
    *Smith’s Adm’r v. Lloyd’s Ex’x.
    January Term, 1862,
    Richmond.
    (Absent, Lee, J.)
    i. Pleading and Practice—Debt on Bond—Excuse for Non-Production of Bond.—In action of debt upon a bond, plaintiff to excuse tlie non-production of the bond, in answer to oyer craved by the defendant, says the bond is filed in another court; that he applied to that court for it, that his application was opposed by the defendant, and was refused by the court. This is a sufficient excuse for not producing the original bond.
    2. Same—Same—Same—Excuse Hay BeOreTenus.—An excuse for not producing the original bond sued on may be ore tenm. . Same—Same—Same—Excuse in Form of Plea.—In this case the excuse is made in the form of a plea, which is demurred to. The demurrer does not authorize the court to decide upon errors in the" declaration.
    4. Same—Demurrer to Plea—Effect on Declaration.—A demurrer to a plea can only operate upon the declaration, as a demurrer to the whole thereof; and if any one count is good, the demurrer as a demurrer to the declaration must be overruled.
    3. Same—Demurrer to Declaration.—In considering a demurrer to a declaration, where oyer is craved of the bond sued upon, the court can only look at the declaration and bond, and if words in the bond without the addition of extraneous facts, are insensible, they will be treated as surplusage.
    
