source: Caselaw Access Project

author: Dickissoi?, Judge,

license: Public Domain

text:
    William McLaughlin against Archibald Hutchins.
    Eeeoe to Monroe Circuit Court.

      Where there is a penalty and covenant in the same deed, the party may either bring debt for the penalty or covenant for the damages.
    If the penalty be paid or recovered, he cannot resort back to his covenant.
    When, after demurrer, a party pleads over, he is considered as having withdrawn his demurrer, and can afterwards take advantage of no defect that would be aided on general demurrer.
    In an action for breach of covenant, the defendant cannot plead, generally, that there is in the covenant a condition precedent to be performed, by the plaintiff, before he can maintain his action.
    It must set forth specially the condition, with the time and manner at, and in which it should be done, and aver that he is ready and willing to perform his part of the covenant.
    On demurrer the court wiil examine the whole record, and give judgment to the party who, on the whole, is entitled to it.
    In all cases where there are dependent covenants, if the performance of one depends on the performance of the other, the performance of the prior condition must be averred in the declaration.
    Where an action of debt is brought on a penal bond, with a condition, it is a sufficient breach to aver that the penalty has not been paid ; but if covenant is brought, breaches of the condition must be assigned; and it is not sufficient merely to state the penal part of the bond, and aver the non-payment of the penalty.
    In covenant, the penal part of the obligation forms no part of the contract: it is upon the stipulations in the condition that the action is founded, and it is not necessary to aver the non-payment of the penalty. The breaches must assign the non-performance of the stipulations in the condition, without noticing the penalty.
    The action, in this case, was in covenant, returnable to March term, 1838. The declaration was, that McLaughlin, on the 15th day of September, A. D. 1836, by his bond, of that date, together with one Jesse McLaughlin, who was not sued, covenanted and agreed with the plaintiff, to pay him the sum of one hundred dollars; with a breach, “ that the defendant had not paid the plaintiff the said sum of money, or any part thereof,, according to the true intent and meaning of said covenant and bond; and so the said plaintiff, in fact, saith, that the said defendant (although often requested so to do) hath not kept the said covenant, so made by him, as aforesaid, but hath broken the same; and to keep the same with the said plaintiff, hath, hitherto, wholly neglected and refused, and still doth neglect and refuse, to the damage of said plaintiff, one hundred and fifty dollars; and, therefore, he brings his suit,” &c. The defendant appeared, and craved oyer; which was granted. The instrument, given as oyer, was the bond of William McLaughlin, as principal, and Jesse McLaughlin as security, to Archibald Hutchins, for one hundred dollars, in the common form; with a condition that, whereas, Wm. McLaughlin was entitled to a pre-emption to eighty acres of land, in the Lawrence land district, to be located so soon as certain other lands in Monroe county should be subject to entry: therefore, if he should, within thirty days after the same should be subject to entry, make a location of the same in the name of, and for the exclusive use and benefit of Hutchins, on such land as Hutchins should designate, and on his paying into the land office the entrance money for the same, and paying all the expenses consequent on the entry: and furthermore do, or cause to be done, all such other acts, in the premises, as should vest in Hutchins a legal and equitable right in fee simple to such land, then to be void.
    The defendant demurred to the declaration; but, the demurrer being overruled, he pleaded in bar that “ he is not bound to pay the said Archibald Hutchins the said one hundred dollars, as he, the said Archibald Hutchins has, in his declaration, alleged as a breach of covenant, because he says, that the said one hundred dollars only became due and payable upon conditions precedent of said covenant, as follows, to wit, (being the same as set out on oyer:) “the said William McLaughlin in fact saith that the said Archibald Hutchins has not performed the conditions precedent, as set forth in the covenant, to entitle him, the said Archibald Hutchins, to maintain his suit.” To this plea a demurrer was sustained, and, no further defence being made, judgment was, at the next term, entered on assessment of damages, by writ of inquiry, for one hundred and fifteen dollars.
    Fowler & Blackburn, for plaintiff in error:
    None but an action of debt can be sustained upon the bond in controversy, it being a penal bond for a sum certain, with conditions underwritten. That covenant would not lie thereon at common law; and the statute, in substance, prescribes the action of debt upon such a bond, as in no other species of action could a judgment be rendered for the penalty of a bond, eo nomine el in numero. See Pope, Steele, and McCamb. Dig. p. 348, sec. 95. And the plaintiff cannot help assigning breaches. ’ 1 Saund. 58.
    If debt is the proper form of action, the demand being only for the sum of one hundred dollars, is exclusively within the jurisdiction of a Justice of the Peace. Whether debt or covenant, or either, be the proper form of action, the declaration is wholly insufficient, in law, in this: that the bond sued on is without consideration expressed therein, and is void in law; that it contains a condition precedent to be performed by Hutchins, to wit: the payment of the government price of the land, and the selection of the tract, &c., and no performance thereof, or offer to perform, is alleged in the declaration; that there is no allegation in the declaration that the improvement or land specified had become “subject to locationthat there is no allegation that the said Jesse McLaughlin did not pay the said sum of one'hundred dollars, or otherwise broke his covenant; that there are no breaches whatever alleged of the conditions or covenants underwritten either in the declaration, or assigned otherwise, before final judgment; that there is no statement whatever of said conditions which would be, in an action of covenant, absolutely necessary in the declaration, and in an action of debt, either in the declaration or assigned otherwise under the statute of 1831; and the breaches of the contract must be laid in the declaration commensurate with the contract itself — neither broader nor narrower. In this case there is no attempt to allege any breach, except that Wm. McLaughlin did not pay the said sum of one hundred dollars. 1 Bibb 242, Ramsey vs. Matthews; ib. 465, Pollard vs. Taylor; Campbell and, wife vs. Strong, decided in the late Superior Court; Com. Dig. (Pleader ,) c. 57, 52; 1 T. R. 638; 2 Saund. Rep. 352; I Chit. Plead. 327; Hard. Rep. 509, Dorsey, &c., vs. Lawrence, (kc.

    The plea filed by McLaughlin was a good plea, at any rate as good as the declaration, and when Hutchins demurred thereto, the Circuit Court ought to have given judgment thereon, upon the defects in the declaration, in favor of McLaughlin. 1 Bibb 452, Mitchell vs. Gregory; ib. 459, Bodine vs. Wade; 1 Ch. Pl. 647.
    That although McLaughlin pleaded over to the declaration, a demurrer to his plea and judgment thereon, against him, leaves him in the same attitude as though he had not pleaded at all, but rested the case on the judgment against him, on his demurrer to the declaration; and, consequently, that this court will, in like manner, look into and pass judgment upon the entire declaration. 1 Bibb 273, Hack vs. Prince; ib. 448, Jones vs. Grugett; Hard. Rep. 164, Beauchamp vs. Mudd; 1 Ch. PI. 647.
    The final judgment is irregular. The statute requires that it should be rendered for the penalty of the bond, <fcc. Pope, Steele, and McCamp. Dig.p. 348, sec. 94.
    Although judgment on demurrer had been entered against McLaughlin, yet, inasmuch as no breaches of the said conditions or covenants had been assigned or attempted to be proved before the jury, the jury could only find nominal damages, if any, and the court below erred in refusing to instruct them. The production of the bond even admitting that the judgment on demurrer was a tacit acknowledgment of a breach was clearly no proof whatever of damages sustained by Hutchins, and therefore the assessed should have been nominal. The statute, in such case, requires proof of the breaches. Vide Pope, Steele, and McCamp. Dig. 348, sec. 95; 1 T. R. 18, Johnston vs. Belfoups ex’s.

    The contract given on oyer, and read in evidence, varied materially from the one declared on. The demurrer reached such variance. It ought to have been excluded from the jury by the court on the assessment of damages on the writ of enquiry. 1 Bibb Rep. 366, Carr et ux. vs, Marshall.

      Additional authorities conceived to be applicable: 9 Law Library, 31, 46, 42; Shop. Touch. 375; 2 Saund. 107 b. note 3; 1 Finch. 158, 138, 308; 2 Bac. Abr., title Debt, 13 (A,) 20 Debt (E.) T
   Dickissoi?, Judge,

delivered the opinion of the court:

A covenant is an agreement entered into, bj deed, between two or more persons, for tire breach of which an action of covenant will lie at the suit of the party injured, to recover damages for the loss which he has sustained. If for a sum certain, debt and covenant are, in general, concurrent remedies. But if the damages are unliquida-ted or incapable of being reduced by averment to a certainty, debt is not maintainable: it lies only for money in numero. Where bonds, guarded by penalties, are executed as additional securities for the performance of covenants, there are two remedies to be pursued, at the option of the party injured. He may, as often as the articles are broken, have, toties quoties, an equitable relief upon the footing of the articles themselves for a partial breach of contract, or he may take the penalty; that is to say: where there are a penalty and covenant in the same deed the party has his election, either to bring debt for the penalty, or covenant for damages,

In the former case the contract is rescinded, and the penalty becomes the debt ia law; subject, of course, to relief in equity, and to restrictions by the mode of proceeding under the statutory provisions. And if the penalty be paid, according to the stipulation of the articles, or be recovered as the debt in law, the party cannot resort back to his covenant or action for breach of contract, but he may elect to bring his action of covenant on the contract, and, according to the nature of the case, may recover. Barton vs. Glover, 1 Holt, N. P. R. 44; Wait vs. Trim, 1 W. Bla. R. 395; Harrison vs. Wright, 13 East 343.

