return the same, paid the debt and costs, which J. S. accepted in full satisfaction of the bond; and that if any damage had accrued for default of the defendant's appearance, according to the condition of the bond, it was occasioned by the default of the sheriff's officer not paying over the debt and costs to the plaintiff in the action, which would have been accepted by such plaintiff. On special demurrer, the case of Bottomley v. Brook" was cited in support of the plea, to shew that to debt on bond the defendant might plead, that it was given to the plaintiff in trust for another; so as to let the defendant into a defence which he might have against the cestui que trust. The court, however, were of opinion that the plea was bad; Lord Ellenborough C. J. observing, that, as the officer could not have released the bond, he could not accept any thing in satisfaction of it; and further, that it was not alleged that the bond was originally given to the sheriff in trust for the officer; nor did it appear, how he afterwards came to have any equitable interest in it; consequently this was not brought within the case cited. Lawrence J. adopting the remark of Buller J. in Donnelly v. Dunn (61), animadverted on the plea, as being an attempt to set up matter as a legal defence, which was nothing more than an equitable practice of the court in exercising a summary jurisdiction over its officers.

V. Debt on Bond, with Condition to perform Covenants—Assigning Breaches under Stat. 8 § 9 W. 3. c. 11. s. 8.

AT common law, it was usual for the obligee of a bond, with a penalty conditioned for the performance of covenants, to declare on the bond merely; to which the defendant, having craved oyer of the condition and the deed containing the covenants, usually pleaded performance; to this the plaintiff replied a breach of one of the covenants; and upon

u M. 22 G. 3. C. B. cited in Winch v. Keeley, 1 T. R. 621.

(61) 2 Bos. & Pul. 47. where it was decided, that bail could not plead the bankruptcy and certificate of their principal in their own discharge,

issue joined, and proof of such breach, the plaintiff was entitled not only to recover the penalty, that being the legal debt, but also to take out execution for the same; although the penalty far exceeded, in amount, the damages which he had sustained by the breach of covenant. Udder these circumstances, the defendant could only obtain relief through the interposition of a court of equity, which would direct an issue of quantum damnificatus, and prevent any execution being enforced for more than the damage actually sustained. To prevent plaintiffs, in cases of this kind, from converting that power, which the strictness of the common law gave them, into an engine of oppression, and to avoid the circuitous mode of relief to which defendants were compelled to resort, it was enacted by stat. 8 & 9 W. 3. c. 11. s. 8. "That in actions upon bond, or any penal sum, for non-performance of any covenants or agreements con"tained in any indenture, deed, or writing (62), the plain"tiff may (63) assign as many breaches as he shall think fit,

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(62) This statute is not confined to cases where the bond is conditioned for performance of covenants in some other instrument than the bond; the condition of the bond is an agreement in writing within this statute. 2 Burr. 826. Neither is this statute confined to cases where there is a penalty to secure the performance of an act, on the non-performance of which the obligee would be entitled to recover uncertain damages; but it extends also to cases where the agreement is for the payment of a certain sum; as to bonds conditioned for the payment of an annuity, or the payment of a debt by yearly instalmentst. So it extends to bonds conditioned for the performance of an award, although it appears that only a single sum is to be paid on the bond; for the condition being to perform an award, in other words to perform an agreement, comes directly within the words of the statute. It is to be observed, however, that it has not been holden, that the provisions of this statute extend to common money bonds, that is, bonds with a penalty conditioned for the payment of a less sum of money, at a day or place certain. It seems, that in cases of this kind, defendants are sufficiently protected against an unconscientious demand of the whole penalty by stat. 4 Ann. c. 16. s. 13. by which it is enacted, "that if, at any time pending an action upon any such "bond, the defendant shall bring into court the principal, interest, "and costs of suit, the same shall be taken in discharge of the bond, "and the court shall give judgment accordingly."

(63) This statute having been made for the protection and relief of the defendants, these words, "may assign," have been con

*Collins v. Collins, 2 Burr. 820. Walcot v. Goulding, 8 T. R. 126. S. P. + Willoughby v. Swinton, 6 East, 550. Welch v. Ireland, 6 East, 613.

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"and the jury, upon trial of such action, shall assess not only such damages and costs, as have been heretofore usually done in such cases, but also damages for such "of the assigned breaches as the plaintiff shall prove to "have been broken; and like judgment shall be entered on "such verdict, as heretofore hath been usually done in such "like actions."

If judgment shall be given for the plaintiff, on demurrer, or by confession,or nihil dicit (64), then the statute directs,

strued to be compulsory on the plaintiff, Drage v. Brand, 2 Wils. 377. Hardy v. Bern, 5 T. R. 540. as have the words, "may suggest," in the subsequent part of the statute, where the defendant suffers judgment by default, Roles v. Rosewell, 5 T. R. 538. or plaintiff obtains judgment on demurrer, Walcot v. Goulding, 8 T. R. 126. Since these determinations, some of the most emineut pleaders have thought it more convenient in cases to which this statute applies, to set forth the condition of the bond, and to assign the breaches in the declaration, than in any subsequent stage of the proceedings. This practice, as it seems, was founded on the supposition, that if the breaches were not assigned in the declaration, and the defendant pleaded non est factum, the plaintiff would be precluded from making the suggestion required by the statute; but, in a late case of Ethersey v. Jackson, 8 T. R. 255. it was holden, that after issue joined on non est factum, the plaintiff might, upon summons, and a judge's order, amend the issue, and proceed according to the directions of the statute; for per cur.it is manifest that the legislature contemplated cases where the plaintiff had not originally assigned breaches in the declaration, which the statute enabled him to supply by entering a suggestion on the record, even after judgment, and therefore a fortiori it might be done before. See further on this subject, the notes of Serjeant Williams, in his edition of Saunders, vol. 1. p. 58. n. (1). and vol. 2. p. 187. n. (2).