      6. Same—Conditions Precedent—Setting Out the Performance.—The setting out the performance of a condition precedent in the language of the condition is sufficient.
    7, Same—Maturing at Rules—Failure to Give Oyer When Craved.—If the bond or deed sued on is not filed with the declaration, and the defendant appears at rules and craves oyer of it, which the plaintiff does not give, and the defendant will not plead without oyer, the clerk may properly take the rules without regard to the craving of oyer, so that the case may be ready to be disposed of at the next term of the court.
    *This was an action of debt in the circuit court of the county of Alexandria, brought in September 1852, by John L. Pascoe, administrator de bonis non with the will annexed of Joseph Smith deceased, against John Lloyd, and afterwards revived against his executrix, upon the following paper:
    Whereas a suit is now pending in the Circuit court for the county of Alexandria —John Lloyd against the bailiff, Charles Scott, on a writ of replevin, in which Jonathan Schofield claims to have an interest, and the amount in controversy being five thousand dollars, arrearages of rent, interest and costs, I hereby agree, in case I succeed in said suit to the amount in controversy, and hold myself bound to secure satisfactorily, on real estate in the town of Alexandria, (which is to be kept insured by me until the debts are paid), to Joseph Smith the sum of eleven hundred dollars, to William Veitch and Benoni Wheat, lately trading under the firm of William Veitch & Co., the sum of two hundred and fifty dollars, and to Thomas K. Beale and James M. McCrae the sum of nine hundred and fifty dollars, (they being first duly authorized to receive the said amount), in the manner following, to wit: In case of recovery to the full amount as aforesaid, I will secure satisfactorily, to the several parties as hereinbefore mentioned, the sums as stated, bearing an interest of six per cent, per annum, after the 1st of May, 1828, which interest is to be paid annually.
    And I further agree to redeem and pay off to the said parties herein mentioned, or to their heirs or assigns, the sums they are hereby severally entitled to receive, at the expiration of ten years from the time the said suit now depending may be decided, reserving to myself the right and privilege of paying off the said principal debt and all
    the interest that may be due thereon, at any time I may think proper after the date hereof, and fully releasing *the securities herein promised; or in case I should recover a part of the amount in controversy, I hold myself bound to pay to the parties aforesaid, such proportion as the amount recovered may bear to the amount in controversy. And for the faithful performance of which I hereby bind myself, my heirs and executors.
    Witness my hand and seal this the 25th April, 1828.
    John Lloyd. [Seal.]
    The amended declaration contained two counts, in neither of which is there a profert of the paper. The first count after setting out the paper, alleges that the replevin suit referred to in it, had been finally decided more than ten years before the institution of this action, in favor of John Lloyd, for whom a judgment had been rendered for the full amount in controversy in the suit; whereby the said Lloyd became liable to pay to Joseph Smith and the plaintiff as his representative the said sum of eleven hundred dollars with its interest.
    The second count did not set out the paper, but referred to it, and charged that among other things Lloyd thereby bound himself to pay to Smith within ten years after the decision of the case against Scott, the sum of eleven hundred dollars, with legal interest from the 1st of Majr, 1828, until paid, “the plaintiff’s testator being first duly authorized to receive the same.” And it averred that the suit had been finally decided in favor of Lloyd more than ten years before the institution of this action; and that the plaintiff as administrator, &c., of Smith, was duly authorized to receive from Lloyd the said sum of eleven hundred dollars, with interest thereon as aforesaid.
    The defendant demurred to the plaintiff’s declaration, and also craved oyer of the writing obligatory in the declaration mentioned, and of the condition thereof. And the plaintiff joined in the demurrer; and for excuse *for not producing the bond he says—“The plaintiff in answer to the oyer craved by the defendant of the original bond upon which this action is founded, and for reason for not producing it, says that the original bond is now on file in the Circuit court of the United States for the county of Washington, in the District of Columbia; that the plaintiff has applied to the said court, since the institution of this suit, for said original bond; that said application was opposed by the defendant; and that the court therefore refused to deliver to the plaintiff the said original bond; and so it is impossible for the plaintiff to produce said bond after the use of all means in the power of the plaintiff to produce it. And this he is ready to certify. Wherefore he prays judgment, &c.” The defendant demurred to the plaintiff’s excuse; and the court sustained the demurrer; and there was judgment in the action for the defendant. Whereupon the plaintiff applied to a judge of this court for a supersedeas to the judgment; which was awarded.
    E. J. Smith, for the appellant:
    The question presented by the record is as to the sufficiency of the excuse for the non-production of the original of the obligation sued on.
    The requirement of the production of an original paper upon which an action has been brought, as authorized by the technical proceeding of craving oyer, rests on the exercise of an undoubted right, and on the supposition of a real desire, by the defendant, that the paper should be produced, and further, that its inspection is needed, for some substantial grounds of defence.
    To demand oyer (or to hear it read) was complied with (we are told in the books) in the days of oral pleading, by having the paper called for read aloud in open court —since the establishment of written pleading, by delivering a copy of the instrument to the defendant.
    *In this case, after oyer was demanded, the plaintiff, as he states in
    his excuse, applied for the original obligation to the court, where it was deposited, and was there met by the defendant, who opposed said application, and defeated the same, and thereby prevented the plaintiff from obtaining possession of the bond.
    Now, whilst as a general rule the defendant, on a demand for oyer, has a right to require the production of an original paper, yet the exceptions to the requirement are as well established as the rule itself.
    The excuses for not making profert rest on the broad principle that the law requires no man to perform an impossibility.
    Thus, if an obligation has been destroyed by fire or other accident, has been lost, is in the possession of the adverse party, or is deposited in another court, the plaintiff may rely on either of these excuses to justify not making profert.
    Thus, Eord Coke says,—“And if the deed remain in one court, it may be pleaded in another court, without showing forth, quia lex non cogit ad impossibilia.” See 3 Thomas Coke, chap, vi, title pleading, top p. 405, margin 373 ; Wymark’s Case, 5 Coke’s E. 74; Doctor Eeyfield’s Case, 10 Coke’s R. 92. In the last case the principle is laid down, that in cases of necessity the production of an original paper, upon oyer, will be dispensed with. In that case the deed was destroyed by fire.