As regards the demurrer to the declaration, the rule is well established, that when a party pleads ever, and refuses to rely upon his demurrer, he is considered as having withdrawn it, and shall not after-wards take advantage of any defect in the plea that would be aided on general demurrer. One of the causes of reversal, assigned by the plaintiff in error is, that « his plea was not essentially insufficient, and therefore ought to have been sustained.” It is a principle ad-heard to, that whatever is alleged in pleading, must be alleged with certainty. Com. Dig. Pl. C. 17, C. 22. So that in an action for breach of covenant, the defendant cannot plead generally that there is a condition precedent in the covenant tobe performed by the plaintiff before he can maintain his action, because this is too wide and uncertain to enable the parties to take an issue. But he must set forth specially the condition which the plaintiff is bound to perform, with the time and manner in which it is to be done, with an averment that he is ready and willing, and hath offered to peform his part of the agreement. The plea does not conform to these rules; and is therefore defective. But, inasmuch as the plaintiff objected to the sufficiency, &c. of the defendant’s plea, the 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, here applies. Com. Dig. Pl. M. 2; 1 Saund. 228, n. 5; Foster vs. Jackson, Hob. 56; 2 Wil. 150; LeBret vs. Papillon, 4 East. 503; Woodward vs. Robinson, 1 Str. 302; Pringle vs. Ramsey, 11 J. R. 141.

Thus, on a demurrer to the replication, if the court thinks the replication bad, but perceives a substantial fault in the plea, they will give judgment, not for the defendant, but for the plaintiff; Thomas vs. Heathorn, 2 B. and C. 477; provided the declaration be good. This rule belongs to the general principle, that where judgment is to be given, the court is bound to examine the whole record, and adjudge for the plaintiff or defendant, according to the legal right as it may, on the whole, appear. Griswold vs. Griswold, National Ins. Co., 3 Cowen 96. And that, on demurrer, the party who commits the first substantial fault in pleading, shall have judgment against him. Wyman vs. Mitchell, 1 Cowen 316; Allen vs. Crofoot, 7 Cowen 46; Utica Ins. Co. vs. Scott, 8 Cowen 716. The case of Gelston vs. Burr, 11 J. R. 482; also, County vs. Lockwood, and others, 15 J. R. 488, are precisely in point. If, then, this be the rule in pleading, and that it is, will not be controverted, it becomes necessary tofascertain if there be any substantial defect in the declaration.

This suit is instituted upon a penal bond with covenants, that McLaughlin shall locate a certain floating pre-emption right, of eighty acres, upon such a piece or parcel of land as Hutchins shall designate, within thirty days after the same shall be subject to entry and location; provided Hutchins shall pay the entrance money therefor, with the expenses upon the entry and location; and that he, the said Wm. McLaughlin, shall then cause to be done all such and further matters and things as shall vest in him, the said Hutchins, a legal and equitable right in fee simple to the land to be designated. The declaration simply sets out the bond, without the conditions, and avers that the defendant below did not pay the penalty. Is this such a breach as is necessary in an action of covenant, where damages are claimed? for an injury sustained, requires the intervention of a jury. The allegation of breach must be governed by the nature of the contract. It should be assigned in the words of the contract, or in words co-extensive with the sense and effect of it. When the consideration of the defendant’s contract is executory, or his performance to depend upon some act to be done or performed by the plaintiff or some other person, the plaintiff must aver the fulfilment of such condition, whether it were in the affirmative or negative, or to be performed or observed by him or the defendant, or some other person, or he must show some excuse for the non-performance. Ughtred’s case, 7 Co. 74; 1 Ch. Pl. 320; Com. Dig. Pl. G. 56. And whenever it can be collected, from the apparent intention of the parties to the contract, that there is a condition precedent, and no excuse for the non-performance is alleged in the declaration, then an averment of performance is not only necessary, but it must be shown to be according to the intent of the parties to the contract, and must be precisely alleged, and with reasonable certainty, so that the court may judge whether the intent of the parties has been duly performed; as, on a contract in consideration that the plaintiff would acquit A. of a certain debt, it is not sufficient to say that he acquitted him, without showing how, viz: by deed. 1 Saund. 285. In all cases, therefore, where a covenant is dependent, or the performance of the one depends on the performance of the other, the performance of the prior condition must be averred in the declaration, to render the other party liable to an action. This doctrine is fully sustained in the case of Boone vs. Eyre, 1 H. Bla. 273; Smith vs. Walker, 8 East. 427; Thomas vs. Cadwallader Willes 496; Davidson vs. Moore, 3 Doug. 28.

Believing that the principles, by which this action is governed, are well settled, and that the cases referred to will sufficiently illustrate their correctness, we will now apply them to the pleadings. In covenant the party goes for damages, which must be governed by the testimony adduced in support of the breaches assigned. If there are no breaches assigned upon the condition or covenant, how is it possible for a jury to assess damages, or even nominal damages on demurrer, nihil dicit, or confession ? The condition of the obligation is made a part of the record here by oyer. And as there are no breaches assigned upon the covenant contained in that condition, there is nothing upon which testimony could be introduced to found a verdict for damages. The declaration is therefore fatally defective. The plea being bad and the declaration also, upon the rule laid down requiring us to look into the whole of the record, and give judgment against him who committed the first substantial fault in the pleading, we are of opinion that judgment ought to have been given for the defendant, upon the plaintiff’s demurrer to the plea. But has the party mistaken his form of action, as contended by the plaintiff in error? Debt and covenant are said to be, in general, concurrent remedies. Upon such a bond as is presented by the pleadings, we apprehend that the practice is now too well settled to doubt the right of the party to pursue either mode at his election. He may sue in debt for the penalty, or go for damages in covenant. He must however make his election, and be governed by the rules regulating the action under which he seeks relief. In covenant, the penal part of the obligations forms no part of the contract between the parties. But it is upon the stipulations in the condition alone that the action is founded, and it is not necessary to aver the payment of the penalty. The breaches must be assigned in the non-performance of the stipulations without noticing the penalty. Beasly vs. Gillespie, 4 Bibb 314; Kennedy vs. Kennedy, 11 Bibb 465; 3 J. J. Marshall 469.

The action of covenant is defined to be for the recovery of damages for the breach of any agreement entered into between the parties, and there is no need for the word covenant; for any thing under the hand and seal of the parties, importing an agreement, amounts to a covenant; Esp. N. P. 266-7; and Lord Mansfield in 2 Burr 826, says that “ the condition of the bond is an agreement.” If this action had been in debt, founded as it is upon the penal part of the obligation, no objection could have been raised tb it. If, however, he intended to bring covenant, he should have assigned his breaches upon the condition. It is unnecessary to notice the other assignments of error. The judgment is reversed.


