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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 repleving 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 dem 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. I Welcb 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 lord. ship, 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
“ That the plaintiff upon the roll (56) may suggest as many breaches of the covenants and agreements as he shall think fit, upon which shall issue a writ (57) 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 (58) 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 into 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
be levied under the execution. In debt on bond in the penal sum of £2000, conditioned for the 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 da. mages; 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. Hankin v. Broomhead, 3 Bos. and Pul. 607.
(56) See note (54). No suggestion is necessary on a judgment by warrant of attorney. Kinnersley v. Mussen, 5 Taunt. 264.
(57) See the form of this writ, 2 Wms. Saunders, 187. c.
(58) See the form of postea returned by justices of assize. 2 Wms. Saunders, 187. c.
shall be sustained for further breach of any covenant in the said indenture, &c. upon which the plaintiff may have a scire facias (59), 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 issue 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.”
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 alienated under 3 & 4 W. & M. c. 14. 8.5.–Of 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 (60). The law considers the bond of
(59) 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.
(60) “ 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. For, 2 Saund. 136. and ante, p. 52. S. C. In an action against the heir at law for a debt of his ancestor upon specialty, the ground of
the ancestor, wherein the heir is bound, as becoming, upon the death of the ancestor, the heir's own debt, in respect of the assets, which the heir has in his own right, and holds him liable upon such bond, to the value of the land descended (61). Hence the action, on the bond of the ancestor, ought to be brought against the heir in the debet and detinet (62). But if it be brought in the detinet only, 9 the omission of the debet, which was error at common law, will be cured after verdict, by stat. 16 and 17 Car. 2. c. 8. And although it is the debt of the defendant", because his ancestor has bound him, yet he is not liable any further than to the value of the land descended; and as soon as he has paid his ancestor's debt, to the value of the land, he is entitled to hold the land discharged. Where the obligor has heirs and lands on the part of his father and on the part of his mother, both heirs shall be equally chargeds. The seisin of the obligor must be shewn to have been a seisin in fact. The possession of a tenant for years being a rightful possession, is considered in law as the possession of the heir, and therefore gives him a seisin in fact. A. seised of land in fee simple, at the time of her death, in the possession of a tenant from year to year, died, leaving B. her heir at law. No rent was ever paid to him, it being supposed that the land passed to a devisee under the will of A. After the death of B. his son and heir brought ejectment and recovered the land. It was holdent, that B. was seised in fact of the land in question, which descended from him to his son, and was therefore assets in the hands of the son and heir, liable to the bond debt of the ancestor. If the defen
q Combers v. Watton, 1 Lev. 224. r Buckley v. Nightingale, Str. 665.
8 U H. 7. 12 b.
the charge is, that he is bound as well as the ancestor, and therefore it is in the debet and detinet, as it would have been against the ancestor ; and the law gives him liberty to discharge himself by plea ling nothing by descent, or but so much; which plea, if found false, he is charged as a person bound for the whole debt, if he had but one acre; which is not the case of an executor, who is charged only for so much as comes to his band, notwithstanding such plea found false.” Per Ld. Hardwicke, C. 1 Ves. 212.
(61) The debt is not a lien upon the land from the ancestor's death, but only capable of being made so by the suit of the party.
(62) “ Because the inheritance of the ancestor, which creates a lien upon the heir, is possessed by the heir jure proprio, and not alieno, as the personal estate is by the executor.” Gilb. Debt. B. 2. c. 1.