    The same doctrine is fully recognized in Read v. Brookman, 3 T. R. 151, in which the counsel on both sides concede it to be law, and the court so decide, that when the deed, of which oyer is demanded, has been pleaded, and remains in another court, or -where it is in the possession of the adverse party, that such excuses will be sufficient for not making profert of the original. These, however, are only two of the instances illustrating the principle that in cases of necessity, or where it is impossible *for the plaintiff to make profert of the instrument, the excuse will be sufficient. See 2 Chitty’s Pleading, top p. 148, margin 197. See also Taylor’s adm’x v. Peyton’s adm’x, 1 Wash. 252; Waller’s ex’ors v. Ellis, 2 Munf. 88. See Judge Tucker’s opinion, p. 96, sanctioning the rule as laid down in Read v. Brookman; Anderson v. Barry, 2 J. J. Marsh. R. 265; Moore’s ex’or v. Paul, 2 Bibb’s R. 330; Butler v. State, 5 Gill & John. R. 577.
    Does not this case, then, fall within the principle, as established by these authorities, and is not the excuse pleaded by the plaintiff for not making profert of the bond sued on, amply sufficient?
    The bond is filed in another court; that court is beyond the limits of Virginia; application has been made to it for the bond by the plaintiff, and the court refuses to deliver it. The plaintiff’s attempt to obtain it is resisted by the defendant, thereby defeating the effort. These facts are admitted by the demurrer to the excuse of profert. Is it not then to require the plaintiff to perform an impossibility, by insisting on his producing the bond sued on? and does not such a requirement, under the circumstances, come in direct conflict with the maxim quoted by Eord Coke, “lex non cogit ad impossibilia?”
    Is not this case as strong, to all intents and purposes, as if this bond were in the possession of the defendant? and yet in that case it will hardly be pretended that the excuse would be held to be insufficient.
    Robert E. Scott, for the appellee:
    There are two questions involved in the case. 1st. On the demurrer to the declaration. 2d. On the sufficiency of the excuse for not producing the bond sued upon. But the demurrer to the declaration was not passed upon by the court below, and therefore it only comes up upon the rule that where issue is taken upon a demurrer it goes back to the first error.
    *lst. The agreement shows that it was made with Schofield, and the undertaking is to pay Smith, and the other parties mentioned—“they being first duly authorized to receive the said amount.” This was a condition precedent; and both the counts of the declaration are defective in failing to aver that the plaintiff’s testator was duly authorized to receive the money. There is no averment of the sort in the first count; and the only averment in the second count is that more than ten years has elapsed since the decision of the replevin case, and the plaintiff as administrator, &c., is duly authorized to receive the amount. This is' not an averment that the testator was authorized to receive it. The averment should state how he was authorized. To say simply he was duly authorized involves both law and fact; for due authorization involves law, and the how authorized is therefore necessary to be stated.
    2. At the first blush the excuse for not producing the paper would seem to be pretty full. But it is most carefully worded. There were in fact three suits on the same paper, in the same court, at the sáme time. Our defence was that the paper had never been in their possession; and that they had never executed the releases which was the consideration of the agreement. The paper had been put into the hands of Schofield, and had not been delivered by him; and neither of them was ever duly authorized to demand payment.
    The agreement promises to pay several sums to several parties, and it required all to be authorized to receive the sums, of money specified to be paid to each.
    The court will see how cautiously this excuse is gotten up. The bond was filed in the replevin court; but by whom it does not say. On what grounds the plaintiff asked for the paper is not stated. On what grounds the application was opposed is not stated. On what grounds the application was refused, is not stated. When the ^excuse is considered in connection ■with the paper some light will be thrown on the controversy. The paper says, being first duly authorized to receive the amount. If the paper had averred that the bond was filed by them we should have been satisfied. If they had said that they were entitled to it that would have satisfied us. Then must we not presume that when the motion was made for the delivery of the bond, issue was made up upon that application ; and must we not further presume that it was rightly decided? If there could be a state of facts which would justify the judgment of the court are we not bound to infer that they existed?
    Deeds and other writings are often used on the trial of a case, and are filed among the papers; but this does not deprive the true owner of his property. He may be required to produce them on a trial; but when the case is ended he has a right to recapture them. No court can rightfully withhold them from him. Buller, Nisi Prius, p. 49, 251, 253, says: There being but one law day of a term during the term every party may take advantage of "the deed; but after the term the owner may have it. Even those deeds which become a part of the pleadings, after the term the owner is entitled to them. When a deed is denied, then until that issue is determined the deed is impounded. If determined against the deed it remains impounded forever; but if the issue is found in its favor then the owner is entitled to it. This is in respect to those deeds made part of the record by the pleadings. And there never was any question of the owner’s right, where the deed was merely used as evidence. And to the same effect is 1 Tidd’s Pract. 586, 587, 9 edi. ; 3 Thomas’ Coke 404, 405. It is true that a party may make an excuse for not producing a deed if it is in another court. But it is not enough to say it is among the papers in another court; because they may be there in a thousand ways. But it must be in ^another court in a manner to preclude the party from obtaining possession of it. Then in pleading this-excuse the plaintiff must go further than merely to say it was filed in the papers. It is clear this bond was not a part of the pleadings; for it recites the pendency of that suit. The excuse should have gone further and showed how it remained there.
    The counsel for the appellant has referred to several cases. They only show that a party may be excused from making profert in a proper case, and will be allowed to proceed in such a case without it. Our statute dispensing with profert, protects-the interest of the defendant; and the plaintiff is still bound to produce the deed if it is in his power. In considering his power must you not consider his right to it? and should he not be required to aver his light to it?
    The cases cited on the other side are in conformity with the views I have presented. Thejr say that the deed should have been so pleaded as to have become a part of the record, or be bonds of such kind as would render them a part of the record, and which it would be improper to withdraw; as statute bonds, bonds given in the cause, and the like.
    
