Saunders, Executrix v John James Coward
| Jurisdiction | England & Wales |
| Judgment Date | 19 January 1846 |
| Date | 19 January 1846 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 756
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 3 D. & L. 281; 15 L. J. Ex. 97; 10 Jur. 186. Referred to, Humphries v. Humphries, [1910] 2 K. B. 534.
sanders, Executrix: . john james coward. Jan. 10, 1846. - Debt on bond. The defendant, after craving oyer of the bond arid condition, which was for payment of money pursuant to the covenant in an indenture of even data with the bond, and for performance of the covenants &c. contained therein on the part ' of the obligors, pleaded that no cause of action in respect of the said writing obligatory, by reason of any breach of the said condition, or of the covenants &c. in the said indenture contained, had accrued at any time within twenty years next before the commencement of the suit. -Held, that the plea was bad, first, for not setting out the indenture, as it might contain impossible covenants, in ò which case the bond would be single, and the plea to the breaches only would be bad; secondly, in not properly confessing a breach of the condition. - Semblo, the proper form of plea would have been, to set out the indenture ; to aver performance of all that was performed within twenty years; to admit the breaches beyond twenty years; and to those breaches to plead the Statute of Limitations.C. 3 D. & L. 281 ; 15 L. J. Ex. 97 ; 10 Jur. 18(5. deferred to, Humphries v.es, [1910] 2 K. B. 534.]Debt on bond by the plaintiff, as executrix of E. It. Sanders, the surviving obligee.The defendant craved oyer of the bond, and of the condition, which was as follows : -" The condition of this obligation is such, that if the above bounden John James Cowp,rd, his heirs, executors, or administrators, do and shall well and truly pay or caust to be pajd unto the above-named E. L. Sanders and C. K. Sanders, their axecjitors, &a., the sum of £(i70, with interest &c., on the first day of February next, according to and in full performance and discharge of the covenant or condition men-tiongd in an indenture bearing even date with these presents, made or mentioned to he mjade between the said J. Coward of the first part, the said J. J. Coward of tha secoijd part, 3. Dingle of the third part, and the said E. L. Sanders and C. fi. Sandera of the fourth part ; and do also well arid truly observe, perform fulfil, and keep all and singular the covenants, grants, articles, conditions, and [49] agreements whatsoever,. which on their parts and behalves are or ought to be observed, performed, fulfilled, and kept, comprised and mentioned in the said recited indenture, and that in al| things according to the true intent and meaning thereof and of the parties to the same, then this obligation is to be void, or else to remain in full force and virtue."Tjhe defendant then pleaded, "that no cause of action in respect of the said writing obligatory, by reason of any breach of the condition of the said writing obligatory, or of; the said covenants, grants, articles, conditions and agreements, or any or either15M.&W. 80. SANDERH V. COWAHD 757ofithem, in the said indenture, in the said condition mentioned, contained, has accrued at any time within twenty years next before the commencement of this suit."Special demurrer, assigning for causes, (inter alia), that the plea is not good as a plea by way of confession and avoidance, nor by way of denial of the alleged cause of action, and that it is consistent with the terms of it that it should be taken as a deinial that a cause of action ever arose. Joinder- in demurrer. In the sittings after last Michaelmas Term (Dec. 1),Montague Smith argued in support of the demurrer. This plea is framed upon the stat. 3 & 4 Will. 4, e. 42, s. 3, which limits the time of bringing actions of debt on a bond or other specialty to twenty years " alter the cause of such actions or suits : " arid it is a bad plea, for not confessing a cause of action. It is consistent with all the statements in the plea, that no breach of the bond whatever had at any time been committed. The proper form of plea would have been, to have confessed one or more breaches, and then to have alleged that they took place more than twenty years before the commencement of the suit. The plea, as it stands, subjects the plaintiff to great difficulty and embarrassment as to the mode of replying. For example, the 5th section of! the 3 & 4- Will. 4, c. 42, makes an acknowledgment in [50] writing within the twenty years an answer to the plea of the statute of...
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