Gale v. O'Brian

13 Johns. 189

• Court: New York Supreme Court
• Decided: May 15, 1816
• Status: Published

Opinion

Per Curiam.

This case -has now been argued, and we find no reasons to- induce a change of opinion from'that formerly-given," when. the cqse- vhs-submitted without,argument. (12 Johns. Rep. 216.) . The court did not theh advert to the second nóte to-2 Sound. 187.; in that note 'Mr.: -Williams corrects, what he had said in his note to \ Sound. 58. ; and he seems to. think, that the conclusion of the declaration in covenant, after-an assignment-of. breaches, is. incorrect. - -We-agree'that it is' not a neat technical conclusion-; but it ¡dtíés' hot■ follow-that-' If furnishes a-cause óf-demurrer. - Nothing shóft- of a Special de-, inurrer can reach the supposed imperfection in the conclusion of the declaration; for, certainly, it is not matter of substance ; and, we think, even a special demurrer would not avail. '

The declaration’ is in debt. It demands the penalty of 'the bond in the debet et detinet, and it sets out thé bond truly; and,, after setting forth the condition, it avers a breach of the covenants. ' Legally and-technically speaking, the stipulations’in the condition are covenants, on which an action of covenant •might have -been brought; but calling those stipulations cove-' nants did not render the action ’an. action of covenant.;, its quality had been fixed before, by demanding the penalty as a newyork, debt, in the usual way.

Judgment for the plaintiff.