      
       Pleading and Practice—Proferí Excused.—In Simmons v. Trumbo, 9 W. Va. 362, it cwas said: “The court properly refused to grant the defendant oyer of the bonds, the excuse for not making profert of them, alleged in the declaration, that they were in the defendant’s possession, being a sufficient excuse. Smith’s Adm’r v. Lloyd’s Ex’or, 16 Gratt. 295.”
      Same—Statute—Effect on Special Demurrer.—The several subsequent cases cite the principal case as authority for the proposition that the effect of the enactment of section 31, ch. 171 of Code of 1849 (Code 1887, § 3272),was to abolish special demurrers. Norfolk, etc., R.Co.v. Ampey, 93 Va. 123, 25 S.E. Rep. p. 226; Coyle v. B. & O. R. Co., 11 W. Va. 107; Kern v. Zeigler, 13 W. Va. 715; Reynolds v. Hurst, 18 W. Va. 651; Spiker v. Bohrer, 37 W. Va. 261, 16 S. E. Rep. 576; Cook v. Dorsey, 38 W. Va. 200, 18 S. E. Rep. 470.
    
   MONCURE, J.,

delivered the opinion of the court.

The principal question to be decided in this case is, as to the sufficiency of the excuse for not giving oyer of the writing obligatory on which the action is founded. The declaration, or rather the amended declaration which is regarded as the commencement of the pleadings in the case, made no profert, but the defendant craved oyer, of the said writing obligatory; according to the provision in the Code, chap. 171, sec. 9, which makes it unnecessary in any action to make profert of any deed, but declares that a defendant majr have oyer in like manner as if profert were made. The excuse for not giving oyer is in these words :

*“The plaintiff, in answer to the oyer craved by defendant of the original bond upon which this action is founded, and for reason for not producing it says that the original bond is now on file in the ‘Circuit court of the United States for the county of Washington in the District of Columbia; that he the plaintiff has applied to the said court, since the institution of this suit, for said original bond; that said ■application was opposed by the defendant; and that the court therefore refused to deliver to the plaintiff said original bond; ■and so it is impossible for the plaintiff to produce said bond, after the use of all means in the power of plaintiff to produce it. And this he is ready to verify. Wherefore he prays judgment, &c.”

To this excuse there was a demurrer which the court sustained, and the plaintiff waiving the leave granted him to plead any further excuse, judgment was rendered for the defendant.

It was a general rule of the common law that where a party in pleading claimed or justified under a deed and was presumed to have it in his possession, he was bound to make profert of it, or a sufficient excuse for not doing so. 1 Chit. pi. 365. The rule had its origin in the solemnity attending the execution of deeds, and the dignity formerly attached to such instruments. One reason assigned for the rule was, that the court might be enabled by inspection to judge of the sufficiency of the deed. Another was, to enable the adverse party to have oyer of it and better make his answer or defence. Stephens in his work on pleadings, p. 441, assigns a different one from these, which, as he says, have long since become obsolete though in practice profert was still continued to be made.

Whatever may have been the origin or reason of the rule, it had long been considered in England as matter of form and not of substance, the statute 4 Anne, c. 16 ^having expressly declared that the omission of profert should be ground only of special demurrer, 1 Chit, pi. 641; until, at length in 1852, it was altogether abolished by 15 and 16 Viet. c. 76, $ 55, which provides that “it shall not be necessary to make profert of any deed or other document mentioned or relied on in any pleading; and if profert shall be made it shall not entitle the opposite party to crave oyer of, or set out upon oyer, such deed or other document. ” 3 Rob. Prac. 507. Our Code, enacted a few years before, did not go so far; but only dispensed with the necessity of making profert, while it retained the right of craving oyer in like manner, as if profert were made.