(64) The only difficulty, in cases where a party obtains a judg ment on demurrer or by default, and is obliged to proceed under this statute, respects the costs of the inquisition, which if the plaintiff does not obtain, he is in a worse condition than he would have been before the statute. To obviate this difficulty, Mr. Serjeant Williams, in a note to Gainsford v. Griffith, 1 Saund. 58. recommends, that the judgment should be suspended until after the return of the inquisition, and proposes a form of entry for that pur pose; to which form, Lord Alvanley, in Hankin v. Broomhead, 3 Bos. & Pul. 612. said, that he did not see any objection. His lordship, however, suggested another mode of proceeding, that is, that an application should be made to the court, to order the mas ter to tax the costs of the inquisition, and then to add them to the sum to be levied under the execution.

In debt on bond in the penal sum of £2000, conditioned for the

"That the plaintiff upon the roll may (65) suggest as many "breaches of the covenants and agreements as he shalt "think fit, upon which shall issue a writ (66) to the sheriff "of that county where the action shall be brought, to "summon a jury to appear before the justice or justices of "assize, or nisi prius, of that county, to inquire of the truth "of every one of those breaches, and to assess the damages "that the plaintiff shall have sustained thereby; in which "writ it shall be commanded to the said justices, that they "shall make a return (67) thereof to the court, whence the "same shall issue, at the time in such writ mentioned; "and in case the defendant, after such judgment entered, "and before any execution executed, shall pay unto the "court, to the use of the plaintiff, his executors or admi"nistrators, such damages so to be assessed, by reason of "all or any of the breaches of such covenants, together with "costs of suit, a stay of execution of the said judgment "shall be entered upon record; or if, by reason of any exe"cution executed, the plaintiff, or his personal representa"tive, shall be fully paid or satisfied all such damages, with "costs of suit, and all reasonable charges and expenses, for "executing the said execution, the body, lands, or goods "of the defendant, shall be thereupon forthwith discharged "from the said execution, which shall likewise be entered "upon record; but, notwithstanding, in each case such "judgment shall remain as a further security to answer "to the plaintiff and his personal representative, such da

performance of covenants, defendant suffered judgment by default; whereupon the usual common law judgment in debt was entered for the recovery of the debt and damages; the plaintiff then proceeded to suggest breaches, upon which suggestion, a writ of inquiry was awarded and executed, and damages and costs assessed; after which, the plaintiff entered a second judgment for the damages assessed under the writ of inquiry, and further costs adjudged by the court, and then entered a remittitur as to the costs. A writ of error having been brought, it was holden, that the second judgment could not stand; and thereupon it was adjudged, that the second judgment, with the amerciament, should be reversed, and that the former judgment should remain unimpeached. Hankia v. Broomhead, 3 Bos. and Pul. 607.

(65) See note (63).

(66) See the form of this writ, 2 Wms. Saunders, 187. c.

(67) See the form of postea returned by justices of assize. 2 Wais. Saunders, 187. c.

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mages as shall be sustained for further breach of any co"venant in the said indenture, &c., upon which the plain"tiff may have a scire facias (68), upon the said judgment against the defendant, or against his heir, terre-tenant, or "his personal representative, suggesting other breaches of "the said covenants or agreements; and to summon him "or them respectively, to shew cause why execution "shall not be had upon the said judgment; upon which "there shall be the like proceeding, as was in the action of "debt upon the said bond, for assessing damages upon trial "of issues joined upon such breaches, or inquiry thereof, upon a writ to be awarded as aforesaid; and upon pay"ment or satisfaction as aforesaid, of such future damages, "costs, and charges, all further proceedings are again to be "stayed; and so toties quoties; and the defendant, his body, "lands, or goods, shall be discharged out of execution as "aforesaid."

VI. Debt on Bond of Ancestor against Heir-Pleadings, Riens per Descent-Replication—Of the Liability of the Heir for the Value of the Land aliened under 3 & 4 W. & M. c. 14. s. 5.—Oƒ the Liability of Devisee under the same Statute. Judgment-Execution.

DEBT will lie against an heir, having assets by descent in fee simple, on the obligation of his ancestor, wherein the heir is expressly bound (69). The law considers the bond of

(68) See form of this writ against defendant, Tidd's Pract. Forms, 1st ed. p. 430. If the plaintiff proceeds to execution, without a scire facias, the court will set aside the execution, and order the money levied under it to be restored. Willoughby v. Swinton, 6 East, 550. In cases within this statute, although new breaches take place within a year after judgment recovered, yet the plaintiff is bound to sue out a scire facias. S. C.

(69) "The executor more actually represents the person of the testator, than the heir does the person of the ancestor; for if a man binds himself, his executors are bound, though they be not named, but so it is not of the heir." 1 Inst. 209. a.

See also Barber v. Fox, 2 Saund. 136. and ante, p. 50. S. C.