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craved oyer of the condition, may plead (49) 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 (i). This plea is termed a plea of comperuit ad diem. If the appearance is not entered of record, the bond is forfeited (k). 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 (50). When the record is of the same court (1), 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 judgment (m). When the record is of another court (n), the replication ought to conclude with a verification, and a prayer of judgment (51); 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 (52). To an action of debt on a bail-bond to the plaintiffs (o) 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 (p) was cited in support of the plea, to show 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

(i) Bret v. Sheppard, 1 Leon. 90.

(k) Corbet v. Cook, Cro. Eliz. (466). (1) Cremer v. Wickett, Ld. Raym. 550, and Carth. 517, recognized in Jackson v. Wickes, 7 Taunt. 30.

(m) Tipping v. Johnson, 2 B. & P. 303. (n) Sandford v. Rogers, 2 Wils. 113; 2

T. R. 443, S. C. See new rule, post, under "Debt on Judgment."

(0) Scholey and Domville v. Mearns, 7 East, 148.

(p) M. 22 Geo. III. C. B., cited in Winch v. Keeley, 1 T. R. 621.

(49) 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.

(50) For forms of this replication, see Lilly's Entries, p. 114, 480, 498. (51) See the form, 1 Saund. 92.

(52) See the form, 1 Saund. 92, n. (3).

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 (53), 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.

By R. G. H. T. 2 Will. IV. c. 29, in all cases where the bail-bond 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 shown 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.

The legislature, considering that the power of arrest upon mesne process was unnecessarily extensive and severe, by stat. 1 & 2 Vict. c. 110, sect. 1, enacted, that no person should be arrested upon mesne process in any civil action in any inferior court, or (except in the cases and in the manner thereafter provided for) in any superior court; and by sect. 3, if a plaintiff in any action in any of her Majesty's superior courts of law at Westminster, in which the defendant is now liable to arrest, whether upon the order of a judge, or without such order, shall, by the affidavit of himself or some other person, show, to the satisfaction of a judge of the said courts, that such plaintiff has a cause of action against the defendant, to the amount of 207. or upwards, or has sustained damage to that amount, and that there is probable cause for believing that the defendant is about to quit England unless he be forthwith apprehended, it shall be lawful for such judge, by a special order, to direct that such defendant, so about to quit England, shall be held to bail for such sum as such judge shall think fit, not exceeding the amount of the debt or damages; and thereupon it shall be lawful for such plaintiff, within the time which shall be expressed in such order, but not afterwards, to sue out one or more writ or writs of capias into one or more different counties, as the case may require, against any such defendant so directed to be held to bail.

The principle by which the judges will be guided in allowing an

(53) 2 B. & P. 47, where it was decided, that bail could not plead the bankruptcy and certificate of their principal in their own discharge. This decision was recognized in Aldridge v. Harper, 10 Bing. 125.

arrest under the foregoing statute, is to consider whether the defendant is about to leave the country for such a time that he is not likely to be forthcoming to satisfy the plaintiff's execution at the period when he will be entitled to it in the ordinary course of law proceedings. It was therefore holden (g) to be a sufficient ground for issuing the writ, that the defendant, an officer in the army, was about to join his regiment stationed abroad.

V. Debt on Bond, with Condition to perform Covenants, p. 581; Assigning Breaches under Stat. 8 & 9 Will. III. c. 11, s. 8. p. 581, 2, 3.

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 & 9 Will. III. 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 (54), or

(g) Larchin v. Willan, 4 M. & W. 351.

(54) 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

writing, the plaintiff may (55) assign as many breaches as he shall think fit, and the jury, upon trial of such action, shall assess not

sum; as to bonds conditioned for the payment of an annuity*, or the payment of a debt by yearly instalments+. 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 as the great object§ of the statute was, to take away the necessity of applying for relief to a court of equity, this statute does not extend to bail]] or replevin¶ bonds, or post obit bonds**, or a warrant of attorney to enter up a judgment†t 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 ‡‡; in these cases the court can relieve the defendant without his being compelled to file a bill in equity; 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 demand of the whole penalty by stat. 4 Ann. c. 16, sect. 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."

(55) 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 est factum,

*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.

§ Per Tindal, C. J., delivering judgment, Smith v. Bond, 10 Bingh. 131. Moody v. Pheasant, 2 Bos. & Pul. 446.

¶ Middleton v. Bryan, 3 M. & S. 155, recognized in Smith v. Bond, 10 Bingh. 132. **Stair v. E. of Murray, 2 B. & C. 82, cited by Tindal, C. J., delivering judgment in Smith v. Bond, ubi sup.

++ Shaw v. Marquis of Worcester, 6 Bingh. 385.

1 James v. Thomas, 5 B. & Ad. 40.

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 (56), then the statute directs, "That the

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, à fortiori, it might be done before. The case of Ethersey v. Jackson was recognized in Homfray v. Rigby, 5 M. & 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. i. p. 58, n. (1), and vol. ii. 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 show 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. Where breaches are assigned in the replication under this statute, the jury may assess damages without a special venire. Scott v. Staley, 4 Bingh. N. C. 724, recognizing Quin v. King, 1 M. & W. 42.

To

(56) 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. 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. & 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 be levied under the execution. In debt on bond in the penal sum of 20007.,

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