author: Dickinson, J.,

text:
    Matthew T. Logan against John S. Williamson.
    A debt may be paid or extinguished by a third person becoming responsible to the creditor, with the concurrence of the debtor.
    If the creditor, without the knowledge and consent of the debtor, grants further indulgence to the person so becoming responsible, he does it at his own peril; for as between himself and the debtor, the giving indulgence, without notice, operates an agreement on his part, to look to the third person and discharge the debtor.
    This was an action of assumpsit, instituted by Williamson against Alonzo C. Sadler, and Matthew T. Logan. The declaration contained three counts.
    The first count set out that Sadler and Logan, on the 15th October, 1838, in consideration that Williamson had sold and delivered to them a horse, at the rate or price of $¡125’, delivered to Williamson a writing obligatory or covenant, executed by one Thomas J. Pax-ton, wherein he promised to pay one Thomas W. Stobaugh, on or before the first day of September, 1838, one hundred and twenty-five dollars in cash notes, by his (Paxton’s) assignment, for value received; which writing obligatory Sadler and Logan, on the 15th October, 1838, endorsed and delivered to Williamson, and then and there undertook and promised Williamson, that if Paxton did not pay him the sum of one hundred and twenty-five dollars in cash notes, they (Sadler and Logan) would pay him the said sum of one hundred and twenty-five dollars. The count then goes on to aver that Williamson, on the 16th February, 1839, presented the writing obligatory to Paxton, and requested him to pay the amount of it in cash notes; which Paxton neglected and refused to do, and further avers that he, Wil-iamson, had used due diligence to collect the said debt of one hundred and twenty-five dollars in cash notes off of Paxton; and then limmediately follows the breach that Sadler and Logan, although often requested, have not paid to him, Williamson, the said sum of one hundred and twenty-five dollars.
    The second count is an indebitatus assumpsit for $125, the price of a horse sold and delivered to Sadler and Logan, by the plaintiff below; and the third count is a quantum meruit for the same cause of action.
    To this declaration, there was a plea of the general issue and join-der; and, upon the death of Sadler, pending the suit, it was revived, and progressed in the name of Logan, surviving partner, &c. ■
    On the 17th April, 1840, there was a trial, and verdict and judgment for the plaintiff, Williamson, for $137 82 damages. The bill of exceptions, taken at the trial, sets out fully all the evidence in the cause, and the several instructions moved for by the defendant and Logan, all of which were overruled by the court, as well as the instructions given by the court.
    The evidence in the case was to the following purports On the 15th of October, 1838, Williamson bartered a horse with Sadler and Logan for a covenant executed by Paxton, dated September 26th, 1837, by which he promised to pay one Thomas W. Stobaugh, on or before the first day of September, 1838, one hundred and twenty-five dollars in cash notes, to be assigned by him. Sadler and Logan took the horse, and endorsed the covenant to Williamson, by the common endorsement, “For value received, pay to J. S. Williamson.” On the 17th of November Williamson called on Paxton, who told him that he then had not the notes, but if he would call between the first and tenth of January, 1839, he would settle it. About the first of February, 1839, Williamson again called on Paxton, who gave him an order on Robert Bonds, directing him to pay Williamson $>125 in good cash notes; and, if he had them not at the time, to get them in two or three days, and keep the note he would receive of Williamson. Williamson presented Bonds with the order, who told him that if he would call on the next Tuesday he would pay him. He promised to call accordingly, but did not do so; nor ever presented the order afterwards. On the Tuesday when Williamson was to call, Bonds had the notes ready, and kept them for a month afterwards. Paxton heard nothing about the matter, from the time he gave Williamson the order on Bonds, till some time in June following. In the mean time other moneys were collected of Paxton by process of law.
    Under this state of fact, the defendant, in the count below, moved the court to instruct the jury, 1st: to find as in the case 0/ non-suit; 2d: that Williamson was not entitled to recover on the first count in the declaration, unless he proved a special agreement on the part of Sadler and Logan, that if Paxton did not pay the note, they would; or that Williamson had used due diligence, and failed to collect the note off of Paxton; 3d: that when Williamson took the order to Robert Bonds, and gave time to Paxton, it was a discharge of the debt as to Sadler and Logan; 4th: that the plaintiff, Williamson, has been guilty of such laches that he is not entitled to recover in this action; 5th: that if the jury believe that Williamson took the note on Paxton in payment of the horse, he was not entitled to recover oh the second or third counts in the declaration; 6th: that if the jury believe that Williamson took the order on Bonds in payment for the horse, or in payment of the note, he is not entitled to recover in this action; 7th: that there is no evidence going to show that Paxton is either unwilling or unable to pay the note for $125, and that the remedy for Williamson is against Paxton, upon the note, or upon the order which Paxton gave him upon Bonds, and not against the defendant in this action.
    All which instructions the court overruled, and refused to give, and instructed the jury, that Williamson had a right to sue Paxton and Sadler and Logan, as makers of the note, together, or to sue Pax-ton as maker of the note, and Sadler and Logan, as assignors, separately, as he might choose in this action.
    Ashley & Watkins, for plaintiff in error:
    The evidence does not show any special agreement whatever, on the part of Sadler and Logan, to pay Williamson $125, if Paxton did not pay the amount in cash notes, which is the gist of the action as laid in the first count. On the contrary, it tends rather to show that Williamson took the note on Paxton for the horse, one for the other, absolutely at his own risk; and Sadler and Logan, instead of giving him any special guaranty, simply endorsed the note to him, which endorsement was made after the note had fallen due, and in any event, the declaration is fatal in not averring notice to Sadler and Logan, of the non-payment by Paxton, or any demand upon them for the $125.
    The instruction of the court below seems to have been founded upon the statute of assignments, approved and in force December 1st, 1837. See Rev. Stab, p. 107, which authorizes suit to be brought, in certain cases, against the maker and endorsers or assignors, together or separately; but which will be found, upon examination, to have nothing whatever to do with the case then before the court.
    The note of Paxton for $¡125 in question, is shown by the evidence to have been executed on the 26th of September, 1837 — prior to the passage of the statute, which being introductory of a new rule of law, as to the liability of parties to a note, could not relate back to this note. The statute requires such an instrument of writing to be for the payment of money alone, (see sec. 9), whereas, Paxton’s note in this case, is a property note, being for $¡125, payable in cash notes, by his assignment. But this suit was not brought against Sadler and Logan, as assignors under the statute, because then, the action, following the nature of Paxton’s note, which is a sealed instrument, must have been covenant or debt. The gist of the action is a special agreement, on the part of Sadler and Logan, to pay the $125, if Paxton did not pay it in cash notes; and no such agreement is proven. Again, the statute, in order to render the assignor liable with the maker, requires that he should have had due notice of the non-payment or protest of the instrument. Sadler and Logan could not have had such a notice in this case, because the note had been due a month and a half before they assigned it to Williamson.
    If, then, there be any liability whatever upon Logan, as survivor of Sadler and Logan, in this case, it is under the old and well settled doctrine of assignments, that the assignee must have used due diligence, and failed, against the maker, before he can resort to the assignor for payment.
    The plaintiff in error does not deem it necessary to go into any argument as to the overruling of the several instructions moved fqr by him in the court below. It is believed that the refusal to give any one of them is fatal to the judgment in this case; but when taken altogether, they cause it to appear more manifestly erroneous.
   Dickinson, J.,

delivered the opinion of the court:

The plaintiff in error contends that the defendant had, by his own acts, released him. The principle is clearly established: That a debt may be paid or extinguished by a third person becoming responsible to the creditor with the concurrence of the debtor. If the creditor grants further indulgence without the knowledge and consent of the debtor, he does it at his peril. Because, as between himself and the debtor, the giving indulgence, without notice, operates as an agreement, on his part, to look to the third person, and discharge the debtor. Chitty on Contracts, 581; Tatlock vs. Harris, 3 T. R. 180; Buller, Justice, puts this case, “Suppose A. owes B. £100, and B. owes C. £100, and the three meet, and it is agreed between them, that A. shall pay C. the £100, B’s debt is extinguished, and C. may recover the sum against A.” The same doctrine is laid down in Wilson vs. Coupland, 5 B. & A. 228.

In applying these principles to the case before us, it is necessary to ascertain if there had been such an indebtedness between them, and concurrence of the parties, as to amount to an extinguishment of the debt as between the original parties. Sadler and Logan were indebted to Williamson, in the sum of one hundred and fifty dollars, and assigned him a note, or bond, due by Paxton, for that amount. A month elapsed before he demanded payment, and he then gave an extension of time to the first of January, 1839, when he received an order from Paxton, on his debtor Bonds, for the amount. This order was not presented by him until February following, and then, he again extends the time of payment to the next Tuesday following, when, Bonds being ready to pay and fulfil his contract, Williamson failed to appear. Here was a mutual indebtedness of the various parties, and a substitution of Bonds in place of Paxton, by the act of Williamson, with the assent of all parties whose concurrence was necessary. The liability of Sadler and Logan was, then, clearly extinguished: they had ceased to have any control. Williamson, in receiving the order from Paxton on Bonds, and granting him time for payment, acted at his peril, and was guilty of such laches as released the plaintiffs in error, and the court below ought so to have instructed the jury. The judgment is reversed.


text:
    James Kuykendall against Oliver Gilbreath.
    Error to Crawford Circuit Court.
    Upon a note for a certain sum for value received, payable one month after date, “pro. vided the pre-emption be good and lawful, and passes to the end that will secure to me the uses and purposes for which such pre-emptions have been appropriated, if not, return said pre-emption, and this note to be valid in law,” the true construction is, that, one party had purchased of the other a pre-emption, for which he was to pay such a sum in one month, provided the pre-emption was good, and passed so as to effect the object of the purchase. \
    A determination upon the validity of the pre-emption, and its passing so as to effect the objects of the purchase, are, in such cases, conditions precedent to the payment of the money.
    Where a day certain is appointed for the payment of money, if the day is to arrive after the time at which the consideration ought to be performed, for which the money Í3 made payable, the performance of the consideration is a condition precedent to' the payment of the money.
    A declaration therefore in debt, in the usual form, upon such a note, without noticing the proviso, 'is bad.
    Kuykendall brought his action of debt against Gilbreath, by a declaration in the usual form upon a money bond, in every way technically and strictly correct. At September term, 1839, the record states, the defendant craved oyer of the writing sued on, which was granted by filing the original. He then demurred upon the record to the declaration, stating no special grounds of demurrer. A writing is copied in the record, which is in the following words and figures:
    “ One month after date I promise to pay James Kuykendall, or order, the sum of five hundred dollars, for value received, this 11th day of June, 1836.
    “Provided the pre-emption be good and lawful, and passes to the end that will secure to me the uses and purposes for which such pre-emptions have been appropriated, or if not, return said pre-emption, and this note to be valid in law.
    “OLIVER GILBREATH, Seal.”
    The court below sustained the demurrer, and judgment was rendered for the defendant.

      Tuener & Pike, for plaintiff in error:
    The ground on which the judgment is attempted to be sustained is, that there is a variance between the instrument copied in the record, and the statement in the declaration: or rather, that the declaration omits the proviso contained in the bond.
    But, in the first place, the bond copied in the record is not made a part of the record, nor does it appear to be the same which was given on oyer; on the contrary it is manifestly 'a different one, inasmuch as it is endorsed filed December 14, 1836, and oyer was craved and granted September 10,1839. Consequently, in order to determine whether the demurrer was properly sustained, reference must be had exclusively to the declaration, which is every way good.
    In the second place, we apprehend that even if the bond copied in the record is considered as given on oyer, still under the decisions of this court, a variance between the writing as sued on, and that given on oyer, or an omission to state some portion of it, could not be taken advantage of on demurrer, unless specially assigned — the declaration showing a good cause of action.
    Moreover, we conceive that it was unnecessary to set out the proviso in the declaration. It contains no condition precedent, to be performed by the plaintiff, nor is he in any way named or referred to in it, or in any manner connected with the pre-emption mentioned in it. Of course the question of dependent or independent covenants does not arise, nor is there any condition precedent to be performed by the plaintiff. The proviso is in fact senseless and utterly devoid of meaning, and amounts to nothing.
    The rule laid down by Chitty as to provisos, is as folllows: “ That wherever there is a circumstance, the omission of which is to defeat the plaintiff’s right of action, prima facie well founded, whether called by the name of a proviso or a condition subsequent, it must, in its nature, be a matter of defence, and ought to be shown in pleading-by the opposite party. 1 Ch. Pl. 255; Hotham vs. E. Ind. Co. 1 T. R. 645. In pleading upon statutes, when there is an exception, not in the enacting clause, but in a subsequent one, that is matter of de-fence, and the defendant must show it,. to exempt himself from the penalty. Id.; Rex vs. Ford, Str. 555; Rex vs. Bryan, ib. 1101; Sheldon vs. Clark, 1 J. R. 513; Bennett vs. Hurd, 3 J. R. 438; Teel vs. Fonda, 4 J. R. 304; Hart vs. Cleis, 8 J. R. 41. And in regard to contracts the law is thus defined: that if the promise or engagement embody or contain, as part of it, an exception or proviso which qualifies his liability, or in certain instances renders him altogether irresponsible, so that he was not in law absolutely bound, the declaration must notice it. 1 Ch. PI. 339: But where the proviso in a written instrument is distinct from, and is not even referred to by the clause on which the debt is charged, it is considered matter of defeasance, &c., which ought to come from the other side, and then it need not be set forth by the plaintiff. 1 Ch. PI. 340. In this case, as appears by the record, the proviso is an entirely distinct clause, not connected at all with the obligatory part of the instrument, and not qualifying it, because it is devoid of meaning. See Warner vs. Broadus, 2 J. J. Marsh, 264.
    It does not appear from the proviso that there was any contingency connected with the plaintiff, in which the amount of the bond was not to be paid. If there was, it devolved on the defendant to show it, and the plaintiff was not bound to notice the proviso at all in his declaration.
   Dickinson, J.,

delivered the opinion of the court.