So that now, when a party craves oyer of a deed under which his adversary claims or justifies, the latter must produce it, or give a sufficient excuse for not doing so; and the question as to the sufficiency of the excuse for not giving oyer is precisely the same as was the question formerly as to the sufficiency of the excuse for not making profert. The question to be considered in this case therefore is, whether the excuse made for not giving oyer is sufficient according to the settled principles of law in regard to profert.

An excuse which, from a very early period was allowed as sufficient was, when the deed had been pleaded and remained in another court. A deed was supposed to remain in court during all the term at which it was pleaded, but no longer; unless the opposite party during that term plead in denial of it; in which case it was supposed to remain in court till the action was determined. Steph. 88. Another excuse allowed from a very early period was, when the deed was in the hands of the adverse party, or had been destroyed by him. It was at one time doubted whether the loss of a deed was a good excuse for not making profert; and the jurisdiction of equity in such cases is founded on the idea which ^formerly existed that there was no remedy at law. But in Read v. Brookman, 3 T. R. 151, it was held by the court of King’s Bench that it was a sufficient excuse for not making profert of a deed that it was “lost and destroyed by time and accident.” This is a leading case on the subject, and placed it on the true ground, which is that the law compels no one to do an impossibility. Indeed Lord Coke had placed it on the same’ ground in assigning as a reason why a deed remaining in one court may be pleaded in another, without shewing forth, quia lex non cogit ad impossibilia. Where-ever therefore a partjr cannot produce a deed, at least unless his inability proceed from his own wilful act, he is not bound to give oyer of it. We regard this as a true test, though we do not mean to say it is the only one.

Let us apply this plain and simple test to the present case, and see whether according to it the excuse here given is sufficient. The formula of stating the excuse in the approved precedents of pleading is very general; as, that the deed has been lost or destroyed by accident; or, that it is in the possession of the defendant, &c. ; and that therefore, the plaintiff cannot produce the same to the court. 1 Chit. Pl. 349; 2 Id. 439; Steph. 441. In this case the excuse is stated very fully and formally, and the substance of it is; that the original bond on which the action was brought was then on file in the Circuit court of the United States for the county of Washington in the District of Columbia; that the plaintiff had applied to the said court since the institution of this for said bond; that said application was opposed by the defendant; and the court therefore refused to deliver the bond to the plaintiff; and so it was impossible for the plaintiff to produce it after the use of all the means in his power to do so. This excuse comes fully up to the requisition of the test before stated, and not only shows an impossibility on the part *of the plaintiff to produce the deed, but that such impossibility has been occasioned by the act of the defendant himself, who, by demurring to the excuse, admits the truth of it. We are therefore of opinion that the excuse is sufficient.

It is not necessary for the excuse to show that the part}1- making it is entitled to the custody of the deed, but on the contrary that he is not so entitled, or is otherwise unable to produce the deed. Nor is it necessary for the excuse to show that the plaintiff is entitled to recover the money mentioned in the deed and claimed in the action. The right to such recovery must be tried under the general issue or some other issue directly made up -for the purpose; and not in a collateral enquiry, the only object of which is to ascertain whether oyer ought to be given of the deed. It is supposed that a defendant who craves oyer desires to have it, and will himself do nothing to prevent his having it. His object in craving it is, to be better able to make his defence after he gets it, and not to make his defence in the act of craving it.

An excuse for not producing a deed may be made in the declaration, or it may be made in another form after oyer is craved by the defendant. . Suppose the declaration contains neither proferí nor any excuse for not.making it, and the defendant - appears at rules when the declaration is filed and craves oyer, as he did in this case; what ought then to be the course of proceeding? Ought oyer to be given or a good excuse for not giving it made before the defendant is required to plead? or may the clerk proceed, as he did in this case, to mature it for trial at the next term by giving a rule to plead, and entering a judgment in the office by nil dicit? If the original deed be filed with the declaration, as is generally the case, the defendant should at once take oyer of it and demur or plead at his election; but if the deed be not so filed, and the defendant will not "plead without ojrer, the clerk may properly take the rules, as he did in this case, without regard to the craving of oyer, so that the case may be ready to be disposed of at the next term of the court unless there be good cause for a continuance. If an excuse for not giving oyer can be made at rules its sufficiency can only be determined by the court, and there is no reason for making it until the next term of the court after oyer is craved.

