The opinion of the court was delivered by
Kennedy, J.
The judgment given on the demurrers was no doubt wrong, but then the error is not such as the defendant below can complain of, for it is in his favour. The court upon being satisfied that the pleas demurred to were not sufficient in law to bar the plaintiffs of their action, ought, instead of a judgment of respondeat ouster, to have given a judgment quod recuperet. The judgment of respondeat ouster is merely interlocutory and never given either upon a demurrer or trial of a plea in bar. It is confined to a plea in abatement put in before, any plea in bar has been pleaded, and decided upon demurrer in favour of the plaintiff. See Tidd’s Prac. 693, 694, 8th edition. For if a plea puis darrien continuance be pleaded in abatement, after a former plea in bar, the judgment must be peremptory, whether given upon demurrer or on trial; because after pleading in bar, the defendant has answered in chief, and therefore can never have judgment to answer over. See Beaton v. Forrest, Aleyn, 65, 66. Abbot v. Rugesley, Frem. 252. Gilb. C. P. 105. 2 Tidd’s Pr. 902, 8th, edition. 1 Chitty’s Pl. 571. Bul. N. P. 310. In Stoner v. Gibson, Hob. 81, b. it is said, it was agreed, t-hat if the defendant pleaded in bar to the plaintiff’s ac-tion a plea which was good, and the plaintiff demurred to it, and the defendant pending the demurrer, pleaded another matter, puis darrein continuance, which is decided against him, either on demurrer or on trial, still he would be entitled to the benefit of his first plea, because it being a good bar to the plaintiff’s action, and standing confessed by him upon the record, he can not have a judgment in his favour against his own confessio'n. This, if correct, would seem to form an exception to the general rule laid down in the book above cited. But whether a plea puis darrein continuance can be received at all after a demurrer, has been doubted in Staple v. Heydon, 6 Mod. 7, by Powell J ustice; in Martin v. Wyvill, 1 Stran. 493, per Eyre Justice, who cited Moore, 871, and in Sparks v. Crofts, 1 Lord Raym. 266, per Holt, Chief Justice, although he said, Stoner v. Gibson, Hob. 81, was so. But according to the. report of this case in Moore, 871, pl. 1210, which is directly contrary to Hobart, it was resolved that a plea puis darrein continuance could not be pleaded after demurrer. See 1 Chitty’s Pl. 572, 573.
That the plea of nil debet upon demurrer in this case was bad, can admit of no doubt. If the bond declared on here had only been introduced as inducement to the action, nil debet might, or might not have been a good plea. In debt for rent claimed under a lease by indenture it is a good plea, because the indenture is not considered the gist of the action. It does not acknowledge a debt like an obli[93] gation; the debt accrues by the subsequent enjoyment of the demised premises under it, and it will be received as evidence to shew the relation of landlord and tenant, between the plaintiff’and defendant, and the amount of rent, and when payable, Gilb. C. P. 62, 63. But this action is grounded upon the bond itself, and therefore nil debet was not a good plea. See Jones v. Pope, 1 Saund. 38, and the case cited in note 3.
The plaintiffs below alleged as cause for their demurrer to the next plea, that the matters therein contained, were such as might have been given in evidence under the general issue, which had been previously pleaded.
