, ascertaining the damages sustained, by the obligee.

Is this bond, therefore, to be considered, as a bond for payment of money, in the face of those prominent distinctions, which I have just mentioned?

It is said to be such a bond, because money is to be paid, in the event of a deficiency of the land; and that mathematics and arithmetic may render the sum to be paid absolutely certain. But my answer is, that this differs from the common case of a general covenant to make good a deficiency, only in this, that here the parties, by previous agreement, have given a rule to the jury in assessing damages if any; but that, exception in this particular, the case is the common case of a bond, for the performance of covenants, in every respect. The only difference is, that here an arbitrary assessment of damages is prevented, by the consent of the parties, and the general power of juries, in respect to damages, is in this instance abridged; as' it was in the case of Lowe v. Peers, 4 Burr. 2229. Where it was agreed by Peers, that if he did ' not marry Lowe, that he would pay her £1000. And it was held that the jury, in ascertaining damages, would be confined to the £1000. as the precise sum fixed and ascertained, by the parties.

Mr. Wickham likens the case, to that of a bond conditioned to pay .£1000, but attended with an agreement, that it shall be liable to be affected, by the real estate of the accounts, between the two parties. To which I answer, that there is no similitude between the cases: for such a bond, as that, would fall, strictly, within the description *of bonds, for payment of money, as to the manner of declaring and the nature of the judgment to be given. Although, in consequence of the agreement entered into, it may happen, that nothing may be really due them.

Upon the whole, I am clearly of opinion; that the present is not an assignable bond, within the meaning of the act of Assembly.

This view of the case precludes the necessity of my considering the legality of the assignment of breaches; although my present opinion is, that thej' are insufficiently assigned.  