1826. June. V. answer deny or disprove this? It does not deny the conversation, and that he did admit that he had seen the reChapman ceipts, and that he was satisfied they were in the hand-wriHarrison. ting of Wallace. But, he denies that he told the complainant, after seeing the receipts, that he was satisfied; but, on the contrary, he was dissatisfied then, and is now, and will be so, until he receives the money; but, that he told the plaintiff so is not averred. As, however, he told him he was satisfied that the receipts were in the hand-writing of Wallace, he might well have supposed that was all that was necessary to satisfy him about. But, the defendant may well have been dissatisfied at not having received the money, and remain so until he does receive it; and this in fact is all he substantially says, and that in answer to a bill which calls upon him to answer "unevasively and particularly," The truth is, that he did then believe it was a good defence. He says, "although from the first appearance of the papers, it would seem that if the proper defence had been made, the complainant ought to have been allowed the said receipts as offsets against the executions, yet upon a proper examination it will be found that he ought not; for, that they bear date after the return day, &c." Had he given them this proper examination, and come to the conclusion above, at the time of this conversation? In charity, I think not; for it would have been a direct fraud to have answered in such a way in relation to them, as might have been construed into an admission that they were a defence. He ought to have said, "I have given these papers a proper examination, and, though I admit they are the hand-writing of Wallace, they will not avail you. They are after the return day." He would then have been told, "But, I will prove that these payments There is a great immorality were before the return day." June. v. tween man and man, but on the ground of policy in put- 1826. ting an end to controversies by one suit, when that can be done; as a punishment to the negligent, not as a premium Chapman to injustice; for injustice, abstractly speaking, it certainly Harrison. is. The punishment is often greatly inadequate to the of fence, and will not be imposed, when from fraud, accident or surprise, the defence has not been made at law. I think sufficient accident or surprise, if not fraud, exists in this case; and had the party now shewn, as I think, in all probability, with proper diligence he might have shewn, that he had a defence at law, I would grant him relief. He has hitherto failed to do this; and I think I go far enough in saying, that this controversy ought not further to be protracted; but that the bill, on this ground, ought to be dismissed. Both decrees must be reversed, and the bill dismissed.* 4 316 11L 578 1826. June. 9g 162 BAILEY V. CLAY, &c. The failure to allege the performance of a precedent condition, in a declars- The general rule is, that no party can be required to prove, upon the trial, any In a contract for the purchase of land, where no time is limited for the convey. A general undertaking to pay money, without appointing a day of payment, obliges the party to pay immediately; but an undertaking to do a collateral act, as to convey lands, entitles the party to perform it at any time during his life, unless hastened by the request of the other party. The stipulated price of property sold, is the proper measure of damages, for the non-performance of the contract, if no evidence is offered to shew that some other standard is more proper. This was an appeal from the Superior Court of Law for Halifax county, where Romulus M. Saunders and Henry M. Clay brought an action on the case, against William Bailey. The action was founded on an agreement, by which the said Saunders and Clay should sell and convey to the said Bailey, forty-five feet of a lot in the town of North Milton, at the rate of forty dollars for each front foot; one half at the following Christmas, and the other half twelve months thereafter, and that the said property was to be improved by the said Bailey in some convenient time. The plaintiffs, in their first declaration, say, that they always have been, and still are, ready and willing to execute a good and sufficient conveyance of the said lot, &c. Yet, the said Bailey did not, and would not, pay the said sum of money, or any part thereof, nor did improve the said lot, but hath hitherto neglected and refused to do June. the same, to the damage of the plaintiffs $5000, &c. But 1826. this count does not allege any assumpsit by the defendant. There are also two general counts. The defendant pleaded non-assumpsit. Afterwards, the plaintiffs obtained leave to amend their declaration, and filed a new one setting forth the agreement, laying an assumpsit, and alleging a breach. To this. declaration, the defendant likewise pleaded non-assumpsit. Issue was joined; and at the trial, the defendant demurred. to the plaintiff's evidence; in which the plaintiff joined. The defendant excepted to the opinion of the Court, who had instructed the jury that the price agreed on by the parties, must be the measure of the said damages. The jury gave damages for the breach of contract, taking` the price fixed by the agreement as their guide, and dependent on the judgment of the Court on the demurrer to evidence. This verdict was set aside by consent, and upon a new trial, the defendant filed four bills of exceptions, one of which was like that above mentioned. The other three are not important, as they are not noticed by this Court. The jury found a verdict for the plaintiffs, and assessed their damages to eighteen hundred dollars, with interest, &c. that sum being founded on the agreement. The Court gave judgment for the plaintiffs, and the defendant appealed. Leigh, for the appellant. Stanard, for the appellee. June 8. Judge GREEN. The plaintiffs in the Court below, originally filed two several declarations, with distinct conclusions, "to their damage of $5000, and therefore, they bring suit, &c." The first of these declarations, set out the written contract between the parties, and alleged that they had always been Bailey v. Clay, &c. June. v. 1826. ready, and were still ready, to perform the contract on their part; but, that the defendant had failed and refused to Bailey pay the purchase money of the lot; but alleged no promise Clay, &c. or assumpsit by the defendant. The second declaration follows the first, and is connected by these words; and afterwards, to wit," &c. and alleges an assumpsit by the defendant, in consideration of a lot sold to him by the plaintiffs; and then follows a count upon a general indebitatus assumpsit, for money had and received. Then follows the assignment of breaches upon the two last counts, and the conclusion "to their damage," &c. To this declaration, or these declarations, the defendant pleaded non assumpsit, and issue was joined. At a subsequent Term, the plaintiffs had leave to amend their declaration, and the record proceeds, "which was accordingly awarded, and which declaration so amended, is in these words and figures following, to wit." This declaration is perfect in all its parts, having the regular commencement, statement of the cause of action, and conclusion. It contains a single count upon an assumpsit, in consideration of the agreement set out in the declaration. The defendant had liberty to plead de novo, and pleaded non assumpsit, upon which, issue was joined. If it were material to the decision of this cause, I should think, that the amended declaration, plea, and issue thereupon, were substitutes for the former pleadings, which were no longer a part of the record, although one of the exceptions speaks of the first count of the declaration, as one that was in issue before the jury. It is, however, unnecessary to decide this question; since, if the first set of pleadings are considered as a part of the record, any errors in them, which might have been fatal upon demurrer, are cured by the Statute of Jeofails. The great objection insisted on by the appellant, is, that upon the true construction of the contract, a conveyance of a good title to the lot sold by the appellees to him, was a condition precedent to their right, to demand the pur |