SEPTEMBER TERM, 1718.

Lib. P. L. No. 4. fol. 143.

#### John Gresham *against*Thomas Gassaway.

THIS was an action of debt on a bond dated the 20th of *October,*1711. Conditioned “ that whereas the above 44 bound *Thomas Gassaway,*high sheriff of *Anne Arundel*“ County, hath deputed and appointed the above named “ *John Gresham*his under sheriff of and within the Coun- “ ty aforesaid, which the said *J. Gresham*hath taken upon “ him the burthen and the executing of the said office, and 44 hath well and sufficiently secured'the said *Thomas Gas-*44 *saxvay*from all and all manner of damages which may *3541 any wise accrue to the said *Thomas Gassaway*by the “ said *J. Gresham's*misfeasance or negligence therein. *'<■*Now if so be the said *T. G.*shall at all and any time or 44 times after upon the reasonable request of the said *John*44 *Gresham*assign and set over unto the said *John Gre*44 sham, his executors, &c. by proper instruments under the 44 hand of the said *Thomas*Gassaway, all such public and 44 County allowances which are usually allowed to the 44 sheriff of the said County for collecting and paying the 44 public and County levies, and all other fees, profits, and 44 rewards belonging, or in any wise appertaining, to the 44 sheriffs of the said County, and all prison fees and ac-44 counts, and balances of accounts, that shall, and may, at 44 any time appear to be due in respect of his said office.” The defendant pleaded special performance 44 that he the 44 said *Thomas Gassaway*from the time of the making of 44 the writing obligatory aforesaid, at all times hitherto 44 upon the reasonable request of the said Gresham, the 44 said *Gassaway*hath assigned and set over unto the said 44 Gresham, by proper instruments, under the hand of him 44 the said Gassaway, all such public and County allowan44 ees,” &c.

Replication- — non-performance—-protesting that the defendant after the making of the writing obligatory, to wit *t*from the 20th of October, 1711, until the 29th of *October,*1714, continued sheriff of *Anne Arundel*County. That after the making, &c. and during the continuance of the defendant in the said office, to wit, on the 12th of March, 1712, at *Anne Arundel*County aforesaid, a certain *R. P.*at a County Court then and there held, was by the Justices of the same County Court committed to the custody of the said defendant, then sheriff of the said County, and by him, the said defendant, by virtue of his office, in his custody then and there received ; where the said *R.*P. remained for the space of seven hundred and fifty days ; and that the fees for the commitment and imprisonment of him the said P'= P. which became due to the said de*36fendant by virtue of his said office, amounted to 5,060 wt. of tobacco, which the said defendant from the said i?. P. had and *received;*and to his the said defendant’s own use? did convert and dispose to wit, at *Anne Arundel*County aforesaid ,• and the said plaintiff further saith, that after the making &c. and during the continuance of the said defendant in the said office of sheriff of the County aforesaid, to wit, the 8th day of *June,*1714, at *Anne Arundel*County aforesaid, at a County Court, then and there held? a certain *J, S.*of the same County had a *capias*returned *cepi*against him, at the suit of *C. C.*for 15/. Is. Si/, sterling, and costs 430 wt. of tobacco. Upon which return the sheriff for the arrest and imprisonment during die time the said *J. S.*was in custody, and until the said *C. C.*was paid his debt and posts aforesaid, which was 120 days, amounting to the sum of 2,600 wt. of tobacco, from the said *J. S.*the said defendant had and received and to his own use did convert and dispose, to wit, at *Anne Arundel*County aforesaid. That the said defendant after, &c. to wit, on the 10th of *October,*1714, at *Anne Arundel*County aforesaid, had and received of and from a certain *A. J.*the quantity of 5,735 wt. of tobacco, being the balance that appeared to become due from the said *A. J,*to the said defendant in respect of his said office during his continuance therein to wit, the 29th of *October,*1714, at *Anne Arundel*County aforesaid, and the same 5,735 wt. of tobacco to his own use did there convert and dispose ; as also several other sums and quantities of tobacco, which grew due by virtue of the office of sheriff as aforesaid, amounting to 8,766 wt. of tobacco, which together with the tobacco aforesaid amounts to the quantity of, &c. as by a particular list thereof here underwritten may plainly appear, he the said defendant did to his own use convert and dispose of, to wit, the said 29th of *October,*1714 ; and this the said plaintiff is ready to verify, &c. &c. *Then follows the list.*

To this replication the defendant demurred specially and assigned for cause, that the replication is no answer to the *37defendant’s plea, nor assigns any breach though performanee be pleaded, nor shews how the 8,766 wt. of tobacco, in the replication mentioned became due, or that the said defendant received the said tobacco, or that he was sheriff at the time of such conversion Also that the whole replication is insufficient "in law and repugnant thereto. Joinder, &c. i

Dulany, for the plaintiff.

Two points arise in this case. 1st. Whether the matters alleged be breaches or not. 2d. If they are, whether they are well assigned.