I am inclined to believe that the attorney of the plaintiffs was mistaken in this when he assigned it as cause for demurrer; because, it was not sufficient in law to avoid the bond, and therefore could not have been given in evidence on the general issue; but had it been sufficient for that purpose, then I think, without a doubt, it would have been admissible on the general issue; but still I think, notwithstanding that, the plea would also have been good, and the defendant below upon the demurrer of the plaintiffs to it would have been entitled to a peremptory judgment, that would have discharged him at once from all further claim of the plaintiffs upon the writing here declared on. The substance of the plea is, that the defendant below, with Jacob Bauer and George Keim, agreed to join in the execution of a bond to Peter Roth alone, one of the plaintiffs below, to indemnify him, &c. and positively refused to be bound to John Roth, the other plaintiff, in any manner or form whatever to indemnify him, &c. either severally, or jointly and severally with Peter Roth, and that neither of them being able to read the writing, nor to understand the English language in which it was drawn up, they all signed it upon trust, and delivered it to Peter Roth, without having heard it read, or explained, or interpreted, or having requested it to be so in any way, believing that it was written in exact conformity to their previous agreement. The plea does not state how or why the deviation from their agreement, in writing the bond came to be made, whether by fraud of the plaintiffs below, or mistake of the scrivener, nor attempt to account for it in any way. Now if these circumstances thus set forth, had been sufficient in law, to have prevented the instrument from becoming their deed, notwithstanding they had signed, sealed and delivered it, without requesting it to be read, interpreted or explained in any way, the plea would have been good according to the established rules of pleading, because it would then have disclosed matters unnecessary for the plaintiffs to have proved on the plea of non est factum, in order to have established the writing to be the deed of the defendant below, but yet sufficient to have shewn that it never was his deed. He in his plea confessed the signing, sealing and delivery of the instrument, in conjunction with Jacob Bauer and George Keim, which is all that the plaintiffs below have charged in their declaration, and is like[94] wise all that was necessary for the plaintiffs in the first instance to have proved on the general issue: and besides this, for the purpose of avoiding the bond he has also set forth the other matters, which were not immediately and necessarily connected with the sealing and delivery of a deed, and of course such as the plaintiffs on the general ' issue could not have been required to give evidence of; and had they only been sufficient in law, to have avoided the bond, it would have been clearly competent for the defendant to have pleaded them specially as he has done. See 1 Chitty’s Pl. 442, 443. It would have fallen within the principle of the case of a deed delivered as an escrow, to be delivered to the party in whose favour it is made upon the performance of a certain condition ; he however gets it into his possession without the performance of the condition, and without the consent of the party who executed the deed, all which may be either pleaded specially or given in evidence on the general issue, 1 Chitty’s Pl. 424, 425; or where the obligor is a monk or a feme covert, it may be given in evidence under the general issue or a special non est factum, Com. Dig. title Pleader, 2 W. 18. In these latter cases it has been so settled on' the ground of an entire want of capacity on the part of a monk or a feme covert to execute a deed; but still as the'party did actually seal and deliver the writing, that may be admitted, and'the incapacity set forth to shew that it is still not his or her deed in law. So I apprehend that as it is equally necessary that the assent of the mind of the party, as that sufficient capacity in contemplation of law, should attend the sealing and delivering of the writing in order to make it his deed, there can be no good reason why the same form of pleading may not be adopted.
. In this state the defendant is at liberty to plead as many pleas in the same action as he pleases, just as the plaintiff may insert counts in his declaration ; and I am not aware that the circumstance of two counts in the same declaration, or that of two pleas in the same action, being substantially the same, will render either bad on demurrer.
But I consider the plea of special non est factum in this case insufficient, upon the authority of the second resolution in Thoroughgood’s Case, 2 Co. 9, b. where it was resolved, that if an illiterate man, seals and delivers, a deed without requiring it to be read or the contents of it. to be made known to him, although it be penned contrary to his meaning, yet it is good and unavoidable. The same doctrine is laid down in 1 Wood’s Conv. 374, Powell’s ed. title Execution of Deeds, sec. 12, A. It was settled in Manser’s Case, 2 Co. 3, that the reading of the writing to an illiterate man, who is about to execute it as his deed, or the interpretation of it to one unacquainted with the language in which it is indited, is not necessary to make it a valid deed, unless he require it to be read or expounded. It is also laid down to the same effect by the author of the Touchstone, vol. 1, 54. From the terms of the plea it is plainly inferible &hat no such request was made; and it contains no averment that [95] the writing was mis-read or the contents of it mistated in anyway whatever, which being according to the resolution in Thoroughgood’s Case, the very essence and gist of such a plea, ought therefore to have been introduced, if it were so, according to every rule of pleading as well as of reason. If however the fact would not have warranted such an averment, as I presume it would not, otherwise it would have appeared" in the plea, then this form of plea ought not to have been resorted to. I however have no doubt but a party executing a deed under such circumstances, where it is made clearly to appear that the contents and effect of it are materially different from what it was actually agreed they should be, whether the deviation arose from design and fraud, or from mistake on the part of the scrivener, would, if innocent himself, be entitled to relief in equity. See Clarkson v. Hanway, 2 P. Wms. 205, where the circumstances, that instructions were given in the absence of the grantor by the grantee, and none at any time given by the grantor, who was an old man of weak mind, to the drawer of the deed for preparing it, and that it did not appear to have been read to him at the time of his executing it, and the consideration mentioned in the deed appearing to be inadequate to the value of the estate granted, were held to be badges of fraud, and ground for relief.
