The opinion of the Court was drawn up by

■— This is an action of debt on a bond, to which non est factum was pleaded, accompanied by brief statement, that the condition of the bond had been performed. Although the issue of non est factum had been pleaded and joined, proof of the execution of the bond would seem to have been waived. The bond appears to have been given by the defendant, Mosely, as principal, and by the other defendants as his sureties; and was conditioned that Mosely, who had been arrested for debt, among other alternatives should surrender himself to the keeper of the jail in the county of Hancock, within a specified time. The defence set up was, that he had performed this alternative. To prove it, the defendants offered in evidence a writing in the following terms; viz. “William G. Mosely of Sullivan, having appeared here in Ellsworth to surrender himself to the jailer, on a bond, Calvin Washburn & Co. v. Mosely and Curtiss, whose said bond expires this day, and being unable to attend to the same on the part of the creditors,' on account of indisposition, it is hereby agreed, that, if the said Mosely appears at the jail in Ellsworth, on the fourth day of February next, unless said business shall be sooner adjusted between the parties, every *163thing shall, on said fourth day of February, be considered the same as if said Mosely surrendered himself this day, and all matters and things be then done in regard to the said bond as if the said bond expired on said fourth day of February. It is understood by the foregoing, that, if said Mosely surrender himself on said fourth day of February to the jailer in Ells-worth, then the sureties on said bond are to be entirely released from all liability on said bond. (Signed) Calvin Washburn & Co. by George Herbert.”

It was admitted at the argument, that in said writing the names “ Mosely and Curtiss” were inserted by mistake, in lieu of Mosely and Hodgkins, and it was agreed that no advantage was to be taken on account thereof.

The then Chief Justice, who presided at the trial, reports that the case, which would seem to have been taken from the jury by consent, was submitted to the Court under an agreement, that, if the action should be considered as maintained, the defendants are to be defaulted; otherwise that a nonsuit shall be entered.

The statute providing that brief statements may be filed with the general issue must be regarded as requiring a specification of matters relied upon in defence, aside from such as would come under the general issue, to be certain and precise to a common.intent, as much so as if inserted in a special plea ; and no proof is admissible, except in support thereof, or of the defence under the general issue. Chase v. Fish, 16 Maine R. 132; Brickett v. Davis, 21 Pick. 404; Shepard v. Merrill, 13 Johns. R. 475.

Performance having been alone specified in the brief statement, as the defence relied upon, we must look into the evidence, and see if it be made out. It is contended by the counsel for the defendants, that by the writing aforesaid, it appears that Mosely offered to perform, and by the plaintiffs was prevented from performing, the alternative before named; and that this was virtually a performance of it. Put to us it seems to be at most but an excuse for non-performance, which, if it could avail the defendants, should have been set out *164specifically as the ground of defence in the brief statement. Coffin v. Jones, 11 Pick. 45.

But the agreement on the part of the plaintiffs, if at all binding upon them, was conditional. It was, if Mosely should appear at a future day and surrender himself, &c., but Mosely never did so appear. This cannot, therefore, be deemed an executed contract, the condition never having been performed, It is therefore unnecessary to consider whether, in the event of performance, it could have had any binding efficacy upon the plaintiffs,

A default must be entered,