the part of the plaintiff (supposing there is not any other plea,) is proof of the execution of the bail-bond by the defendant; for the plea of non est factum does not put in issue any other allegation in the declaration; consequently, in such case, it is not necessary to prove the writ, assignment by the sheriff, &c. Debt on a bail-bond given upon an arrest in inferior court; the defendant pleads, that before the day of appearance mentioned in the condition, he was rendered to the gaoler there, and there continued till a supersedeas came: upon demurrer the plea was holden good. In an action by the sheriff on a bail-bond, the bound bailiff who made the caption is a competent witness to prove the execution of the bond, if the defendant, knowing his situation, asked him to become attesting witness. Comperuit ad Diem.-In debt on bail-bond, the defendant having craved oyer of the condition, may plead (48) an_appearance at the day therein mentioned, according to the form and effect of the condition, concluding with "and this he is ready to certify by the record of the appearance;" for the appearance being entered of record is not triable by jury, but by the record. This plea is termed a plea of comperuit ad diem. If the appearance is not entered of record, the bond is forfeited. To the plea of comperuit ad diem the plaintiff may reply nul tiel record, viz. that there is not any such record of the appearance (49). When the record is of the same court, this replication ought to conclude with giving a day to the defendant. This constitutes a complete issue of fact; and if in this case the defendant should demur to the replication, the plaintiff need not join in demurrer; but if the record is not produced at the day, the plaintiff may sign d Hutchinson v. Kearns, C. B. London Sittings, Trin. T. 50 G. 3. Sir J. Mansfield, C. J. MS. and new rules. e Pawling v. Ludlow, 2 Show. 443. 3 Mod. 87. S. C. f Honeywood v. Peacock, 3 Campb. 196. g Bret v. Sheppard, 1 Leon. 90. (48) See the form of this plea of an appearance in B. R. Tebbutt, ats. Powle, Lill. Entr. 498, and a similar precedent, p. 114. For the form of plea of an appearance in C. B. see the same book, p. 479. (49) For forms of this replication, see Lilly's Entries, p. 114, 480, judgment. When the record is of another court, the replication ought to conclude with a verification, and a prayer of judgment (50); the defendant thereupon rejoins, "there is such a record;" and the court gives him a day to bring it in. If the record is not brought into court on the day, judgment of failure of record is given (51). To an action of debt on a bail-bond to the plaintiffs m, as sheriff of Middlesex, the defendant pleaded, that the action was brought by the plaintiffs, for the benefit of, and as trustee for, J. S. (the sheriff's officer) by whom the defendant had been arrested, and to whom the defendant, after the return of the writ, but before the sheriff had been ruled to 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 Donelly v. Dunn (52) 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. k Tipping v. Johnson, 2 B. and P. 303. 1 Sandford v. Rogers, 2 Wils. 113. 2 T. R. 443. S. C. See new rule, post, under Debt on Judgment. (50) See the form, 1 Saund. 92. m Scholey and Domville v. Mearns, 7 East, 148. n M. 22 G. 3. C B. cited in Winch v. Keeley, I T. R. 621. (51) See the form, 1 Saund. 92. n. (3). (52) 2 B. and P. 47, where it was decided, that bail could not plead the bankruptcy and certificate of their principal in their own discharge. By R. G. H. T. 2 W. 4. 29. In all cases where the bailbond shall be directed to stand as a security, the plaintiff shall be at liberty to sign judgment upon it. 30. Proceedings may be stayed on payment of costs in one action, unless sufficient reason be shewn for proceeding in more. See Key v. Hill, 2 B. & A. 598. where before the new rule the court did so stay the proceedings, Abbott, C. J. dissentiente. V. Debt on Bond, with Condition to perform Covenants— Assigning Breaches under stat. 8 & 9 W. 3. c. 11. s. 8. Ar 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 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. Under 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 and 9 W. 3. c. 11. s. 8. "That in actions upon bond, or any penal sum, for non-performance of any covenants or agreements contained in any indenture, deed, (53) or (53) 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 writing, the plaintiff may (54) assign as many breaches as he shall think fit, and the jury, upon trial of such action, shall assess not only such damages and costs, as have been hereto 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 instalments t. 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. But this statute does not extend to bail or replevin § bonds, or post obit bonds ||, or a warrant of attorney to enter up a judgment¶ given as a security for a debt on demand, or a bond with a penalty conditioned for the payment of money at a given day, with a stipulation that on any default in paying the interest, the whole sum should be demandable **; and it may be observed, that it has not been holden, to 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 last kind, defendants are sufficiently protected against an unconscientious de mand 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." (54) This statute having been made for the protection and relief of the defendants, these words, "may assign," have been construed 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 eminent pleaders have thought it more convenient in cases to which the 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 the case of Ethersey v. Jackson, 8 T. R. 255. it was holden, that after issue joined on non * 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. Middleton v. Bryan, 3 M. and S. 155. recognizel in Smith v. Bond, 10 Bingh. 132. Stair v. E. of Murray, 2 B. and C. 82. Shaw v. Marquis of Worcester, 6 Bing'. 385. ** James v. Thomas, 5 B. and Ad. 40. fore 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 (55), then the statute directs, 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. The case of Ethersey v. Jackson, was recognized in Homfray v. Rigby, 5 M. and S. 60. where it was holden that, after a plea of non est factum and that the bond was obtained by fraud and covin, where breaches are not assigned in the declaration, the plaintiff may suggest them in making up the issue. 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). Debt on the usual administration bond against the surety. Plea, non est factum and issue by plaintiff, with a suggestion of several breaches. A rule to shew cause why some of the breaches should not be struck out, or why the defendant should not be allowed to suffer judgment by default, and pay one shilling damages thereon, was refused; Bayley, B. observing, that in this case, on the suggestion, the jury were to inquire into the truth of the breaches; and that he was not aware of any case where a party had suffered judgment by default on such breaches; and it seemed to him contrary to the provisions of the statute that he should do so. Archbishop of Canterbury v. Robertson, 1 Cr. & M. 181. 3 Tyrw. 419. n. S. C. Bayley, B. added, that the present was not the defendant's only course; he might have pleaded performance, and suffered judgment by default in answer to the replication. (55) The only difficulty, in cases where a party obtains a judgment 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 purpose; to which form, Lord Alvanley, in Hankin v. Broomhead, 3 Bos. and 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 master to tax the costs of the inquisition, and then to add them to the sum to |