James Apthorp vs. Gardiner, William.
Covenant Broken. Plea.
Special Demurrer. 1. 2. 3. 4.
Joinder in Demurrer.
Auchmuty. 2 Breaches assigned in Declaration by Plaintiff. 1. 2. not indemnifying. Plea is that Plaintiff was not damnifyd by any Demand from Trecothick & Thomlinson.
The 3 first Reasons in the Special Demurrer, are to the same Point. —Tro.2
Holts Reports. Page 206. Annersley vs. Cutter. 2nd. Exception is that he did fit him to be Master of Arts. As to the first the Plea is good.
Scismaticus inveteratus. Pleas adjudgd bad because not shewn who maintained him, from the Time of Batchelor till Master. Incompleat Plea.3
1. Salk. 179. Weaks vs. Peach. Replevin for. Plea an Answer to Part and whole.4
2 Breaches in the Declaration, but one answerd in the Case at Bar. They come and defend &c. i.e. take the whole Defence upon them, and then go on, and answer but one Cause of Action. All Declarations must have compleat Answers.
4th. Objection to the Plea—that he has not in his Plea set forth that he had paid the Debts, and how and when and where &c. 3d. Inst. Cler. 522. Covenant to indemnify and save harmless, ought to shew how he saved harmless.5
Our Breaches are that he hath not paid, and hath not saved harmless. An Issue cannot be made out of two Negatives any more than out of two Affirmatives.
Infregit Conventionem. 3. Levinz. 19. Pitt vs. Russell. Breach assigned in the Negative and Plea in the Negative.6
Cro. Car. 316. Non Debet. Oyer. Payment at Day. Court if issue joined aided by Statute Jeofails, 'tho upon Demurrer bad.7
Informal, argumentative, &c. Too general, not direct and certain. A Negative Pregnant. Cro. Jac. 559. Lee vs. Luther. Pleaded in the Negative that he had not, &c. Plaintiff demurred.
Negativa pregnans. 1st. Argument. 1st. Cause.8
Ours is non Payment, we in the Reason of the Case and therefore the Case must uphold us. These are the Exceptions and these the Authorities to support them. Negative answers to Negative Breaches. All the Entries, all the Precedents shew the Plea to be bad. Law abhors and detests a negative pregnant. Double Pleadings by the Statute and the Leave of the Court, may be, but no Statute allows of a Negative pregnant.
This Plea concludes to the Country too, which it ought not.9
For Defendant Apthorp. Honors have heard Declaration,
Plea and Exceptions. We have answerd that Gardiner Plaintiff hath not been damnified by any such Demand as he has set forth in his Declaration. The whole Effect of the Covenant is, to indemnify Gardiner, from certain Debts and Demands. 2 Ways of indemnifying, are by Payment, by procuring a Discharge.
This Covenant is only a Covenant to save harmless, and the Effect is the same as a Bond with a Penalty conditioned to save harmless. Non Payment is no Breach, and would be bad upon a general Demurrer.
Saville. Page. 90. Case 167. Anonimous. Debt upon an Obligation. Ought to plead not damnified. Bound to discharge pay and save harmless from Rent. Had Defendant pleaded that Plaintiff was not damnifyed, it would have been good.10
Nothing to distinguish this Case from that of Savilles. This exempts this Case from the Force of every Authority the Gentleman has [presented?]
1. Salk. 196. Griffith vs. Harrison. In some Cases the Intention is traversable. Plaintiff did not shew a Disturbance. Counterbond cannot be sued without a Special Damnification.11
If Plaintiff can support an Action now without a special Damnification, he might have supported one Eo Instante that the Covenant was executed.
Cro. Jac. 634. Horseman vs. Obbins. Debt on obligation Conditiond for Indemnification. Demurred because not shewn quo modo indemnem &c. Being a Plea in the Affirmative, should have shewn quo modo, but if he had pleaded generally that he had not been damnified non damnificatus, it would have been good.12
Cro. Jam. [Jac.]
When one pleads a discharge and that he saved
him harmless he ought to shew how, but if he had pleaded generally non damnificatus it had been good &c.13
3. Mod. 252. Mather vs. Mills. Non Damnificatus and Demurrer. Negative Parish not damnified. Good.14
2. Mod. 305. Shaxton vs. Shaxton. Condition to save harmless, &c. Defendant pleads not damnified, &c.15
Negative Answer to Negative Breach. This is a wrong Representation. The Words of the Declaration. Covenant. Will save harmless from all Debts due from the Company of Gardiner & Apthorp to Trecothick & Company. They have made use of negative Words, but not to the Purpose. What is our Answer to their Declaration. That they have not been damnified, by any such Demand, which is the only Breach they have alledgd that could support their Action. Concluding in Bar, when the Matter is brought to a plain Affirmation and Negation would be ill, because it tends to protract Pleadings in Infinitum, therefore we concluded properly to the Country.
Jenkins's Centuries Page 110. Case 12. Non Damnificatus a general Issue.16
Sewall run over the same Ground.
Read Several Authorities, one from Leonard17
and several others, to shew that where there is a Covenant or Bond to save harm•
less only, there Non Damnificatus will do for a Plea. But where there is Covenant or Bond to pay Rent, to pay Debts, &c. and to save harmless from that Rent, those Debts &c., there Non Damnificatus will not do.
There is no Time sett, when the Payment of the Company Debts shall be made, in the Covenant.
To pay, and shall pay all the Debts, due or that shall hereafter become due.
Difference between an Undertaking, by Covenant or Bond, to pay and save harmless, And an Undertaking to save harmless only.
The Judges of England make a strong Inference from the Silence of Precedents.
Tis a Duty as much when there is no Day fixed as when there is a Day fixed, and the Law says it shall be done in a reasonable Time.