In this state we have no court of equity, and therefore it has been considered that whatever would be deemed sufficient ground for relief against a bond in such court, may here be made the ground of defence in a court of law, and given in evidence under the plea of payment with leave to give the specjal matter in evidence; or if the bond be conditioned for the performance of certain covenants, or collateral matters, the defendant having prayed and obtained oyer of the condition, and pleaded performance thereof, with leave to give the special matter in evidence, may under the same, give all such matter for relief in evidence; or in either case may plead it specially, Swift v. Hawkins, 1 Dall. 17. Baring v. Shippen, 2 Binn. 154. Latapee v. Pecholier, 2 Wash. C. C. R. 180. M‘Sherry v. Askew, et al. 1 Yeates, 79. Bender v. Fromberger, 4 Dall. 439. Webster v. Warren, 2 Wash. C. C. R. 456. Roth v. Miller, 15 Serg. & Rawle, 105. And taking into view the course of proceeding peculiar to us, I must confess, that my mind at times has not been altogether free from doubts ; but upon full deliberation, 1 incline to think that the plea, in order to constitute a perfectly good defence against the bond in equity, ought to have been explicit, and that it is defective in not stating the transaction more fully, and giving to it some definite character, by shewing particularly how the deviation from the previous agreement in drawing the bond came to be made; whether by fraud or mistake, and that it was done without the knowledge or assent of the defendant, for without all this, in case of a demurrer to his plea, I do not see how he could claim to have a judgment in his favour unless he has stated in his plea all the circumstances with [96] such precision that the court may see whether it has arisen from fraud or mistake, and decide, distinctly, upon which it is that he is entitled to relief. I am the better satisfied with this conclusion, as the defendant has already been permitted on the trial of the issues in fact in this case, to give in evidence to the jury, under the direction of the court, all the special matters and circumstances connected with the giving and obtaining of the bond, upon which he founds his claim to relief, and after a full hearing they have decided against him. The difficulty in this respect which has been presented here induces me to believe, that gentlemen of the bar ought to be very cautious in demurring to pleas which set forth special matters and circumstances from which fraud or mistake may be inferred to have been practiced, or to have taken place in the obtaining of the writings upon which the suits are brought. Unless the plaintiffs are willing to admit the truth of all such special matters and circumstances, a demurrer ought never to be thought of, otherwise it appears to me, to be a perilous eourse, and one that may defeat a very just cause of action.