The plaintiff in error contends that the action is properly brought. Though debt is, in general, a concurrent remedy with covenant, the rule is not universal. Where a deed contains a contract, expressed or implied, for the payment of a sum certain, the party may elect his remedy. So on a penal bond for the performance of covenants and agreements. But where the contract is under seal, and one engages with the other, that some act hath or hath not already been done, or for the performance or non-performance of some specified duty, without any penalty contained therein, it is different. So, if a certain event takes place, he will pay so much money. No particular words are necessary to create a covenant or condition, and it is immaterial, in point of construction, whether the clause of condition be placed in the instrument, prior, or posterior to others. Co. Litt. 20, 3, 6; 2 Mod. 72; Cro. Eli. 348. Contracts are always to be so expounded as to carry into effect the intention of the parties; which intention is not to be collected from the language of a single clause, but from the entire contents of the deed, and according to the reasonable sense and construction of the words. However general the words of a covenant may be, if standing alone, yet, if from other covenants in the samé deed, it is plainly and irresistibly to be inferred, that the party could not have intended to use the words in the general sense which they import, the court will limit the operation of the general words. 2 Bos. & Pull. 574—5. Gilbreath purchases of Kuyken-dall a pre-emption, for which, he covenants to pay. him five hundred dollars within one month from the date of the deed, upon condition that the pre-emption is good and lawful, and passes so as to secure to him the benefit of it. But if if should not be good and lawful, and so pass as to effect the object of the purchase, then the object is defeated, provided he returns the pre-emption to Kuykendall. In the case of Thorpe vs. Thorpe, 1 Ld. Ray 665, and M. 12 Mod. 445, 1 Salk. 171, and Lutw. 75, it was decided that, where a day certain is appointed for the payment of money, if the day is to arrive after the time in which the consideration ought to be performed, for which the money is made payable, the performance of the consideration is a condition precedent to the payment of the money. The contract then, between Kuykendall and Gilbreath, so far as regards the fulfilment of the covenant, should have been consummated prior to the time of payment. Though the terms in which the deed is worded are somewhat loose and ambiguous, there is no difficulty in ascertaining the meaning and intent of the parties. However correct the argument of the plaintiff in error may be, as regards a proviso, when it comes up properly, by plea, as matter on an issue of fact, it is not applicable when the case stands on demurrer as to the legal construction to be given to a deed. The question of dependent or independent contracts, certainly does arise in this case, for there was a condition precedent to be fulfilled by Kuykendall, before he could make Gilbreath liable upon his covenant. If one party was ready and offered to perform his part, and the other neglected or refused to perform Ms pari, he who is ready and offers, has fulfilled his engagement, and may maintain an action of covenant for the default of the other. Judgment affirmed.


text:
    Jesse Jeffrey against Ficklin and Bennett.
    EkRok to Lawrence Circuit Court.

    Wagers that áre contrary to public policy, or immoral, or that affect the feelings, interests or characters of third persons, are contrary to sound policy, and not recoverable by law.
    Wagers upon elections, then pending, are calculated to endanger the peace and harmony of society, and have a corrupting influence on the public morals, and have uniformly been considered as contrary to sound policy.
    A stake-holder, who pays over money bet upon an election, in opposition to the express notice and order of the better, does so at his peril; nor can a stake-holder .refuse to deliver up the wager, if demanded by the party, before the final result of the election.
    No action in affirmance of such a wager can be maintained; but one in dis.affirmance of it, which treats it as void, and aims to prevent the other party from retaining any benefit which he has derived from the contract, maybe maintained.
    This was an action originally commenced before a justice of the peace, and by appeal taken up to the circuit court. The facts disclosed in the bill of exceptions show that Jeffrey and one Bagley agreed to bet -a saddle upon an election thereafter to take place, and being in the store of Ficklin and Bennett, inquired of Bennett the price of a saddle, and were informed by him that the price was $24 00. Bennett sold the saddle to them, and Jeffrey and Bagley each executed his sealed note for the sum of $24 GO, and delivered it to Bennett, as a stake-holder, together with the saddle, and directed him if a certain man should beat for a certain office, then to deliver to Bagley the saddle and his own note; and make him pay for the price of the saddle. And if a certain other man should be elected to said office, to deliver the saddle to Jeffrey, together with his own note; and hold Bagley’s note and make him pay it as the price of the saddle. Some time after this agreement was made and before the election took place, JeSrey and Bagley agreed to withdraw the wager and rescind the bet in the presence of Bennett; and Bagley called upon Bennett for their notes, which Bennett refused to give up. Bagley then said he would let it stand as it was. After this, and before the election was decided, upon which the wager had been made, Jeffrey notified Bennett not to give up the saddle to Bagley, as the wager had been drawn, and he would not hold himself responsible or bound to pay for the saddle if Bennett delivered it to Bagley. The man on whom Bagley wagered was elected, and Bennett delivered over to him the saddle and his note, and commenced this suit against Jeffrey upon his note.
    Upon this state of facts the circuit court rendered judgment against JeSrey on the noté.
    Tkapnalx. and Cocke, for plaintiff in error:
    Our statute against gambling is exceedingly broad and comprehensive, and makes all promises, agreements, notes, bills, bonds, or other contracts, judgments, mortgages, or other securities, or any other conveyances whatsoever, made, signed, given, or granted, drawn, or entered into, or executed by any person or persons whatsoever, where the whole or any part of the consideration of such promise or agreement, conveyance or security, shall be for money or other valuable thing whatever, laid or betted at cards, dice, &c., &c.,or any wager whatsoever, or for reimbursing or repaying any money lent knowingly, or advanced at the time or place of such play, &c.,&c., shall be utterly void and of no effect, to all intents and purposes, whatsoever.
    But without our statute the wager in this case is illegal and void by the common law. In the case of Bunn. vs. Biker, 4 J. R. 426, which was an action to recover money bet upon an election, the court say: “It was held in the case of Jones vs. Randall, (Cowp. 37), and De Costa vs. Jones, (Cowp. 729), and in several of the more recent cases cited on the argument that wagers against the principles of sound policy are void. I consider this to be emphatically a wager of that kind.” In Vischer vs. Yates, 11 J. R. 23, which was also an action to recover money bet upon an election, Kent, Ch. I, says: “ The wager in this case was illegal.” This was so decided in Bunn vs. Riker, and that decision was afterwards repeated in Lansing vs. Lansing, 8 J. R. 454. And when we consider the importance of popular elections to the constitution and liberties^of this country, and that the value of the right consists in its independence, moderation, discretion, and purity, with which it is exercised, we cannot but be disposed to cherish a decision which declares gambling upon such elections to be illegal, as being founded in the clearest and most incontestable principles of public policy.,
    The counsel for the plaintiff admits that as between plaintiff and Bagley the contract or agreement was void. But insists that Bennett stands in a different relation. That with him the consideration given for the writing obligatory, was the saddle, and that he is in no degree affected by the illegal contract between plaintiff and Bagley. This position cannot be maintained. The testimony shows he was cognizant of the illegal nature of the contract, and the part he took in it made him to all intents and purposes a particeps criminis. Although he was not a principal in the illegal agreement, he yet aided and assisted in its consummation, and was to derive a profit from it.
    There was no absolute sale of the saddle either to plaintiff or Bagley, and whether the one or the other should pay for it, was made contingent by the express agreement of all parties upon the determination of their bet. The responsibility of the plaintiff, therefore, to pay the amount of the note sued for, does not arise from any absolute sale to him, but from the decision of the bet against him. Or, in other words, a gambling and fraudulent contract against public policy, and good morals must be persisted in and consummated before his liability becomes fixed. The defendants, in accepting the note, with a full knowledge of all the facts, and. consenting to look to the plaintiff for payment only in the event of his losing his wager, made themselves parties to the gaming and immoral transaction, and received the note stained and vitiated by an illegal and fraudulent consideration.
    It is conceded by the counsel for the defendants, “if Bennett had depended upon the result of the election for the price of his saddle, it would have been a matter solely of chance and consequently void.” But, it is contended that the case is relieved from all fraud or illegality inasmuch as Bennett had made an absolute sale of the saddle, and only relied upon the result of the election to determine .which of the two should pay for it. We cannot see the force of this distinction. The principle is the'same, whether it was left to chance to decide the price of the saddle or the person who was to pay it.

