
    JOLLEY vs. PLANT ET AL.
    At Law.
    No. 10,324.
    In an action of debt upon a bond, the declaration should state the breach ( and that defendants have neglected to pay the sum due, or that the same remains unpaid at the time of bringing suit. This is a necessary allegation.
    STATEMENT OE THE CASE.
    This was an. action on a bond. The declaration describes the bond and alleges a breach of its condition, and then concludes, “ Wherefore, the defendants became liable to pay the amount aforesaid,” but it does not show that the defendants neglected to pay the same, or that it was still unpaid. The defendants demurred that the declaration was bad in substance, which was overruled by the court below, whereupon the defendants appealed to the general term.
    
      Fred. P. Stanton for plaintiff.
    
      E. L. Stanton and A. S. Worthington for defendants.
   By the Court:

The demurrer is well founded, for the reason that the declaration does not show any liability on the part of the defendants at the time of bringing suit. The declaration should not only state the breach complained of, but the non-payment of the amount due upon the specialty. The simplified form prescribed by our common-law rules makes it a necessary allegation that the sum claimed “ is still unpaid.”

As this essential requisite is wanting, the circuit court erred in overruling the demurrer, and the order appealed from must therefore be reversed.  