But it was argued by the counsel for the defendant in error that though the excuse in this case be sufficient, the demurrer thereto goes back to the declaration, which is faulty, and the judgment should therefore for the defendant.

It is true as a general rule that on demurrer the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it. But to this rule there are exceptions; as when the plaintiff demurs to a plea in abatement, in which case the court, deciding against the plea will give judgment |of respondeat ouster, without regard to any defect in the declaration. So the court, in examining the whole record to adjudge according to the apparent right, will consider only the right in matter of substance, and not in respect of mere form, such as should have been the subject of special demurrer. Steph. 162-4.- We think that this case also is an exception, and that in deciding on the demurrer to the excuse the court ought not to go back to the declaration. The excuse is a mere collateral matter, certainly standing on no higher ground than matter of abatement. The law prescribes no mode of making it. It may be made as well ore tenus as in writing. And the objection to it may be made as well orally as by a formal demurrer. If made orally, the objection would of course not reach back to the declaration and make it necessary for the court to pass upon its "sufficiency.

It can have no such effect if made formally by demurrer. There can be no legal difficulty, and generally no inconvenience, in presenting the question on both sides ore tenus. It is a question for the court to decide, (unless an issue of fact be made up thereon for the jury), and may be disposed of by its rules and orders like any other collateral question coming up for its decision in the course of legal proceedings before it. The case is analogous to a proceeding to enforce the production of an instrument not under seal on which an action or defence may be founded and which the court may require to be produced for the inspection of the adverse party. 3 Chit. Gen. Prac. 433, 619; 2 Arch. Prac. 219. An error of the court in deciding the question when it comes up orally would be liable to review and correction by an appellate court, as well as when it comes up formally by written excuse and demurrer. In the former case the point could be put upon the record by a bill of exceptions. In the-latter it would be put there by the pleadings,, and the decision of the court thereon which would be entered in the order book.

Even if the demurrer to the excuse operated as a demurrer . to the declaration it would be to the whole declaration, and not to each count severally. As the craving of oyer and excuse go to the whole, so also-must the demurrer to the excuse, if it goes to the declaration at all; according to the principle of the case of Ward v. Sackride, 3 Caine’s Rep. 263, referred to in 1 Rob. Pr. (old) 290. That principle is, that a. demurrer by the plaintiff to the defendant’s, plea cannot operate as a demurrer by the defendant to the plaintiff’s declaration to any greater or less extent than the plea of the defendant was pleaded to the declaration. If therefore a declaration contain two counts the first of which is confessedly bad, and the plea of the defendant is to the whole cause of action, extending as well to-the first "count as to the second; upon a demurrer by the plaintiff to this plea, judgment cannot be given for the defendant upon the ground that the first count is bad. In this view of the case we would have to consider it as upon a demurrer to the whole declaration; and we must so consider it, because there was a demurrer to the declaration which was not decided upon by the Circuit court otherwise tham by giving judgment for the defendant on his demurrer to the excuse. The whole record is before this court; and if upon the whole, judgment ought to be for the defendant, the judgment of the Circuit court must be affirmed. We will therefore proceed to consider the case upon the demurrer to the declaration.

It is a general demurrer, and indeed could not have been otherwise, the action having been brought since the enactment of the Code which abolished special demurrers. And it is a demurrer to the whole declaration, and must therefore be overruled if either count be good. We think both counts are good, at least in substance.

As to the first count; a formal objection is taken to it which would be unavailing if well founded, to wit: that it sets out the cause of action by way of recital. But it is not even well founded. The quod cum, as it was called, might always have been used, and generally was, in actions ex contractu, though not in actions of trespass. But the chief objection taken to the first count is, that it does not aver performance of a condition precedent, to wit: that the plaintiff’s testator was first duly authorized to receive the amount demanded in the action. This condition precedent is supposed to be created by the use of these words in parenthesis, “(they being first duly authorized to receive the said amount),” which follow the agreement to secure on real estate the several sums of money to the several parties mentioned in the instrument.

