and the obligee marry one of them, the debt is extinguished, When a bond will be for a discharge of one joint and several obligor is a discharge of discharged all. But a bond, conditioned for the payment of money after by marriage. the obligor's death, made to a woman in contemplation of the obligor's marrying her, and intended for her benefit if she should survive, is not released by their marriage. And if the marriage be pleaded in bar to an action of debt on the bond against the heir of the obligor, a replication stating the purposes for which the bond was made will be good, for they are consistent with the bond and condition". But If the obligee make the obligor his exe cutor, it will dis If several are jointly and severally bound, the obligee makes one of them his executor, and he administers, this will operate as a release of all, for a personal action once suspended by the voluntary act of the party entitled to it is gone for ever a. if the obligee make the executor of one of the obligors his charge the executor the debt is not discharged, for the executor holds it in another right, and he may sue the surviving obligore. bond. made executor of the If one of several joint and several obligors make the obligee Obligee executor, and he administers and has assets, it operates as a discharge of all. But if he has no assets, the debt is not ex- obligor. tinguished, and he may sue the heir if bound 8. And if the obligee does not administer, the debt is not released h, and therefore where one of two joint and several obligors appointed the Co. Litt. 264. b. A bond given to a single woman does not upon her marriage vest absolutely in her husband, but being a mere chose in action, it must first be reduced into possession, and therefore he cannot sue alone upon it, but his wife must be joined. Bac. Ab. Feme (K.). Rumsey v. George, 1 M. & S. 180. Milner v. Milnes, 3 T. R. 627. If the husband neglect to reduce it into possession during his life, his wife, if she survives him, and not his personal representatives, will be entitled to it. Co. Litt. 351. a. If the bond be given to the wife during coverture, or to the husband and wife, he may sue alone, or they may both join. Coppin v., 2 P. Wms. 497. And if he does not sue upon it in his lifetime, it will survive to her. b Milbourn v. Ewart, 5 T. R. 381. Nedham's Case, 8 Co. 136. d Chatham v. Ward, 1 B. & P. 630. Dorchester v. Webb, Sir W. Jones, 345. e Id. See Gleadow v. Atkin, 2 f Lock v. Cross, 2 Lev. 72. 557. Bankruptcy or insolvency of the obligor. obligee and another person his executors, and the latter administered, but the obligee did not, and having died, he left the person who had administered his executor also; it was held that the executor might sue the obligor a. In debt on a joint bond by three, it was held that a release given by the obligee to the representative of one of the obligors, who died, was no answer to an action against the surviving obligors b. The bankruptcy of the obligor and a certificate will operate as a discharge of his liability under the bond, if the debt could be proved under the commission c. So does a discharge under the insolvent debtors' act, if the bond is forfeited and inserted in the schedule, for when the bond is forfeited the penalty becomes a debt, from which the insolvent is entitled to be relieved by the order of the court. To an action against husband and wife, on a bond given by the wife before marriage, the husband's discharge under the insolvent act is a good plea; and his discharge is a discharge of the wife for ever e. SECTION X. THE DECLARATION. As most of the rules to be observed in framing the declaration in covenant are equally applicable to cases of debt upon a bond, a few observations only are required in this place. We have seen 8 that at common law the obligee, on proof of a breach of the condition of a bond, might enforce the payment of the penalty, however disproportioned it might be to the damage actually sustained, and that the obligor could be relieved only by resorting to a court of equity; to remedy this inconvenience, it was enacted, by the 8 & 9 The plain- W. III. c. 11. s. 8, that "in all actions upon bonds, or any tiff may assign several penal sum, for non-performance of any covenants or agree ments in any indenture, deed, or writing contained, the plaintiff may assign as many breaches as he may think fit, and the jury upon trial of such action shall and may assess, not only such damages and costs of suit as have heretofore been usually done in such cases, but also damages for such of the said breaches so to be assigned as the plaintiff upon trial of the issues shall prove to have been broken; and that the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions; and if judgment shall be given for the plaintiff on demurrer, or by confession of nil dicit, the plaintiff upon the roll may suggest as many breaches of the covenants and agreements as he shall think fit, upon which shall issue a writ 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 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 administrators, 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 execution executed, the plaintiff, or his personal representative, 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 damages as shall be sustained for further breach of any covenant in the said indenture, &c., upon which the plaintiff may have a scire facias, upon the said judgment against the defendant, or against his heir, terre-tenant, or his personal representative, suggesting other breaches of the said covenants. In what cases breaches must be assigned pursuant to the statute. 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 payment 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." Before this statute the plaintiff could only assign one breach of the condition; for if he assigned more, the declaration would have been bad for duplicity; because a forfeiture was incurred equally as much by one breach as by several a. This enactment is calculated to give relief to the plaintiffs to the extent of the damage sustained, and to protect defendants against the payment of further sums than what are in conscience due. It has been held that the statute is compulsory on the plaintiff to proceed in the manner which it prescribes b. The statute is not confined to cases where the covenants or agreements are in a distinct instrument from the bond; the condition of the bond is an agreement in writing within the statute. It extends also to a bond for the performance of an award. Where a bond upon the face of it appeared to be conditioned for the payment of a sum certain, but by an indenture of the same date, declaring the purposes for which the bond was executed, it was agreed that it should be lawful for the obligees in the bond to commence an action and to proceed to judgment whenever they should think fit, and upon judgment being obtained to issue execution, and that the judgment should be a security for the payment to the obligees, on demand, of all sums of money which then were or might thereafter become due to them. A judgment having been entered up by virtue of this deed, the obligees issued exe a King v. Gole, Freem. 156. Symons v. Smith, Cro. Car. 176. Barnard v. Michell, 1 Vent. 114. 3 Salk. 108. b Hardy v. Bern, 5 T. R. 636. Rose v. Rosewald, id. 538. Drage v. Brand, 2 Wils. 377. Collins v. Collins, 2 Burr. 820-6. d Welch v. Ireland, 6 East, 613. cution without assigning breaches or executing a writ of inquiry. Held, first, that this was a bond substantially conditioned for the performance of an agreement within the statute, and that the obligees ought to have assigned breaches 2. So a bond conditioned for the payment of a certain sum by instalments, is within the statute b. Where the obligee of an indemnity bond was sued for damages in respect of the matter of indemnity, it was held that in an action against the obligor on his indemnity, he should assign as a breach not only the damages and costs. recovered against him, but also his own costs sustained in defending the suit, though he had not then in fact paid the costs. cases assigned. But the statute does not extend to bonds conditioned for In what the payment of a sum certain as post obiit bonds, or other breaches bonds for the payment of money, which are provided for by need not be the 4 Ann, c. 16. s. 13, which empowers the court, pending an action on the bond, to discharge the defendant on payment of principal, interest, and costs; nor does it extend to bail bonds, or replevin bonds 8, or a petitioning creditor's bond b; and where judgment is entered on a warrant of attorney, it is not within the act, even though a bond be given i; nor does it apply to cases where the damages assessed are calculated by the jury to meet and satisfy the entire condition of the bond k. A bond conditioned for the payment of a sum of money at the end of five years, with half-yearly interest in the mean time, with a proviso that, upon default in payment of interest, the |