1st. That the matters mentioned are breaches. This defendant receives the tobacco and assigns the debts. The -assignment was to enable the plaintiff to receive the tobacco, and the receipt of it, by the defendant, rendered that impossible. This is a direct breach. *Cro. Eliz.*7. pl. 3. The case of *Brown*v. Randall, to the same purpose in *Mod.*709. pl. 989. 18 *E.*IV. 20. pl. 29. Covenant to deliver up a recognizance on payment of a sum of money by a particular day. If execution is sued on' the record before the day it is a breach. 1 *Sid.*48. Raymond, 25. 1 *Keb.*103. 118. Where one disables himself it is a breach ; and if one disables himself from performing a condition, though he afterwards and before he is obliged to perform the condition, becomes capable, yet it is a breach: *Co. Litt.*221 *b.*s. 357. Also, were cited 1 *Roll. Ab.*448. pl. 1, 2, 3. 2 *Dan.*50. 5 *Co.*21. *Poph.*110. *Mod.*452. pl. 619. *Cro.*Eliz. 450 pl. 17. 479. pl. 10. Hutton, 48. *Winch. Rep.*29, 30. The case here was that a stranger entered into a bond, with condition to levy a fine. The defendant pleaded that the plaintiff did not purchase out a writ of covenant, (which was an act to be done by the plaintiff.) The plaintiff replied that the stranger before the obligation made, had enfeoffed another in fee. This was held to be a good breach and judgment was for the plaintiff.

*38Where covenant was that one should have seven parts of his grains for a certain number of years ; the breach assigned was that the defendant put hops in the Srains? and it was adjudged good. *Raym.*464. 2 *Jo.*191, 192. The intent of a condition or covenant is always to be regarded, as where there was a condition to pay 50/. without saying of what — it shall be intended to be money. 1 *Sid. 151.*Putting it in the power of another to make a breach is a breach. 1 *Roll. Ab.*428. pi. 42. 429. pi. 2, 3. Where the condition was to enfeoíf *J. S.*and the party enfeoífed *J. S.*and others, held to be a breach. *Assize, 21.*pi. 29. Covenant to license one to cut and carry away 1,200 oaks, license given and a disturbance afterwards — It was held to be a breach. 18 *Ed.*IV. pi. 29. *Hard.*463, 464. seems to have been of opinion that where a feme sole is obliged to make over lands, and marries before she performs the condition of her obligation, it is a breach. He that enters into a condition must use all means to discharge it in convenient time. And where one disables himself to perform the condition, it is a breach. 1 *Roll. Ab.*436, 437. pi. 7. *2 Ban.*61,62. 1 *Roll. Ab.*447. pi. 1, 2. 4. *Litt.*sect. 357. *Co. Litt. 221.*2 *Co.*59.

*Second point.*Whether the breach be well assigned ?

The words of the condition are “ all such public and “ County allowances, which are usually allowed to the “ sheriff for collecting and paying the public and County “ levies, and all other fees, profits, and rewards belonging “ and appertaining, &c. and all prison fees, accounts, and “ *balances of accounts*that shall and may at any time ap- “ pear to be due,” &c. The replication states that *R. P.*was imprisoned 250 days ; that the commitment and imprisonment fees amounted to 5,060 wt. of tobacco, and that the defendant converted the same to his use. And so of *R. B.*1,860 wt. of tobacco ; and of *J. S.*2,600 wt. of tobacco. The tobacco received of *A. J. 5,735*is alleged to have been the balance for sheriff’s dues. This is agreea*39ble to the words of the condition, and is sufficient, as appears by the case in 18 *Ed.*IV. 20. pi. 29. See *Raym.*8, 9, 10. 3 *Bulst.*31. *Sty.*428. *Cro. Eliz.*749. 1 *Sal.*139. 2 *Saund.*373, 374. 2 *Saund.*337. 1 *Vent.*240. *6 Mod.*118.

The stat. 4 *H.*IV. c. 5. by which the bailiwick of sheriff, shall not be let to farm. Answer — That statute is restrained *vi terminis*to England, and an oath is required of the sheriff to that effect. There is no such oath required here. The stat. 23 *H.*VI. c. 9. is also objected, but that too is a local and a private. The stat. *5*and 6 *Ed.*VI. c. 16. against the buying of offices is objected. But it is evident by the assembly proceedings, it never was deemed to be in force in *Maryland. Fid.*Journals. 2 *Sal.*411. 4 *Mod.*222. 2 *Mod. 45.*

Objection. It is alleged in the replication that *Gassaway*continued sheriff till the 29th of *October*1714, so that his office ended on the 28th. Yet it is alleged that during his continuance, viz. on the 29th, he converted, &c.

Answer. This argument is pretty much like that of the fortieth degree of latitude. It signifies nothing (as is manifest) whether the conversion ivas before he was out of office or after, and supposing the allegation false, it is of no prejudice to the plaintiff, nor benefit to the defendant. *Vaugh.*104. 2 *Saund.*411. *Arlington*v. *Merrick.*See *Main's*Case, 5 *Co.*20.

The Provincial Court gave judgment on the demurrer for the defendant. The plaintiff appealed to the Court of Appeals, and that Court at *July*term, 1723, affirmed the judgment.

*40OCTOBER TERM, 1720.

ORDERED, that the copy of *Thomas Ropers'*certificate for four hundred acres of land, called “ *The Diamond*surveyed for him the 25th of June, 1703, be recorded in the Land Office of *Maryland*to avail all persons concerned in the land so far as in law and right it ought ; the record of the same certificate appearing to the Court to be em.. bezzled.

RULED, that upon all ejectments the attornies may have warrants of resurvey according to the old practice on their warrant to the Clerk.