This action is founded on the olfictei bond of eiowcll Joucn, as Clerk and Master in Equity for LHcrtibrd county. Tbc bond and the breaches are set forth in the declaration, according to a practice which is saaciioaed by authority, and to which there appears to be no well founded objection. — (2 Chilly, p. 153.) The breach unsigned, produced the only question which was agitated in the Superior Court, viz. whether the sale directed to be made, by the Clerk and Master was an official act, and such an ouo as came within the scope of the condition of the bond. The sale of land where a division among the claimants is inconvenient, is a power recently conferred upon the Courts of Equity j huí: a sale under a decree, in a vast variety of rases, belongs to its ancient jurisdiction, and is probably coeval with the Court itself. The direction of such sales has been constantly confided to the Master in Chancery in .England, and to the Clerk and Master here; and it is better for the suitors that their interest should be massaged by an officer of the Court whom it may control, and whose *96responsibility is «court'd by a bond and an oath, than by a stranger : My opinion, therefore, coincides on this point with that of the Judge who tried the cause.
It is objected, in this Coact, that the condition of the bond varies from that prescribed by iaw, which is “ for the safe keeping the records, and the faithful discharge of his duty in office.” But paying over monies, received by him in his oficial character, to the persons entitled, is included in the laiihftii discharge of his duty in office; and to express, in the condition of the. bond, what the. Saw woo'd have implied from the other words inserted, cannot a fleet the validity of the bond. The specification was snper'iuoun, and did no good, hut strike it out, and the bond contains the condition required by law | surplusage does not vitiate even in an indictment. It is further objected, that no demand was made of these bonds by the persons entitled to receive them. 1 think the law impost's it as a duty upon the persons to whom these bonds were delivered, to make a demand of them at the office of the Defendant, who might, by his pleading, have called for ¡¡roof of the fact. But the affirmative plea of performance of covenant, waives it, and the Defendant undertakes to prove whatever is necessary for his defence — (12 Mod. 414.) The declaration appears to express sufficiently for whose use the action is brought.
The Plaintiff must, appear, upon the pleadings, to have sustained an injury. It is not sufficient., if it appears that the Defendant has done wrong, if that wrong was not done to the Plaintiff. Had the bond on which the- suit is brought, been made to the Plaintiff, a breal'll alone would have given an action to the, Plaintiff, and have entitled him to nominal damages at least • for a hare, breach of the contract was an injury to him | tie had a right to claim a performance, the Defendant having stipulated ivtlh him, giving him that right i but this bond, not having been made payable to *97bins. or any of the covenants lo be performed to him spe-HUJiy. Le nhould bate shown, In hi» declaration, how ho woo iij¿hereby. and a demurrer ;,ould have boon íjvLP ; «roí! the declaration, it does not appear hut it,at be i" iv; oifictoits hileraieddler, and the act of A«-se.uHs of 1793, authorising s¡iii:¡ to he bronchi upon certain clidal bonds, (and of this kind amour; the rest) •wiiLoui -.15! is in accordance emit the princi-pie reirrirhig she Plainti!.", in his det.’ara/lwsi, foi-Aer/haw he has been injured tiy a aivecb ; Luí ss deíeoíive declaration '.aaj be cured by the ilSrfesiilanL.’ pW., and the Püa'ulíf’ü reolrcfition, provided thee the replication is not a dopariurc from the dedarafiiosi, hat maiyisuins and fori hie;-; it. Íít ¡.his case, the breach Js general — -that the Defendant did «oí perform his covenants or conditions ; the defendant pleads that the conditions were performed, and that they were no-; broken. The laiter plea goes to negative covenants, and as none such are in the condition, it is therefore unnecessary to consider it $ the other alienes a performance ; the Plaintiff replies, and sets forth this special broach, is violating a decree of the C3o?íí*í in which he was interested. This is no departure irons his declaration, and is an answer to the plea; taking the pleadings together then, it appears, that if the Piubitiff 9s alienations are trae, that he has siisiaiued special damages bj a breach of the condition, and that this is not an officious suit, am! the Defendants’ rejoinder, cither upon record, or in evidence, i-, a clear departure from his plea, lis bis plea, he says that he has performed the conditions; in bis rejoinder, he, oilers an excuse for his non-performance, to wit: that he never was called on by the Plaintiff to perform it. I think, therefore, the question, whether Use E'htinfiff ever called on the, Defendant to peiform the service, is oof put in issue; and if if were, it would be a departure; it would be taking tlie Plaintiff by surprise, to n quire proof of it; in fact, the Deiendant’s plea admits it, by alleging a performance. If the. Defendant intended 1o have made it a *98ground of defence, he should have pleaded “ always ready, &c." — (1 Chitty on Pleading 401 — 1 Saunders, 228.) The cases cited ;• id relied on by the Plaintiff’s couu-f.,eg ,l(? to the- second pokii, I think are full and conclusive, particularly 12 Mod. 414. The other objection I--* that this was not an oUeial act s for the reasons ,«.signed by the Chief-Justice, § think there can be little doubt that the Clerk acted «LiciaiJy in every part of the. business ; but surely there can be none as to that part of the decree which requires that he should deliver over th<k bonds to the ror.iphvin t'ci 5 his «dice was the. proper placo for tlieir deposit, and he, su: Clerk, was bound to act,, with regard to them, atTortirig to ike older of the Court.
The judgment should be a&raed.
Hall, Judge, concurred.