      In either case the right to recover could onlj be made out bj and through an illegal and void contract. In this case plaintiff and Bagley had both executed and delivered their writing obligatory to the defendant, for the price of same saddle, both cannot be liable; defendants sold the saddle to them for twenty-four dollars, and of course could not exact from them the payment of forty-eight dollars, without violating every principle of fair dealing and common honesty. Besides, by the express agreement of all parties, only one of the notes was to be paid. We again ask who is it? ■ How, and when would defendants know which note to proceed upon to recover the costs of the saddle? This could not be ascertained without the completion and decision of the gaming contract. If rescinded by the parties to it, which of the two would be bound to pay? How could the contingency happen upon which the liability of either would become fixed ? It is' manifest, it never could happen; and if so, the defendants have admitted no right of action could accrue. The issue of the election itself could not impose the liability; the parties must have looked to the. decision of the bet, and although the decision of that bet depended upon the result of the election, yet it was the loss of the wager, and not the election of this man or that, which the parties regarded as the true event, the happening of which would determine whether plaintiff or Bagley would be bound to pay the note, since when the bet was rescinded no liability could attach to either. But it is contended that the parties to the wager could not withdraw the bet or exercise any control over the wager, without the consent of Bennett, as his right might thereby be destroyed.
    This we cannot but consider as a most suicidal argument on the part of the defendants. It fully admits and establishes the proposition we have been laboring to build up. The contract about the saddle was so intimately interwoven and connected with the gambling contract, as that the one depended on the other; and for this very reason the taint of illegality and fraud attaches itself to both. The law in its anxiety to repress vice and promote the general welfare of the State and of society, will never lend its aid to assist in compelling the performance of a contract against public policy and good morals. On the contrary it will ever afford a locus pcenitentiae to those who may repent of their intentions to perpetrate an offence against the laws. Hence all the authorities, without a single exception, that we. hare been able to find, lay it down as a general principle that either party to a gaming contract may rescind it before the event has happened which is to decide the wager. And many authorities of the highest consideration go even farther than this. Plaintiff and Bagley had clearly, then, the right to withdraw their bet. And the law cannot recognize or protect any right or interest in the defendants when that right can only .be supported by enforcing others to persist in an act subversive of public and private morality, and positively forbidden by the law itself.
    If defendants have so far participated in an illegal contract as to make their rights in any degree dependant upon it, they must abide the consequences of their acts. In violating the law they have placed themselves beyond the pale of its protection. .There is another view of this case that presents an insurmountable obstacle to the defendants’ recovery. The testimony shows they were stake-holders, and that before the event that was to decide the wager, they were notified not to pay the saddle over to Bagley, as they had withdrawn their bet, at the same time informing them if they did so he would not he responsible for the price of it. The defendants, contrary to those instructions, handed over the saddle to Bagley after the result of the election was known. In doing so they acted in their own wrong and became themselves liable to the plaintiff for the value of the stake deposited with them.
    The duty and liability of stake-holders are ably discussed, and dll the authorities carefully examined in the case of Vischer vs. Yeates, J. R. 23, above referred to: Kent, Ch. /, says the English rule íb the true rule upon this subject. On the disaffirmance of the illegal and void contract, and before it has been carried into effect, and while the money remains in the hands of the stake-holder, each party ought to be allowed to withdraw his own deposit; the court will then be dealing equitably with the case; it will be answering the policy of the law and putting a stop to the contract before it is perfected.” This case settles the principle, that if a stake-holder, before the money has been paid over, is notified not to pay it over, and does so, he is responsible for the amount deposited bj the party so notifying him.
    The saddle, or the plaintiff’s note for the price of it, was the deposit placed by him in the hands of the stake-holders, and they having paid it over to the other party after being notified not to do so, became responsible to the plaintiff for the value of his deposit, the very thing the defendants are attempting to recover of him in this suit. .
    It is manifest to our minds that this note was founded on a gaming consideration, or upon no consideration at all; the plaintiff never received any thing of defendants for it. The saddle, which is the alleged consideration, was handed over by defendants to a third person contrary to the express instructions of Jeffrey. Having of their own wrong disposed to another person of the very saddle for the purchase of which they allege this note was executed, they can have no right in law or equity to compel the plaintiff to pay the note. In thus handing over to Bagley the saddle, the defendants show conclusively they did not look to any contract of bargain and sale between Jeffrey and themselves as the consideration of the note.' It is evident they looked to the gaming contract and the loss of the wager as imposing upon the plaintiff the obligation to pay the note,'and it was in fulfilment of that illegal and fraudulent contract, and not of a contract of bargain and sale that the saddle was delivered to Bagley. Even if it had been a contract of sale, to bind Jeffrey, the property sold must have been delivered to him or his agent, and in giving it up to a third person contrary to his express instructions they have no claim against Jeffrey, either in law or good conscience, for the payment of the purchase money.
    Thomas Johnson, Contra:

    The judgment of the Circuit Court in this case must stand or fall upon the first section of the statute concerning gambling contracts, contained in Steele and McCampbell, and which statute will be found on the 204th and 5th pages of said code. That law provides that all contracts, founded upon a gaming consideration, either in whole or in part, shall be void, and that any money knowingly lent or advanced at the time or place of a play, or cock-fighting, or other sport or pastime, to any person or persons gaming, betting or wagering, or shall at such time and place, so play, bet or wager, shall be utterly void, and of no effect. The only question presented by the bill of exceptions for the consideration of this court is, whether the contract sought to be enforced by the defendants in error, is bona fide, or in fraud of the law against gaming. I think the court will readily perceive from the testimony that the case is neither etnbiaced by the letter or the spirit of that law. If the writing had been executed by Jeffrey to Bag-ley, and upon the trial it had appeared that the consideration was of a gambling nature, or in any way tinctured with a game, there can be no doubt but that it would have been absolutely void, and no recovery could have been had upon it. And it is a proposition equally clear, that in case Bennett had loaned money to Jeffrey, or advanced him money for the purpose of having bet or wagered upon a game, or sport, or pastime, or cock-fighting, at the time or place of such cock-fighting, or play, or pastime, that the consideration would have been illegal and consequently could not have been enforced. I will now endeavor to ascertain whether Bennett sustains such a relation to Jeffrey as to vitiate the contract, and prevent a recovery upon it. The testimony is, that Bagley and Jeffrey were in the store of Bennett on the 5th of August, 1838, and that sometime thereafter the election was to take place, upon the result of which Bagley and Jeffrey had agreed to wager said saddle. There is nothing in the testimony to show that Bennett was cognisant of the fact that Bagley and Jeffrey intended to wager said saddle upon the result of an election, until they had perfected the purchase, nor does it appear that the transaction happened at the time and place of the game, or of the event upon which the saddle was wagered. The distinction between this case and those contemplated by the act referred to, must be manifest at first sight. If Bennett had depended upon the re-result of the election for the price of his saddle, it would then have been a matter solely and exclusively of chance, and consequently void; but when it is considered that he had made an absolute and unconditional sale of the saddle, and only relied upon the result of the election to determine which of the two should pay the price of it, the case is at once relieved of even the slightest tincture of fraud or illegality. The rule of law is that all things which are capable of being reduced to a certainty, are certain. In this case the payment of the purchase money did not depend upon the result of the election; it was wholly immaterial and unimportant to Bennett in whose favor the election should terminate, and all that concerned him was, that the election should take place. I am free to admit, that in case the election had not haye taken place, the action could not have accrued, as it would have been impossible to determine which of the two should be held responsible for the value of the saddle; but the election having taken place, that which was uncertain has become certain, and that event, upon the happening of which, the liability should be forever fixed, has accrued. A contract entered into to take effect upon the happening of a contingency that is impossible in the course of nature, is clearly void; but not so with a contract which is to take effect upon the happening of an event that may or may not take place. It was urged before the court below, that though the contract might be binding between Bennett and Jeffrey, yet as Bagley and Jeffrey agreed to withdraw the wager, that therefore Jeffrey was discharged. This would doubtless have been a good defence if urged by one of the immediate parties against an action instituted by the other, and it would have been equally available against Bennett, if it had appeared in evidence that he had agreed to rescind his contract with the parties. But we respectfully insist before this court that any agreement between the parties to the wager, could not by possibility affect the rights of Bennett, unless assented to by said Bennett. We insist Jhat Bagley and Jeffrey had no manner of control over the wager, without the consent of Bennett, as his rights might thereby have been destroyed. It was not a consideration annexed to the sale of the saddle, that in case Bagley and Jeffrey should feel disposed to withdraw the wager, that Bennett should lose the sale of his saddle, but on the contrary, a positive and unconditional sale was made, and nothing could deprive Bennett of the benefit of said sale, but his own voluntary act, or the failure of .the contingency upon which the liability should~become definitely fixed. Bennett sold the saddle to Bagley and referred (not the debt), but the debtor, to chances. The doctrine contended for by the plaintiff in. error, if sustained by the court, would involve a manifest absurdity, as it would then be impossible to make a good and valid contract, to take place in future. Suppose, for the sake of argument, that Bennett had commenced suit against Jeffrey before the happening of the election, spoken of in the bill of exceptions; what would have been the defence set up by Jeffrey? Would he have pleaded the gaming act? We presume not. But we think he would have pleaded that the instrument sued upon, was an escrow, and could not be enforced until after the happening of the election,, as that event was necessary to fix the liability upon him. This would have been a good defence to an action brought before the happening» of the contingency; but when the contingency has happened, and the contract become complete, he is driven from that defence, and the last resort is to endeavor, by a sort of legerdemain, to change the real meaning of the contract, which is bona Jide, so far as Bennett is concerned, and stretch the statute so as to reach the case. The court will perceive from the statute, that, even in case the saddle had been loaned for the purpose of being wagered upon the result of the election, that Bennett could have recovered its value, unless it had been'done at the time or place of the transaction wagered upon. I regret that there are no authorities directly in point; however, I infer from the silence of the books upon the subject, that the case has ever been considered too clear to admit of litigation.
   Dickinson, J.,

delivered the opinion of the court:

