The complaint alleges that money belonging to the plaintiff, came to the hands of the testator of the defendant as Clerk and Master, which he was ordered to lend out on bond and security, and pay her the interest annually ; and the alleged breaches of his official bond are :
. 1. That he did not lend out the money on bond and security ; and 2, that he did not annually pay her the interest. The defendant put in a general denial.
Upon the trial the defendant offered to prove that while he did not lend out the money on bond and security, yet he did, with the plaintiff’s'consent, deposit the money in a savings bank, which paid interest. And that although he did not himself pay the plaintiff the interest, yet she did annually receive the interest of the said bank; and therefore there was no breach of his bond.
His Honor refused to hear the proof, under the general denial in the answer; upon the idea, as we suppose, that the defence ought to have been by confession and avoidance.
The gist of the matter was the alleged breach of the Clerk and Master’s bond. And the answer was a denial of the breaches alleged. And when the plaintiff charged the defendant with breaking his bond, it was proper for him to deny that he had broken his bond; and under that denial to prove that the acts complained of were not a breach of the bond, because they had the sanction of the plaintiff. And it was not necessary that the defendant should say, true, I did break my bond, but you cannot take advantage of it, because you sanctioned it. The sanction of the plaintiff was not simply an excuse for the breach, but it prevented the acts complained of from being a breach at all.
There is error.
Venire de novo.