The next error assigned is in the judgment of the court below upon the demurrer to the plea, that one of the plaintiffs had made an assignment of all his property to a trustee for the benefit of his creditors, and obtained a discharge under the insolvent laws of this state. The insufficiency of this plea to prevent the further maintenance of the action by the plaintiffs below, is too plain even to admit of doubt or argument. The 4th section of the insolvent law of the 20th of March, 1814, declares that “ no suit brought by such debtor and pending at the time of the appointment of said trustee or trustees shall abate thereby, but the same shall be continued and the money or property recovered therein shall be paid or given to the said trustee or trustees.” The law does not require that the names of the trustees shall be substituted for that of the plaintiff in such cases, nor that they shall appear in any form upon the record. Neither has it been the practice to substitute them on the record for the plaintiff. The argument urged in support of the plea is, that the trustee appointed never having given the security required by the law, there was therefore no person in being, who was authorised to carry on the suit and to receive the money when recovered. If this had been the only difficulty which the defendant below conceived that he had to encounter at the time he put in this plea, it appears to me, that the court below could have granted to him all the relief that he could have wished for in this respect, upon his paying the money demanded into court, with the costs incurred up to that time; the court would then have made an order staying all further proceedings in the suit: but upon no principle whatever could the discharge of the plaintiff under the insolvent laws, furnish a pretence for a plea against the further maintenance of the action. If Peter Roth, the insolvent, had been the only plaintiff in this suit and the defendant had satisfied the court below that he had a good [97] defence against the plaintiff’s claim on the merits, and that he would have to encounter considerable expense in order to establish it, the court possibly in its discretion might have staid the further proceedings in the action, until some one having authority to manage and direct the suit on the part of the plaintiff should appear. But in this case John Roth, the other plaintiff who appears to have been the plaintiff really damnified, was perfectly competent to direct and carry on the action and to have received and given a good acquittance for the money when recovered and paid; so that there was not the slightest reason for claiming protection from the summary and equitable powers of the court. The cause specially assigned for the demurrer to this plea, is, that the matter therein set forth, if it could have availed, ought to have been shewn to have occurred since the last continuance of the cause, instead of which it appears, on the face of the plea itself, to have taken place long before. If this plea were otherwise good, this is not an objection which goes either to the form or the merits of it. It is a mere irregularity in point of time in putting in the plea, and no cause for demurrer, whatever it might have been for setting it aside if the court below had been moved for that purpose; which power perhaps may be fairly questioned since the act of the 21st of March, 1806. See Anonymous, 2 Vent. 58. Wilson v. Wymonsold, Sayre, 268; and Morgan v. Dyer, 10 Johns. 161.
I can scarcely avoid thinking that the defendant below and his counsel had very little confidence in the merits of the previous pleas, or otherwise they never would have put their defence in jeopardy by resorting to this last plea; for considering it in the light of a plea puis darrein continuance, it would in England at all times have been deemed a waiver of all prior pleas. The rule is well settled there, that after a plea in bar, if the defendant plead a plea puis darrein continuance, it is a waiver of his bar, and no advantage shall afterwards be taken of it. Nor shall he be permitted to recur to and to proceed on the former plea. Barber v. Palmer, 1 Salk. 178, S. C. 1 Ld. Raym. 693. 12 Mod. 539. 1 Chitty’s Pl. 571. 2 Tidd’s Pr. 902. The law probably may be different here, where the defendant is at liberty to plead as many pleas as he pleases, and to hold fast by all. On this however, I do not wish to be understood as giving any decisive opinion, but have suggested it as a caution against frivolous pleas puis darrein continuance.
The fifth error complained of does not seem to have been presented by the evidence in the cause, but if the point had been raised by the evidence, the court was right in its answer.
There is not the least ground for complaint in the sixth error assigned. In the assignment of this error a very material part of what the court below told the jury in relation to the point of which the court was then speaking, is omitted, to wit, “ the measure of damages is the amount of the injury actually sustained,.” Taking then this clause in connection with that which is made the ground [98] of exception in this error, the principle laid down by the court to the jury, in regard to estimating the amount of the damages in case they should find for the plaintiffs below, was as favourable for the defendant as he could ask.
Neither do I think that the plaintiff in error, has any cause for complaint in respect to that part of the charge of the court to the jury, which is made the basis of the seventh and last error; because the court at the same time that they gave the direction complained of, recommend to'the jury, in case they should find for the plaintiffs below, to regulate the amount of the damages by the amount of the moneys actually paid out by the plaintiffs with interest thereon from the times of their payment, which was adopted by the jury, and was certainly the most favourable rule for the plaintiff in error, that could have been laid down.