Wagers, contrary to public policy, that are immoral, or affect the feelings, interests, or characters of third persons, are contrary to sound policy, and are not recoverable in law. In a country where elections are frequent, and free, as in this, every means should be adopted to maintain them pure. Wagers operate on the passions, and influence the parties, by the strongest motives of pecuniary interest, to support, and induce others to’vote for the same person. The freedom of choice and unbiassed action is destroyed. The disposition to select men for their integrity and capacity, no longer exists. And the corrupting influence proceeding from this species of gambling is unfortunately felt, to a very great extent, by every class of society. The consequences resulting from it, are to be deeply deplored: and therefore it is, that the courts uniformly discountenance actions where they are founded in iniquity and injustice. Is the claim of the defendants in error of a character that will permit them to come into court with clean hands and pure consciences, and ask aid in the recovery of a claim for which no consideration has been received? All the parties to the record were participes criminis. Bennett, the partner of Fick-lin, as stake-holder of the notes, was cognizant that they were bet upon an election then pending; and, though both parties had agreed, prior to the result, to rescind the wager and withdraw the notes, Bennett refused to deliver them up. And, notwithstanding Jeffrey notified him that he would not pay it, in any event, he retained possession, and, upon the result of the election, delivered the saddle to Bagley, the winner, and sued Jeffrey upon his note, which was for the payment of the saddle, and obtained judgment in the circuit court, on appeal. Betting upon elections then pending, as calculated to endanger the peace and harmony of society, and to have a corrupting influence upon the public morals, has uniformly been considered as contrary to sound policy; and so it was decided in England, upon a wager on the election of a member to Parliament, 1 T. R. 56, Allen vs. Hearne. The whole doctrine is ably reviewed and sustained in the case of Yates vs. Foot, 12 J. R. 1. As to the character in which the defendants in error stand, Comyn, in his Treatise on Contracts, 30, 46, says, that, “It is a general rule, that if the contract be executed, and both parties in pari delicto, neither of them can recover, from the other, the moneys so paid; but if the contract continues,and the party is desirous of rescinding it, he may do so, and recover back the deposit.” And this distinction is taken in the books,viz: “Where the action is in affirmance of an illegal contract, for the performance of an engagement malum in se, it can in no case be maintained. But where the action is in disaffirmance of such a contract, and, instead of'endeavoring to enforce it, presumes it to be void, and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, then it is consonant to the spirit and policy of the law that he should recover.” A stake-holder who pays over money bet upon an election, in opposition to the express notice and order of the better, must do so at his peril; nor can a stake-holder refuse to deliver up the wager, if demanded by the party, before the final result of the election. The contract was executory. The wager probably originated in hasty zeal and the impulse of passion, and when, on cool reflection, they were desirous of rescinding it, Bennett refused to return the stake as, by law, he was bound to do. Having a knowledge of the whole transaction, and the consideration for which the note was given, the circuit court erred in giving judgment in favor of the plaintiff. The judgment is reversed,


author: Bicktnson, J.,

text:
    Isaac Taylor against Patterson, Adm’r of Hamilton.
    Error to Johnson Circuit Court.

    A covenant whereby A sells B an improvement on public land, and covenants to prove up a pre-emption right to it, and convey to B, and to deliver possession within twenty days from the date of the contract, and B covenants to make A a deed for another tract, (which A was at the time cultivating for B’s benefit), so soon as he could get a right from government, with further covenants, that if B failed to do so, he was to re-deliver possession of the first tract to A, and receive from him the second tract; that if the pre-emption right was affected by this sale, B was to pay A $50 for labor done on the tract previous to the contract; and that if B failed to make the deed, each should pay rent to the other; B from the date of the contract, and A for the time while in possession, and each should pay the other for improvements made during the time. These covenants are not dependent or mutual and concurrent, but indepen. dent.
    Upon the covenant, that A “ will make a warrantee deed as soon as he can get a right from government,” a breach, that he has not made such deed, nor hath he procured any title from government, is not good.
    And in sotting out a breach of such a stipulation, an averment of special request is necessary, and its omission is fatal on demurrer.
    Isaac Taylor brought an action of covenant in the court below, against Abner Á. Hamilton, on a covenant, of which the tenor is as follows: Taylor has bargained and sold to Hamilton his pre-emption right to the fractional quarter he lives on, with all his improvements and appurtenances belonging thereto; which pre-emption right Taylor is to prove up according to law, as is allowed him under the act of 1829, and convey to Hamilton, his heirs or assigns. Taylor also agrees to give Hamilton peaceable possession of the same as a rentor, in twenty days from date, for which Hamilton agrees to make Taylor a warrantee deed, as soon as he can get a right from government to the quarter section adjoining, below the fraction which Taylor lives on, which Taylor is now improving under Hamilton’s direction. In case Hamilton fails to make Taylor a right to his quarter section, as soon as a right can be had from government, then Hamilton is to return Taylor his old possession, with rent from date, after Taylor allowing him a fair price for any additional improvement, and Hamilton is to take the new improvement, and pay Taylor a fair price for his labor done on the quarter section, and have a fair rent for its use while Taylor has it in possession. In that case, Taylor will owe Hamilton $50, for work done by him on the improvement. In case Taylor’s pre-emption right is affected by his moving off the fraction and giving Hamilton possession as a renlor, then Hamilton shall lose the benefit of the pre-emption. Sealed by each, and dated November 24, 1835.
    The declaration states the covenant as follows: That Hamilton covenanted to make a warrantee deed, as soon as he could procure a title from government, and if he failed to do so, then to return him his old possession, with rent from the date: and that Hamilton was to pay Taylor a fair price for his labor done on the quarter section, in consideration of which Taylor covenanted to sell and convey to him his pre-emption right and improvements, and to prove up the pre-emption right, and to give him possession as a renlor in twenty days.
    The declaration then avers, that he did give possession, and prove up his pre-emption right, and has been always ready, and yet is, to convey to Hamilton the fractional quarter section, that he went on the quarter section agreed to be sold him by Hamilton, and theron has expended a vast quantity of labor in improving and building, to the value of four hundred dollars.
    It then avers, as a breach, that Hamilton has not made him a war-rantee deed, or procured any title from the government, or paid him any rent, or paid him for building and improvements.
    Oyer having been craved and granted, Hamilton demurred to the declaration, and his demurrer was sustained, and final judgment rendered on the demurrer.
    Taylor, for plaintiff in error:
    The covenants are mutual and concurrent, to be performed at the same time; and it was not necessary for the plaintiff to aver the execution of a conveyance, or any other act as a condition precedent performed. 1 Ch. PI. 313; Bennett vs. Ecc’rs of Pixley, 7 J. R. 249; Obermeyer vs. Nichols, 6 Bing. 159; 1 Saund. R. 320 n; 10 East 555, 563; 12 East 369; 1 Camp. 53; 10 East 295; 6 Com. Dig.
      Pleader C. 50, 51, 52, 53, 54; 10 J. R. 90, 268; 5 T. R. 409; 1 Camp. 377, 378, 389.
    The covenants on the part of Hamilton were conditions precedent, and are so alleged in the amended declaration; which of course, in that state of the case, required no other averment but the breach, as there was no oyer upon the demurrer to the amended declaration, to show the contrary.
    Walker and Pike, Contra:

    This is an action of covenant brought in the court below, by the plaintiff in error. As appeared from the covenant declared upon, when given on oyer, the. parlies seemed to have agreed to make a mutual exchange of the tracts of land. Neither party had obtained title to his tract — Taylor claiming a pre-emption, and Hamilton not having obtained a patent. Taylor being already in possession of Hamilton’s land, it was agreed that he should give Hamilton possession of his land, prove up his pre-emption thereto, and convey the land to Hamilton — -for which Hamilton was to make him a deed for his, Hamilton’s land. If, however, Hamilton should fail to make such a deed, after obtaining title to the land, then the parties were to re-exchange, each party taking his own land, each' party paying rent to the other, from the date of the covenant, up to the time of re-exchange, and each party being paid for improvements made by him in the mean time on the land of the other. By this covenant, the first act to be performed, devolved upon the plaintiff; various mutual dependant duties then devolved on each party. The declaration did not allege a performance of the various conditions precedent by the plaintiff to be performed, nor any excuse for non-performance, nor the whole consideration on which the defendant’s covenants were founded. The demurrer of the defendant to the plaintiff’s original declaration having been sustained, the plaintiff by leave amended. The defendant demurred to the amended declaration, which was liable to the sanie objections, and the demurrer was again sustained, and final judgment was thereupon rendered for the defendant. The plaintiff assigns for error the judgment of the court sustaining the demurrer.

      The defendant in error contends that the demurrer to the declaration was rightly sustained by the court below.

