#### Gale and Stanley *against*O’Brian.

A declaration-on a bond, eouditi°ned for the performance of cove”a»ts. commenemgmdebt, t^Zi^"*;re*Sche?,ani co“enadnt.s aand damage???1« speciáiSdemu°r-

Bu it is certainly good on a *general demurer. Vide 12 Johns. Rep. 216. S. C.*

THIS was an action on a bond in the penalty of 1,000 dol- - r *J 7*jars, conditioned for the performance of a.covenant therein con- *,*7 * iained. The declaration commenced by demanding 1,000 *J*© 5 dollars, which the defendant owed to, and unjustly detained from, the plaintiffs: it then set forth the penalty of the bond, with the condition, in which the defendant’s, covenant was contained; and, having assigned breaches of- the covenant, con-•eluded thus: *“*Therefore, the said *Thomas O7 Brian,*his covenant with the said *James Gale*and *Ashbel Stanley*hath not kept, i although often requested so to do, but hath broken the same ; wherefore the said *James Gale*and *Ashbel Stanley*say they are injured, and have sustained damages to the value of 1,000 dollars, and thereof they bring suit,” *&c.*

To this declaration there was a general demurrer and joinder In demurrer. The cause was submitted to the court without argument, at a former .term, *(May,*1815, 12 *Johns. Rep.*216.,) and judgment was given for the plaintiff.

By consent of parties, the cause was again brought before the court, and argued by *Cantine,*in support of the demurrer, and *Powers,*for the plaintiff.

*Cantine*

contended, that the judgment ought to be in debt, but no judgment in debt could be given on this declaration: It must be in covenant, and this is a good ground for a general demurrer. The attorney of the plaintiff, in drawing the declaration, appears to have followed the precedent in 2 *Chitty on Pleadings,*154., except the conclusion, which, in that precedent, is in *debt*instead of covenant.

This is a misjoinder, which renders the declaration bad in substance.*

*Powers,*contra.

The court (12 *Johns. Rep.*216.) have already decided the very point. The objection is matter of form, and can only be taken advantage of, if at all, by a *special*demurrer. By the 7th *section*of the act for the amendment c;f *190the law,* the court, in cases of demurrer, are required to.-give judgment according to the right of the matter, without regard to form, unless the particular defect be shown, specially, as the cause of demurrer.

i Sergeant *Williams,*in his note (5) to 2 *Saunders,*190., says, expressly, that-a wrong-conclusion to a declaration is nqt'matter of substance, but mere, form, and must be specially shown . for cause of demurrer. ; The declaráfion is in the: form reéOnrmerided by *Williams,*in his note (1) to 1 *Sound.*68.; it sets forthhhe bond and-the Condition, and .then assigns i'he breaches, concluding in CQvenant.† If the concksfon be-Wroiig:, itis like ° 0/ a title defeetivély set fpEth, wliich is /orily a fault-in form.‡

*Coniine,*in reply*

'Sergeant *William's,*in his-note to 2 *Saicnd,*187.-c.y corrects his mistake, .in’the'note referred to iri *1. Sound.*58., in saying that the declaration might conclude as in covenant; and the court, in -giving judgment on the demurrer, in this cause', in 1,2 *Johns. Rep.*216., did not advert to tins correction, but relied on the authority of *Williams-,*in his first note. ’•

*

 1 *Chitty's Pl.*206 2 *Bos. & Pull.*424.

*

*1 N. R. L.*120.

†

 Hob 233. 6 *Johns. Rep.*67.

‡

 1 Tidd's Pr. 647.

*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 *191quality had been fixed before, by demanding the penalty as a newyork, debt, in the usual way.

Judgment for the plaintiff.