
    James Freeland versus Oliver Ruggles and Silas Pepoon.
    To an action of debt on a review bond, the condition of which was that the judgment debtors should pay such sum as the judgment creditors, might recover on the review; the defendants, after oyer of the bond and condition, plead in bar, that they have performed all things on their part to be performed: the Court held the plea to be bad, and gave judgment for the plaintiff.
    Debt on bond. Oyer was had of the bond and of the condition, which last recites that, at the then preceding term of this Court for this county, upon the petition of the said Oliver Ruggles and one Charles Loveland for a new trial, in an action wherein the said .Tames was plaintiff, and the said Oliver and Charles were defendants, and in which the said James had recovered against the said Oliver and Charles the sum of 1230 dollars 33 cents damages, and 47 dollars 56 cents costs of suit, it was ordered by the said Court, upon the said petition, that a writ of review should issue in the said action, provided the petitioners give bond with surety to the said James, conditioned for the payment of the debt which the said James might recover on the trial of the said review, and also pay the costs taxed in the former suit; and three months were allowed for the performance of the condition of the said order of Court. “ Now, therefore, if the said Oliver and Charles shall pay to the said James such sum as the said James may recover in damages and costs, in the final trial and judgment and the action of review which the said Oliver and Charles may prosecute against the said James, then the foregoing obligation shall be void; otherwise to remain in full force.”
    * Whereupon the defendants plead in bar, that from [ * 512 ] the time of making the said writing obligatory hitherto, they have well and faithfully observed, performed, and fulfilled all and every thing in the said condition mentioned, on their part to be performed, observed, and fulfilled, according to the form and effect of the said condition; and this, &c.; wherefore, &c.
    The plaintiff replies, (protesting that the defendants have not performed, &c.,) that the said Oliver and Charles .entered their action of review, and that such proceedings were had therein that, at the September term, 1809, of this Court, he recovered judgment against the said Oliver and Charles, for the sum of 1401 dollars 8 cents damages, and 12 dollars 7 cents costs of the same suit, on which judgment execution duly issued and was delivered to a deputy sheriff, who demanded payment of the said Oliver, (the said Charles being out of the county,) who refused payment; of which refusal the said deputy sheriff notified the said Silas; and afterwards returned the execution unsatisfied; “ which said judgment remains in full force, not reversed, annulled, satisfied, or in any way discharged, and which said judgment the said Oliver and Silas were, by the said bond and the condition thereof, bound to pay, satisfy, and discharge; which they and each of them have wholly failed to do and perform. Wherefore he prays judgment,” &c.
    To this replication the defendants demur generally, and the plaintiff joins in demurrer.
    
      Sedgwick, in support of the demurrer,
    contended that no breach of the condition was set forth in the replication. The condition of the bond was that Ruggles and Loveland, the judgment debtors, should pay, &c. The breach assigned is, that Ruggles and Pepoon, the obligors, have not paid.
    As to the averment, that the judgment is not satisfied, which is the only word that has any bearing upon the case, it is too general to take issue upon. The commitment of the judgment debtor to prison in execution is a satisfaction; *so is a [ * 513 ] release. The condition of the bond is, that the judgment debtors shall pay. The defendants were driven to demur. 
    
    It was suggested by Sewall, J., that the plea of omnia performavit was not a sufficient answer to an action of debt on bond, though it was good in an action of covenant.
    
      
      Sedgwick answered,
    that in debt on bond for the performance of covenants, where all the matters to be performed are in the affirmative, it is sufficient to plead performance generally, leaving it to the oilier party to show a breach.  But at any rate the objection is only to the form, and is cured by being replied to.  To this last position Sewall, J., assented.
    Dewey, for the plaintiff.
    The plea is substantially bad. The defendants say that they have performed all that they were obliged to perform; whereas the condition was not for their performance of any thing, but that Ruggles and Loveland should pay, &c. As to the replication, it is sufficient in substance. It avers the judgment to be in full force, and in no way satisfied or discharged. Now, if the judgment debtors had satisfied it, these averments could not be true, and issue might have been taken upon them.
    
      
      
        Cro Eliz. 749, Mints vs. Bethil. — 1 Bos. & Pul. 640, Shum & Al. vs. Farring ton. —2 Burr. 772, Cornwallis vs. Saverv.— 2 Wills. 11, Simmons vs. Langhom.
      
    
    
      
      
        Co. Lit. 303. — Cro. Ehz. 749. —8 D. & E. 459, Barton vs. Webb.
      
    
    
      
       1 Sound. 117, Note 1, by Williams.
      
    
   The opinion of the Court was delivered to the following effect by

Sedgwick, J.

(after stating the pleadings particularly.) It appears by this record that the bond declared on was not made in conformity to the order of the Court. The order of Court was, that the bond to be given, to entitle Ruggles and Loveland to a review, should be made to secure the payment of the judgment then in being. The bond was given to secure the payment of a judgment, which might be rendered on the review. The bond, by the oyer, has become part of the declaration; by which it appears, that, if Ruggles and Loveland should pay the judgment which might be recovered, the bond should be void. The obligors, [ * 514 ] Ruggles and Pepoon, then were bound that * Ruggles and Loveland should pay ; there was therefore nothing for the obligors to perform.

They plead, however, that they have performed all things on their part to be performed. This manifestly is no answer to tfie declaration. It is no affirmation that Ruggles and Loveland had paid ; which, under the circumstances of the case, is the only sufficient answer to the declaration, which the defendants could have made.

In this view of the case, we are all of opinion, that the plea is substantially defective; and the only question is, whether the defect is cured by the replication. The pleadings on both sides are unskilful and inartificial, but neither of the counsel are responsible for this.

The replication sets forth the judgment recovered on the trial of the review; the issuing of an execution on that judgment; its delivery to an officer to collect; his ineffectual application for that purpose to ¡higgles, one of the judgment debtors and one of the defendants; that the other judgment debtor could not be found ; and notice to Pepoon, the other defendant. All this, except the judgment on the review, was wholly immaterial, and mere surplusage.

The replication then goes on to allege, in substance, that the judgment rendered on the review still remains in full force, not annulled, reversed, satisfied, or in any manner discharged. We are all inclined to believe, that this must be considered, under a general demurrer, as containing a substantial allegation that Ruggles and Loveland had not paid the judgment; and that therefore it shows sufficiently a breach of the condition.

But this is not necessary to be determined; as it is very manifest that the replication has no tendency to cure the defects of the plea.

It is consolatory, notwithstanding the badness of the pleadings, to come to a result, by which justice is done, by compelling the defendants to perform their contract.

Replication adjudged good.  