burrow Cornwallis versus savoury in debt upon a bind for a penalty where there  be alternative part of the condition the defendant must confine himself to a  particular breach see durn Bosanq this be a action of debt upon a bind bring  for the penalty which be l the defendant pray oyer of the bind and condition  which condition appear to be that whereas one William Wilkinson be appoint by  earl Cornwallis to be agent to colonel Edward cornwallis regiment if the say  William Wilkinson shall well and duly pay to the say colonel and to all the  commission and noncommissioned officer and soldier of the regiment all such  sum and sum of money as he shall receive from the paymastergeneral for the use  of the regiment and faithful account either to the earl or to colonel  Cornwallis c and indemnify the colonel c then the bind to be void c otherwise  c then the defendant plead that the say William Wilkinson continue agent of  the regiment from c to c and that he do well and true pay c in the word of the  condition and that he faithful account c during all the time that he continue  agent and that the colonel be not at all damnified the replication assign a  breach videlicet that during the time that the say William Wilkinson continue  agent of the say regiment he receive from the paymastergeneral for the use of  the say regiment several sum of money amount in the whole to for and on  account of the say regiment and of the commission and noncommissioned officer  and soldier of the same accord to their respective proportion all which he  ought to have pay c ut aver that the say William Wilkinson have not pay and  refuse to pay a great part thereof to and among the say colonel and the  commission and noncommissioned officer and soldier of thesaid regiment accord  to the several proportion of their pay to this replication the defendant  demurrer and show for cause that it be uncertain multifarious confuse perplex  complicate argumentative double and many other such epithet Mr Caldecott for  the defendant object to the replication saint that the plaintiff ought to have  confine himself to one particular breach as this be a action of debt upon the  bind to recover the penalty and not a action for burrow damage for the Act of  W c do not extend to action of debt bring for the penalty of a bind it only  relate to action for damage for nonperformance of covenant and in such case  enable the plaintiff to assign as many breach as he shall think fit in the  case of Symms v smith cro car the distinction be lie down that in covenant the  plaintiff may assign as many breach as he will but not in debt upon a  obligation for performance of covenant now here it be charge that the agent  receive several sum of money amount to great part of which he have not pay to  the colonel officer andsoldiers c accord to the several proportion of their  pay in the case of the royal African company v mason which be cite in strange  p Ann b r the action be of debt on a bind the condition be that mason who be  recite to be agent for the company at Bristol shall when require pay to the  use of the company all the sum of money in his hand and possession receive by  he for the company to who he be agent at Bristol the defendant plead  performance of the condition general videlicet that he have pay the company  all that he have receive for they the plaintiff in his replication assign for  breach that mason do receive of Jacob Reynolds and diverse other for the use  of the company several sum of money amount to which he be request burrow er p  to pay but have not pay this replication be hold ill because many breach be  assign whereas the plaintiff ought to have assign only one and the plaintiff  discontinue he cite this from a manuscript note of ld Ch I reeves d objection  to the replication it say that the money be to be pay to the colonel and all  the commission and noncommissioned officer and soldier of the regiment accord  to the several proportion of their pay which be uncertain and complicate and  no issue can be take upon it d objection to the replication it conclude with a  averment whereas it ought to have conclude to the country there be a  affirmative and a negative for the defendant plead that Wilkinson the agent do  pay all that he have receive of the paymastergeneral c then the replication  allege that he have receive l of he and have not pay it which be a affirmative  and a negative and therefore the replication ought to have conclude to the  country burrow Mr serj nares for the plaintiff be prevent from answer these  objection because the court do not think that they require any answer Lord  MansfieldMr Caldecotts principle be right and the case cite by he may be so  too but his application of they be wrong it be true that where there be  alternative part of the condition the plaintiff in a action upon the bind for  the penalty must confine himself to a particular breach but here be only one  breach assign in this case the colonel be answerable for his agent who he have  appoint and the breach here assign be single this that the agent receive from  the paymastergeneral which he have not pay to the colonel officer c if he have  omit to pay any part of it it be a breach of the condition the case cite from  ld Ch I reeves note be not like the present case that be moneyreceived from  several different person here it be from one single person only and the  defendant have incur a breach of the condition if the agent have receive a  certain sum of money from the paymastergeneral for the use of the regiment and  have omit to pay any part of it to the colonel and officer c as to the d  objectionThe pay of a regiment be a thing very well know and notorious the  agent must be perfect well acquaint with the respective proportion belong to  the colonel officer c and there be no need to spin out the proceed to a great  prolixity by enter into the detail and state the various deduction out of the  whole pay upon various account and in different proportion dly the replication  be right conclude with a averment for though the plea aver general that  William Wilkinson do pay all that he have receive of the paymastergeneral yet  the replication narrows this to a particular sum which it specify in certain  to be so that although there be a affirmative and a negative yet they be not  apply to the same thing and therefore not within the rule Mr just denison be  of the same opinion burrow in a action of debt on a bind for the penalty it be  true that the plaintiff be to assign only one single breach and the breach  here assign be a single breach the plea be performance of covenant general and  that the plaintiff be not damnified the replication show that the agent  receive from the paymastergeneral several sum amount to so much which it aver  he have not pay over which be a single breach the case cite be of several  receipt from several person it be not necessary to set out all the several day  and time and circumstance and thereby render the record prolix to no purpose  the replication be a good replication and not double nor complicate nor  uncertain nor multifarious nor any of the numerous epithet that be give to it  in the demurrer dly the objection to its conclusion be only form and it be not  show for cause that it do want a proper conclusion however if it do it will  not avail for this conclusion with a averment in the present case be not wrong  Mr just foster and Mr just Wilmot concur in the same opinion per cur unanimous  judgement for the plaintiff see it also in Lucas burrow er p