      First — because there is variance between the covenant given on oyer and that declared on. The declaration states, that, in consideration of the covenant of Hamilton, Taylor made all the covenants on his part. This is not only a variance, but a most material one, for it makes all of Taylor’s covenants to be conditions subsequent, whereas some, at least, of them, are conditions precedent. The slightest variance in so material a matter, will be fatal on demurrer.
    The declaration states that it was covenanted, that in case Hamilton should fail to make Taylor a title to his quarter section of land, so soon as he should obtain title from goverment; in that case Hamilton was to return to Taylor his old possession, with rent from the date of the covenant. The covenant, as it appears on oyer, is, that he was to return the old possession, with rent from the date of the covenant, after Tayloi allowing him a fair price for any additional improvements made, &c. By the covenant, therefore, this payment of rent was not to accrue and become a duty, until after the plaintiff had allowed him a fair price for additional improvements made. To omit this clause was a material omission, a material variance between the instrument declared on, and that given on oyer. Even if it were not a condition precedent, it is at least a material qualification of the defendant’s covenant, and its omission is a fatal defect.
    The declaration states that Hamilton was to pay Taylor a fair price for his labor done on said quarter section; whereas the covenant was, that Hamilton was to pay such fair price, and have a fair rent for the use of the same, while Taylor should have had the same in possession. This is likewise a material omission and a variance.
    The covenant is, that Taylor was to prove up his pre-emption right, and convey to Hamilton, his heirs and assigns. The declaration does not contain any certain and sufficient description of this part of the covenant, but, in legal contemplation omits a material portion of it, to wit: the covenant for conveyance.

      Third — because there are conditions precedent, stated in the covenant, to be done on the part of the plaintiff, and because neither performance of such conditions precedent, nor any excuse for non-performance, is shown.
    The covenants contained in the instrument given on oyer, may be divided into two classes or sets, which we will consider separately. The first is, that Taylor had sold Hamilton a certain pre-emption right and improvement, which pre-emption right he was to prove up, and convey to Hamilton, his heirs and assigns, and to give Hamilton peaceable possession of the same as a rentor in twenty days from the date of the covenant. For which, Hamilton was to make Taylor a warrantee deed, as soon as he could get title from the government, for a certain quarter section of land. Is there not, here, a condition precedent to be performed by Taylor? He was to do certain acts for which Hamilton was to do certain other acts. Is not Taylor’s covenant all a condition precedent? It was in consideration of the performance thereof by Taylor, that Hamilton was to perform his part. Taylor was already in possession of Hamilton’s premises, and therefore had already received consideration sufficient for putting Hamilton in possession of his improvement. The words “ for which,” cannot, therefore, be construed to extend and apply only to the latter clause of this part of Taylor’s covenant, to wit: That he would put Hamilton in possession 5 that he would do so, would not be consideration sufficient to hind Hamilton, having already given Taylor possession of his quarter section, to go on and make him a title also. Nor is this construction unjust. It was as fair that Taylor should first convey, as that Hamilton should do so. The latter had already taken the first step, by giving possession. The parties therefore, contracted that Taylor should take the next step, by making a deed,/or which, Hamilton was also bound to convey. The conditions in this part of the covenant are clearly mutual and dependent. The parties meant to exchange lands, one tract for the other. Hamilton having given possession, Taylor was to do the same. Each was to obtain title from the government and convey. There are no technical words, which make a condition precedent or subsequent, but it depends on the good sense and plain understanding of the contract. If it appear by the agreement that the plain intent of either party was to have the thing to be done to him, performed before his doing what he has. underta.-ken, performance must be averred. It is clear that these parties intended their covenants to be mutual and dependant. Barnes vs. Madan,2 J. R. 145; Green vs. Reynolds, ib. 207; Cunningham vs. Morrell, 10 J. R. 203; Jones vs. Gardner, ib. 286; Gazley vs. Price, 16 J. R. 287; Hardin vs. Kretsinger, 17 J. R. 293; Robb vs. Montgomery, 20 J. R. 15; Alexander's Executors vs. Mann, 6 Mon. 361; Conn vs. Lewis, 5 Lit. 66.
    There should, therefore, have been in the declaration in this case, either an averment of conveyance, or of an offer to convey, and a refusal by Hamilton to convey. To aver a readiness to convey, is not sufficient. It is never sufficient, except when the power to perform, of the person averring, depends on the other party. West vs. Em-mons, 5 J. R. 179. This averment of performance, or of an offer to perform, must be specific and certain. Alexander vs. Wales, 6 Mon. 325; Read vs. Cisney, 4 Lit. 137.
    Lord Mansfield said, in Kingston vs. Preston, Doug. 689, that, “When covenants are mutual and concurrent, the plaintiff must aver that he was ready and offered to perform, and defendant neglected or refused to do so.”
    So Lord Holt said, in Callonel vs. Briggs, 1 Salk. 113, that, “ though there be mutual promises, yet if one thing be the consideration of the other, there a performance is necessary to be averred, unless a certain day be appointed for performance.” And see Thorpe vs. Thorpe, 1 Salk. 171. Lock vs. Wright, 1 Sir. 571; Collins vs. Gibbs, 2 Burr. 899; Green vs. Reynolds, 2 J. R. 207.
    The rale is now conclusively settled, that, “ Where the covenants on one side go to the whole consideration of the covenants on the other, they are mutual and dependant covenants, and performance must he averred.” Dakin vs. Yñlliams, 11 Wendell, 67; Duke of St. Albans vs. Shore, 1 H. Bla. 270; Pordage vs. Cole, 1 Saund. 320 n.; Goodi-sonvs. Jfunn, 4 T. R. 7@1; Campbell vs. Jones, 6 T. R. 570; Glaze-brook vs. Woodrow, 8 T. R. 366; Hall vs. Cazenove, 4 East 484; Kendall vs. Talbot, 2 Bibb 614; McCall vs. Welsh, 3 Bibb 290; Baker vs. Legrand, Lit. Sel. Cas. 253; Shephard vs. Hubbard, 1 Bibb 494; Carter vs. Woolright, 1 Marsh. 585; Pollard vs. McClain, 3 Marsh. 25; Goldsborough vs. Qrr,8 Wheat. 217; Hopkins vs. Young, 11 Mass.
      304; Acherby vs. Vernon, Wittes 157; Reab vs. Moore, 19 J. R. 327; Gardiner vs. Corson, 15 Mass, 500; Couch vs. Ingersoll, 2 Pick. 292.
    The second part of the covenant refers to a time considerably subsequent to the first part. If Hamilton should fail to make title to Taylor, so soon as he should obtain title from the government, then he was to return Taylor’s land to him, and pay him rent from the date of the covenant, after Taylor had allowed him a fair price for such improvements as he should have made. Here the allowance of the price and value of improvements made, are clearly a condition precedent to the payment of rent by Hamilton. He was not bound to pay the rent, until after Taylor should allow him a fair price for improvements. Is there any averment either of such allowance, of an offer to allow, or even of readiness to allow? None. The declaration is clearly defective.
    There is but one other clause to be considered. Hamilton bound himself to take the new improvement, and pay Taylor a fair price for the labor he should have done thereon, and have a fair rent paid him by Taylor for the time the latter had been in possession. The parties were to be put in statu quo. Each was to return the land which had been exchanged, and each was to pay rent and be paid for his improvements. Was Hamilton bound to pay Taylor for labor done, until Taylor either paid or offered to pay him the rent? Of course not; yet nothing of the kind is averred. The covenants are all clearly mutual and dependant, and performance, or an offer to perform, must be averred.

      Third — there is no sufficient breach. Hamilton’s covenants were briefly as follows: He was to convey as soon as be obtained title from government. If he failed to do that, he was to pay rent, pay for labor done, and return Taylor’s place to him. It is averred in the breach that he did not convey, nor did he procure title from the government. He was not bound to make title until he could procure title from the government, and therefore it was no breach that he had not conveyed, unless he had either procured the title from government, or neglected to do so when in his power. A man cannot procure a patent when he pleases.
    It is a general principle that where one breach is well assigned, it is sufficient. In this case there is but one breach. The covenant must have been -wholly broken, before there was a breach, and therefore if any part of the breach is bad, the whole is bad. Suppose Hamilton had simply refused to convey. There was still no breach, because by the covenant he had the alternative in his power, to give back the land and receive his own again, paying rent, áre. Suppose he had simply refused to pay rent, or to pay Taylor for his labor. It is clear that this would be no breach unless he had first failed to convey, when in his power — because if he had not so failed, he was not bound to pay rent, &c. In order therefore to make a complete breach, it should have been alleged — first, that Hamilton had refused to convey, when he had it in his power so to do, and second, that after such failure and refusal, he also refused to pay rent, &c. The obligations raised by the latter part of the covenant did not accrue until'Hamilton should fail to convey, after having obtained title from the government. As it is not averred, either that he had obtained title from the government, and yet had not conveyed, nor, that being able to obtain such title from government, he had. failed and refused so to do, no breach is alleged.
    As the plaintiff therefore, neither alleged that the defendant had broken, nor that he himself had kept the covenants, the demurrer to his declaration was properly sustained.
    The rules of pleading in this case clearly subserve the ends of justice. The nature of the contract, as it appears from the covenant, clearly shows that neither party intended to do an independent act in the matter. That each was to convey to the other were mutual acts — that in case of failure to convey, each was to pay rent to the other, and a fair price for his labor, were mutual acts, and to be performed atone and the same time. Does any one suppose that Hamilton was bound to pay Taylor rent for one place, and a price for his labor on another, unless Taylor should offset the rent and price of labor which he was bound to pay ?
    The demurrer having been put in in apt and proper time, and having been by the court below rightly sustained, the judgment of the court below must be affirmed — which is respectfully submitted.
   Bicktnson, J.,

delivered the opinion of the court:

Taylor sold his improvement upon which he claimed a pre-emption right under the act of eighteen hundred and twenty-nine, and covenants to prove up the pre-emption, according to law, and convey it to Hamilton. He was also to deliver him possession of the improvements within twenty days from the date of the contract. And Hamilton was to make Taylor a warrantee deed for an adjoining quarter section, (which Taylor was, at this time, improving for the benefit of Hamilton,) as soon as he could get a right from government. If Hamilton failed so to do, he was to re-deliver the possession of the fractional quarter to Taylor, and receive from him that of the quarter section. If the pre-emption right was affected by the sale, he was to pay Taylor the additional sum of fifty dollars for the labor done on the quarter section, previous to the contract. It was further covenanted that, in the event of a failure on the part of Hamilton to make the deed, each party should pay rent to the other. Hamilton from the date of the contract, Taylor while in possession, and each to pay the other for improvements made during the time.