In deciding upon the demurrer we *must construe the instrument by itself, and cannot look to the cases in 4 Peters 205, 9 Id. 418, and 12 Id. 145, or any thing else dehors the instrument, for explanation. So construing it, the words in parenthesis are insensible, and cannot affect the obligation of the express promise to pay the money. They must be treated and rejected as surplusage. An obligation is construed most strongly against the obligor. He must take care to use intelligible words to express any condition precedent he may wish to impose on his obligation. Of course, the obligee is duly authorized to receive a sum of mone3r which the obligor expressly promises to pay him; there being nothing in the instrument to show how or by whom the obligee is to be otherwise duly authorized. If the words can derive such explanation from the light of extrinsic facts as would give them effect, it devolves on the obligor to allege and prove the facts in his defence. The shifting of the burden of allegation and of proof is the only consequence of his neglect to express his intention plainly, provided he has so expressed it as that, with the aid of extrinsic facts any effect at all can be given to it. The instrument is not a deed inter partes between Lloyd and Schofield. The latter is not a party to it, and his name is not so mentioned therein as to show that he has any interest in it.

As to the second count, the only objection taken to it is that it does not sufficiently aver performance of the condition precedent, supposing the words in question to create one. It avers such performance in the very words of the condition, to-wit: that the plaintiff “is duly authorized to receive” of the said John Lloyd the said sum of $1100 with interest thereon as aforesaid. It is a general rule that a breach of a covenant or other contract may be assigned in the very words of the contract. 3 Rob. Prac. 590-597, 4 Id. 8. And that is generally the best and safest mode of assigning it. In

Martyn v. *Clue, 83 Eng. C. L. R. 681, Lord Campbell said, in answer to an objection to an assignment of this kind, 1 ‘Ho authority was cited to show that an allegation of the breach following the words of the covenant was insufficient; and we find no principle for so holding. The defendant must be taken to have understood the application of the covenant he chose to make.” A breach need not be assigned in the words of a covenant, but may be assigned in equivalent words; as in Eletcher v. Peck, 6 Cranck’s R. 87, 127, cited in 3 Rob. Pr. and 4 Id. 6, where it was objected to the declaration that the covenant was that the legislature had a right to convey, and the breach was that the legislature had no authority to convey. Marshall, C. J., said: “It is enough that the words of the assignment show unequivocally a substantial breach. The assignment under consideration does show such a breach. If the legislature had no authority to convey, it had no right to convey.” Generally the same rules which apply to an assignment of breaches also apply to an averment of performance of a condition precedent. If there be any difference the rules which apply to the latter are less stringent than those which apply to the former. The courts, especially in England, have gone very far in sustaining the sufficiency of averments of performance of conditions precedent. 3 Rob. Prac. 571, 578.

It is true that it is sometimes insufficient to follow the words of the contract, but it is necessary to be more specific. And it is also true that there are cases which decide that the declaration should not present for the determination of the jury what is matter of law; or partly of law and partly of fact; as that a party was duly appointed administrator; or was duly appointed receiver; but it should state what in particular was done; so that if the fact be admitted, the court can determine whether he was duly appointed; or, if issue be joined on the allegation, the jury can answer as to its truth. 3 Rob. Prac. 530 and the cases cited.

*But whether or not, according to the strict and technical rules of pleading, the averment, being in the very words of the deed, is sufficient; or should have been more specific; or should have been only of matter of fact; certainly the defect, if there be one, is only of form and not of substance, and, since special demurrers have been abolished, is not now ground of demurrer. The Code, ch. 171, § 31, provides that “on a demurrer (unless it be to a plea in abatement) the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence that judgment, according to law and the very right of the cause, cannot be given.” The important words, “whether it has been heretofore deemed mispleading or insufficient pleading or not,” were added at the last revisal, and seem to be a very material extension of the operation of the law. The most that can be said of the defect in question is, that it might have been deemed insufficient pleading before the enactment of the Code; and not that anything is omitted in the declaration so essential to the action that judgment according to law and the very right óf the case cannot be given.

We are therefore of opinion that the words in parenthesis do not create a condition precedent, the performance of which it is necessary for the declaration to aver, and therefore the first count is good; and if they did, that performance of the condition precedent is sufficiently averred in the second count, which is therefore good; and one, if not both, of the counts being certainly good, the demurrer to the declaration cannot be sustained.

The result of the foregoing opinion is that the judgment must be reversed, the excuse for not giving oyer sustained, the demurrer thereto overruled, and the defendant required to answer without having oyer.

Judgment reversed.  