must construe the instrument by itself, and cannot look to the cases in 4 Peters 205, 9 Id. 418, and 12 Id. 145, or anything else dehors the instrument, for explanation. So construing it, the words in parenthesis are insensible, and cannot affect the obligation of the express promise to pay the money. They must be treated and rejected as surplusage. An obligation is construed most strongly against the obligor. He must take care to use intelligible words to express any condition precedent he may wish to impose on his obligation. Of course, the obligee is duly authorized to receive a sum of money which the obligor expressly promises to pay him; there being nothing in the instrument to show how or by whom the obligee is to be otherwise duly authorized. If the words can derive such explanation from the light of extrinsic facts as would give them effect, it devolves on the obligor to allege and prove the facts in his defence. The shifting of the burden of allegation and of proof is the only consequence of his neglect to express his intention plainly, provided he has so expressed it as that, with the aid of extrinsic facts, any effect at all can be given to it. The instrument is not a deed inter partes between Lloyd and Schofield. The latter is not a party to it, and his name is not so mentioned therein as to show that he has any interest in it. As to the second count, the only objection taken to it is that it does not sufficiently aver performance of the condition precedent, supposing the words in question to create one. It avers such performance in the very words of the condition, to-wit, that the plaintiff "is duly authorized to receive " of the said John Lloyd the said sum of $1,100, with interest thereon as aforesaid. It is a general rule that a breach of a covenant or other contract may be assigned in the very words of the contract. 3 Rob. Prac. 590-597, 4 Id. 8. And that is generally the best and safest mode of assigning it. In Martyn v. 1862. January Term. Smith's adm'r V. Lloyd's ex'x. 1862. January Term. Smith's adm'r V. Lloyd's ex'x. Clue, 83 Eng. C. L. R. 681, Lord Campbell said, in answer to an objection to an assignment of this kind: "No authority was cited to show that an allegation of the breach following the words of the covenant was insufficient; and we find no principle for so holding. The defendant must be taken to have understood the application of the covenant he chose to make." A breach need not be assigned in the words of a covenant, but may be assigned in equivalent words; as in Fletcher v. Peck, 6 Cranch's R. 87, 127, cited in 3 Rob. Pr. and 4 Id. 6, where it was objected to the declaration that the covenant was that the legislature had a right to convey, and the breach was that the legislature had no authority to convey. Marshall, C. J., said: "It is enough that the words of the assignment show unequivocally a substantial breach. The assignment under consideration does show such a breach. If the legislature had no authority to convey, it had no right to convey." Generally the same rules which apply to an assignment of breaches also apply to an averment of performance of a condition precedent. If there be any difference, the rules which apply to the latter are less stringent than those which apply to the former. The courts, especially in England, have gone very far in sustaining the sufficiency of averments of performance of conditions precedent. 3 Rob. Prac. 571, 578. It is true that it is sometimes insufficient to follow the words of the contract, but it is necessary to be more specific. And it is also true that there are cases which decide that the declaration should not present for the determination of the jury what is matter of law, or partly of law and partly of fact; as that a party was duly appointed administrator, or was duly appointed receiver; but it should state what in particular was done; so that, if the fact be admitted, the court can determine whether he was duly appointed; or, if issue be joined on the allegation, the jury can answer as to its truth. 3 Rob. Prac. 530, and the cases cited. But whether or not, according to the strict and technical rules of pleading, the averment, being in the very words of the deed, is sufficient; or should have been more specific; or should have been only of matter of fact; certainly the defect, if there be one, is only of form and not of substance, and, since special demurrers have been abolished, is not now ground of demurrer. The Code, ch. 171, § 31, provides that " on a demurrer (unless it be to a plea in abatement) the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defence that judgment, according to law and the very right of the cause, cannot be given." The important words, "whether it has been heretofore deemed mispleading or insufficient pleading or not," were added at the last revisal, and seem to be a very material extension of the operation of the law. The most that can be said of the defect in question is, that it might have been deemed insufficient pleading before the enactment of the Code; and not that any thing is omitted in the declaration so essential to the action that judgment, according to law and the very right of the case, cannot be given. We are therefore of opinion that the words in parenthesis do not create a condition precedent; the performance of which it is necessary for the declaration to aver, and therefore the first count is good; and if they did, that performance of the condition precedent is sufficiently averred in the second count, which is therefore good; and one, if not both, of the counts being certainly good, the demurrer to the declaration cannot be sustained. The result of the foregoing opinion is that the judgment must be reversed, the excuse for not giving oyer sustained, the demurrer thereto overruled, and the defendant required to answer without having oyer. JUDGMENT REversed. 1862. January Term. Smith's adm'r V. Lloyd's ex'x. 1862. January Term. Richmond. BARKSDALE & als. v. NEAL. (Absent Allen, P. and Lee, J.) March 5th. 1. A return upon a summons, "executed in person," signed by the deputy sheriff with his own name and that of his principal, shows that the summons was actually served on the defendants; and therefore, if it is defective, the defect can only be taken advantage of by plea in abatement.* 2. QUERE: If a return upon a summons, of "executed," merely, would be held to show it was served on the parties? The case, as to the question involved, is stated in the opinion of Judge Moncure. Macfarland and Roberts, for the appellants. MONCURE, J. This is a supersedeas to a judgment of the Circuit court of Halifax county, reversing a judgment of the County court setting aside and reversing an office judgment confirmed of the latter court in an action of debt, brought by the defendant against the plaintiffs in error, on a promissory note. The summons was directed to the sheriff of Halifax county, and was returned, "Executed in person.-Fielder Cage, D. S., for James R. West, Sheriff." The common order was entered at February rules, 1858, (to which the summons was returnable) *For the statutes on the subject see the opinion of Judge Moncure. and was confirmed at the following March rules, and the office judgment, not having been set aside, became final on the 22d of the same month. A motion was made, on notice, to set aside and reverse this judgment on various grounds; and it was accordingly set aside and reversed at the following July term of the County court. The judgment of reversal was, itself, afterwards reversed by the Circuit court; to whose judgment a supersedeas has been awarded by a judge of this court; and that is the case now under consideration. The only error assigned in the judgment of the Circuit court is that the plaintiffs in error, who were defendants to the action in the County court, do not appear to have been served with the process summoning them to answer. If they do appear to have been so served, then there is no error in the judgment; as the Code, ch. 171, § 18, provides that a defendant, on whom the process summoning him to answer appears to have been served, shall not take advantage of any defect in the writ or return, unless the same be pleaded in abatement; and there was in this case no plea in abatement. The only evidence in the record of service of the process on the defendants is the return thereon, which is clearly sufficient, unless there be some requisition of law not therein complied with which makes it insufficient. The following provisions of the Code embrace all the requisitions of law upon the subject. Chap. 49, 28: "Every officer to whom any order, warrant, or process may be lawfully directed, shall make true return thereon of the day and manner of executing the same, and subscribe his name to such return. Where the service is by a deputy, such deputy shall subscribe to the return his own name as well as that of his principal." "Any officer failing to comply with this section shall forfeit $20, and if he make a false return shall forfeit therefor $100." 1862. January Term. Barksdale & als. V. Neal. |