I however am far from being convinced that the court below would have been in error if they had gone to the full extent of all that is complained of, and told the jury, unqualifiedly, that they ought to assess the damages by the amount of the several sums of money, with the interest thereon, which had become payable anterior to the commencement of this action upon the obligations referred to in the condition of . the bond of the defendant below, for which the plaintiffs there were bound as the sureties of David Musselman, so far as the same remained still unpaid by David Musselman or the plaintiff in error; for the condition of the bond in this action, is not merely that the plaintiff in error, and his co-obligors, should indemnify and keep harmless the defendants in error, But likewise that the said David. Musselman should pay, or cause to be paid, the aggregate of the obligations therein mentioned, in which the plaintiffs below were his sureties, .on the days and times appointed by the same for that purpose. Now if Musselman failed to pay these sums of money, or any of them, on the appointed days and times, there was a breach of the condition of the bond in suit the instant that he so failed and the plaintiff in error became liable to be sued upon it; and as often as he failed to pay after his first delinquency, there was a new breach of the condition on the part of the plaintiff in error, of his bond. Breaches to this effect of the condition of this bond, have been assigned by defendants in error, in their declaration. To these breaches certainly the plea of non damnificatus would have been no answer; for if it had been put in and demurred to, the defendants in error would have been entitled to judgment. Such too would seem to have been the opinion entertained at first by the attorney of the defendant below;' for instead of this plea, a performance of the condition was put in which met these breaches directly. Sergeant Williams, in his note (1) to the case of Cutler v. Southern, 1 Saund. 116, who has referred to a number of authorities on the subject, lays down the following distinction, that “ this plea, that is, non damnificatus cannot be pleaded where the condition is to discharge or acquit the plaintiff from such a bond or other particular thing, for there the defendant must [99] set forth affirmatively the special manner of performance. But it is otherwise where the condition is to discharge and acquit the plaintiff from any damage by reason of such bond or other particular thing, for that is in truth the same with a condition to indemnify and save harmless.” In the case before us, one part of the condition was that Musselman should pay the several sums of money for which the defendants in error were bound as his sureties at the time specified for that purpose, and thereby in effect discharge and acquit them from their obligations; with which nothing but a punctual payment of the moneys or otherwise a formal acquittance, obtained for the defendants in error from their obligations on account of Musselman, could be considered even a substantial compliance. I think it also very evident that the great object of giving the bond in question, from the terms in which the condition is drawn up, was, to prevent the defendants in error from paying the moneys out of their own property, and especially to prevent its being taken in execution for that purpose, by putting it in their power to proceed by suit upon the bond from time to time to collect the money of the plaintiff in error and his co-obligers, as Musselman became delinquent.
In the case of Holmes et al. v. Rhodes, 1 Bos. & Pul. 638, it was held, that non damnificatus could not be pleaded to debt on a bond conditioned for the payment of a certain sum of money at a certain day to a certain R. W., for the payment of which the plaintiffs were bound in an obligation with the defendant as his sureties, and thereby acquit, release and discharge the said plaintiffs, &c.; showing distinctly on its face that it was a bond of indemnity. The court said, “ that the plea of non damnificatus was no answer to that part of the condition by which the defendant undertook to pay the sum for which the plaintiffs bound themselves, and was therefore bad.” The only shade of difference between this case and the one under consideration, is, that in the latter the condition of the bond is, that Musselman, who was not bound in it, should pay certain sums of money at certain days to certain persons to whom the obligees were hound with him in obligations as. his sureties for the payment; and in the former, the condition was that the obligors should pay. Whether the condition be that the obligor or anotlier shall do the particular act required to be done at a specified time, does not change or vary the character or nature of the condition; in either case, if the act be not done by the time appointed, the bond will become forfeited and the obligee entitled to sue upon it. And it appears to me that the Supreme Court of the state of JVew York, have gone still further in the case of Chace, administrator of Stranahan v. Hinman, where it was held that an indemnity against any liability for damages or expenses would entitle the party to sue on his indemnity, and to recover to the full extent of his liability, without his having paid or discharged it. 8 Wend. 452. These observations on this last point, are not given as the opinion of the Court, for the jury having adopted a different principle, under the recommendation of the court [100] below in ascertaining the amount of the damages, rendered it unnecessary for the court to express one upon it. The Judgment of the Court below is affirmed.
Judgment affirmed.