The contract is ambiguous, but such is the only reasonable and common-sense construction, that can be given, to carry into effect the intention of the parties. The covenants cannot be dependent; the performance of the one does not depend upon the performance of the other, for Taylor covenants that he has a pre-emption right, and that he will prove up and convey it. Whereas, Hamilton only agrees that he will convey so soon as he can procure a title from government. The period for the performance of one, may arive before it is possible that the other can contract; therefore, it is not a prior condition, that Hamilton shall convey first. They are not mutual and concurrent, because the first act is contemplated to be done by himself, by proving up and conveying the pre-emption. They must, therefore, be independent, and either may recover damages for a breach of the covenant in his favor, and the non-performance of one, is no excuse for the other.

The whole question turns upon the breach, which must be governed by the nature of the stipulation. It should be assigned in the words of the contract, or in words co-extensive with the import and meaning of it, if, in so doing, a distinct breach is thereby shown, but must not vary from the substance and effect of it. The covenant is, “ That Hamilton will make a warrantee deed as soon as he can gat a right from government; and upon this covenant the whole question turns. The breach is, “That he did not make the plaintiff a warrantee deed to the quarter section, in said covenant mentioned; nor hath said defendant procured any title from government for said quarter.” There is no allegation in the declaration, that Hamilton has ever procured the title, or of his inability to do so, in consequence of the land not being subject to sale, or that it was owned by another person ; or that he neglected and refused to procure the title when he could have done so; and,it is therefore, clearly insufficient., Nor is there any notice of request. In all cases where actual notice of any fact is necessary, or a special request is, either by the terms or by the nature of the contract, the condition of the liability, such notice in the one case, and such request in the other, must be specially averred in the declaration. Com. Dig. Pl. C. 69, 73; 14 East 500; 5 T. R. 409.

For without such averments, no complete right of action can appear from the declaration. The want of such a special averment is also fatal. When such an averment is necessary to be stated, the general averment, although often requested, is not sufficient. 1 Saund. 33, n. 2; Wallis vs. Scott; 1 Strange, 88; that being but matter of form. As the declaration shows neither a sufficient breach, nor a special averment of request, the judgment is affirmed.


author: Ringo, C. J.,

text:
    Cyrus Hathaway against John Smith.

      Appeal from Chicot Circuit Court.

    Where an appeal is prayed and allowed, more than thirty days previous to any term of tliis court, the appellant is hound by law to cause to be filed, in the office of this court, at least ten days before the first day of such term, a transcript of the record and proceedings in the case.
    If he does not, upon the appellee producing the certificate of the clerk of the court below, to the effect that an appeal had been entered, and recognizance given, as required by law, this court is bound to affirm the judgment, unless good cause to the contrary is shown.
    When such a ¡notion is made, the court must decide, upon the cause shown by the appellant, whether due diligence has been used. He must, therefore, satisfy the court, either by his own affidavit, or by some other competent means, that he has used reasonable diligence, as well as appropriate moans, to have the record filed within the proper time, or as soon as he could procure and cause it to be done.
    Showing that immediately after the expiration of the term of the court below, at which the cause was tried, the clerk sent the transcript by mail to the clerk of the Supreme Court, does not show reasonable diligence.
    It was his duty to cause the transcript to bo filed. The means of conveyance was left to his option, and he made his election at his peril.
    If the transcript failed to reach its destination within the proper time, it was his duty immediately to have procured another transcript.
    On the twenty-third day of November, 1839, the appellee obtained judgment in an action of ejectment, in the circuit court of Chicot county, from which the appellant, on the same day, prayed an appeal to this court, which was granted, and a recognizance, with security, entered into for the prosecution of the appeal. No transcript of the record having been filed previous to or at the last January term of this court, to which the appeal was, by law, returnable, the ap-pellee, at the succeeding July term, produced in court the certificate of the clerk of the circuit court, that an appeal had been entered, and a recognizance given, as required by law, on the 23d day of November, 1839, and moved the court to affirm the judgment, upon which the court entered a rule against the appellant, to show cause, on the third Monday of October, then next, why the judgment should not be affirmed, for his failure to file a transcript, within the time prescribed by law; which was duly served on the appellant, on the fourteenth day of September, 1840. No cause was shown under the rule until six days after it was returnable, when the appellant produced and filed a certified transcript of the record, with a separate certificate of the clerk of the circuit court of Chicot, stating that he made out the transcript of the record and proceedings in the case immediately after the November term, 1839, which transcript, he understands, never came to hand. On this the appellant moved the court that this cause be docketed, as of the July term, and be proceeded in, &c. And the appellee, two days after, renewed his motion to affirm the judgment.
    Pike, for the motion to affirm:
    Trapnall and Cocke, Contra:

   Ringo, C. J.,

delivered the opinion of the court:

The appeal appears to have been taken more than thirty days before the first day of the last January term of this court, and was, by law, returnable at that time.

And the appellant was bound, by law, to’ have caused to be filed in the office of the clerk of this court, at least ten days before the first day of that term, a transcript of the record and proceedings in the cause, and, upon his failure to do so, this court, upon the 'production, by the appellee, of the certificate of the clerk of the circuit court, that an appeal had been entered and a recognizance given, as required by law, is bound to affirm the judgment of the circuit court, unless good cause to the contrary can be shown. Rev. Stat., ch. 117, sec. 23, 24, p. 644.

The court, therefore, in cases presented as this is, can only decide upon the cause shown by the appellant, whether he has used such diligence as the law requires of him in the due prosecution of his appeal. If he has used such diligence, the case may be adjudicated upon his appeal, notwithstanding the transcript of the record was not filed within the time prescribed by law; if otherwise, the law is imperative that the judgment shall be affirmed. But the question as to what facts and circumstances constitute, in- law, a sufficient shewing of cause to exonerate or absolve the appellant from the consequences of his failure to cause a transcript of the record to be filed within the time prescribed by law, remains to-be decided.

The Legislature, by enacting the statutory provisions before cited, evidently intended to require of the appellant, in all cases, reasonable diligence in the prosecution of his appeal; so as to prevent, in every event, any unnecessary 05 vexatious delay of justice in consequence of such appeal, and to afford the appellee, at the same time, a remedy ample in itself, for the preservation and enforcement of his rights, if the appellant should be guilty of culpable negligence, or any unwarrantable delay in the removal of his case to the Supreme Court for adjudication on the appeal; in which event, the appellee is at liberty to take advantage of the default of his adversary; and by simply producing to the court such certificate of the clerk as is mentioned in the statute, before cited, may have the judgment, from which the appeal has been taken, affirmed; and thereby end the litigation. And of such final determination the appellant cannot have any just reason to complain, because it is but the legal consequence of his own default, produced either by culpable negligence, or an unwarrantable design to delay the final adjudication of the Supreme Court upon the appeal. The appellant, therefore, in order to obviate the legal consequences of his failure to comply strictly with the requisitions of the statute prescribing the time within which a transcript of the record shall he filed, must, by his own affidavit, or some other competent means, satisfy the court that he has used reasonable diligence, as well as appropriate means, in the prosecution of his appeal, to have the transcript of the record filed within the time prescribed by law, or as soon after as he could procure or cause the same to be done. Has the appellant, in this case, established such diligence? In our opinion he has not. He has only shown the certificate of the clerk of the circuit court, stating, in substance, that immediately after the expiration of the term at which the judgment appealed from was given, he made out, and on or about the fifth day of December, 1839, transmitted, by mail, a transcript of the record in this case, directed to the clerk of the Supreme Court of Arkansas, at Little Rock, which, he understands, never came to hand.

This may be true, and yet, the appellant, for aught that appears to the contrary, may be guilty of gross negligence in regard-to the prosecution of his appeal. It was his duty to cause the transcript to be filed. The means of conveyance is left to his own option, and he must make his own election at his peril. If the transcript failed to reach its destination within the time prescribed for him to cause it to be filed, he was bound to know or ascertain that fact; and, if he intended to prosecute his appeal, to obtain another transcript and cause it to be filed within a reasonable time, so as to prevent any unwarrantable delay, and to have his case regularly before the Supreme Court for adjudication, as speedily practicable. This, the appellant failed to do, and, therefore, be cannot be regarded as having used such diligence as was required of him, by law, in the prosecution of his appeal. It may also be remarked that it does not appear that the clerk, in making out and transmitting, by mail, the transcript of the record, acted by the direction or under the authority of the appellant, who does not, in fact, appear to have used any exertion whatever to bring his case before this court for adjudication, until he was served with the rule to show cause why the judgment against him should not be affirmed, notwithstanding two terms of this court had then intervened, and nearly ten months had elapsed after the appeal was taken. Nor did he show any cause whatever against the rule, on its return, as he was bound by law to do, but wholly failed to appear in obedience thereto; and subsequently, without assigning any reason for his failure to appear to, or answer the rule, six days after the same must have been made absolute, and the judgment affirmed, if it had been moved, as it ought regularly to have been, on the return of the rule, filed his motion to have the case docketed, as of the July term, and that the same might be proceeded in and adjudicated upon his appeal, without taking any notice whatever of the rule against him. We are, therefore, of opinion that he has not shown such diligence in the prosecution of the appeal, as is required by law. His motion must be denied, the rule against him made absolute, and the judgment affirmed with costs.