the condition of the bond, which appears to be for the performance of an award, or of articles of agreement, or the like, the plaintiff must prove the condition of the bond, the award, indenture, or articles, as well as the breaches suggested. Edwards v. Stone, coram Lawrence, J., 1 Wms. Saund. 58 (1). But where the breaches are assigned, and not denied, the truth of them is not in issue.

As to stamps on bonds, vide ante, p. 243.

Damages.] The jury are to find nominal damages and costs, as well as damages on the breaches, but the plaintiff cannot recover more than the amount of the penalty and costs. Wilde v. Clarkson, 6 T. R. 303; Branscombe v. Scarbrough, 6 Q. B. 13.

Where a certain sum is due from A. to B., and they agree that A. shall, in satisfaction thereof, pay a lesser sum on a given day, and in default of payment, the whole original debt shall at once become payable, B. is entitled on default to recover the debt. Hudson v. Thompson, L. R., 4 H. L. 1. So where the debt is to be repaid by instalments, and the whole to become payable on default in payment of one instalment. Protector Endowment, &c. Co. v. Grice, 5 Q. B. D. 592, C. A.; Wallingford v. Mutual Society, 5 Ap. Ca. 685, D. P.

Defence.

Denial of execution.] This defence has the same effect as in actions on covenants, as to which see ante, p. 682.

The defendant may be sued by the name in which he executed the bond; but he may also, it seems, be sued by his real name; for where the writ was against W. B., and the declaration called him “W. F. B., sued by the name of W. B.," and the bond was executed by the defendant, Ŵ. F. B., in the name of W. B., by which he was then known, it was held no variance; and it was also held that, if the wrong name had avoided the bond, it should have been specially pleaded. Williams v. Bryant, 5 M. & W. 447.

Alteration of the bond.] The cases relating to the alteration of bonds are collected with those relating to simple contracts, ante, pp. 681 et seq.

Payment.] Payment before the day fixed for it was always evidence of a plea of payment at the day. B. N. P. 174. But before stat. 4 & 5 Anne, c. 3 (c. 16, Ruff.), s. 12, payment after the day fixed, or at a different place from that fixed, was not pleadable in bar. By that Act, payment of principal and interest, due on a mere money bond, made before action, is a bar, though not made exactly according to the condition. A tender without acceptance after the day is not within the statute, and therefore no bar. Underhill v. Matthews, B. N. P. 171. But see per Abbott, C. J., in Murray v. Stair, El. of, 2 B. & C. 92. Though the Statute of Limitations, 21 Jac. 1, c. 16, did not apply to specialties, yet the defendant might, if the deed were twenty years old, and there had been no payment of interest or acknowledgment of liability within that period, have pleaded solvit ad diem, and relied upon the presumption of payment arising from lapse of time. But if there had been any such payment of interest or acknowledgment, after the day appointed for the payment of the money, though upwards of twenty years had elapsed since the payment or acknowledgment, the defendant could not avail himself of this presumption of payment, under the plea of solvit ad diem,

though he might under the plea of solvit post diem, given by the statute 4 & 5 Anne, c. 3, ante, p. 714. Moreland v. Bennett, Str. 652; B. N. P. 174; see further, on presumption of payment, ante, pp. 37, 38.

In an action on a common money bond or on an annuity bond, it rests on the defendant to prove a defence of payment, although such defence is in fact a denial of the breach of the condition. Penny v. Foy, 8 B. & C. 8, 13.

Accord and satisfaction.] Accord and satisfaction, though not a good legal defence to an action on a bond, is good in equity. Webb v. Hewitt, 3 K. & J. 438; Steeds v. Steeds, 22 Q. B. D. 537. But accord and satisfaction with a joint obligee is no defence, unless the presumption be rebutted that the money was advanced by the obligees as tenants in common and not as joint tenants. S. C.

Fraud.] Vide ante, p. 633.

Statutes of Limitations.] Vide ante, pp. 684 et seq.

ACTION ON REPLEVIN BOND.

The procedure in granting replevin bonds is now regulated by the County Courts Act, 1888 (51 & 52 Vict. c. 43), Part vi.

By sect. 134, the powers and responsibilities of sheriffs with respect to replevin bonds and replevins have ceased, and the county court registrar of the district in which the distress was taken is authorized to "approve of" replevin bonds, to grant replevins, and to issue all necessary process in relation to them, to be executed by the high bailiff. By sects. 134, 135, the registrar, at the instance of the party, takes security (in a bond with sureties, sect. 108 (infra), or a pecuniary deposit, sect. 109), conditioned to commence an action in the High Court, within a week after the date of the security, and to prosecute it with effect and without delay, and (unless judgment be by default) to prove to such court that the obligor had good ground for believing either that the title to some hereditament, toll, market, fair, or franchise was in question, or that the rent or damage exceeded 207., and to make return of the goods, if the return be adjudged.

Sect. 136 provides for prosecuting the suit in the county court on a like security, with a condition to prosecute it within one month with effect and without delay, and to make return, &c.

By sect. 137, the defendant may remove a replevin suit out of the county court by certiorari on giving security, by like bond, or by deposit (ss. 108, 109), approved of by a master of the Supreme Court, to defend with effect" and (except in case of discontinuance, non pros. or nonsuit) to prove that he had good ground for believing either that the title to some hereditament, toll, &c., was in question, or that the rent or damage, in respect whereof the distress was taken, exceeded 201.

By sect. 108, the security is in the form of a bond with sureties "to the other party or intended party in the action or matter:" the court in which the action is brought may, by order, give such relief to the obligors as may be just, which shall have the effect of a defeasance of the bond.

By County Court Rules, 1889, O. xxix., r. 3, "the bond shall be executed in the presence of the judge or registrar, or of a commissioner

to administer oaths, or the clerk to the registrar authorised to take affidavits."

By the C. L. P. Act, 1860, ss. 23, 24, the plaintiff in replevin might, in answer to an avowry, pay money into court, and such payment did not work a forfeiture of the bond. These sections, however, are repealed by stat. 46 & 47 Vict. c. 49; and the Rules, 1883, do not make any provision for such payment into court in replevin, as O. xxii. rr. 1, 9, ante, pp. 75, 76, do not apply. It seems, therefore, that this practice is no longer in force, for it is not retained by the saving in 46 & 47 Vict. c. 49, s. 5, or by O. lxxii. r. 2, ante, p. 1, n.; see Whaley v. Busfield, 32 Ch. D. 123, 132, C. A.; Hume v. Somerton, 25 Q. B. D. 239. A new procedure, where goods are detained under a lien, is given by O. 1. r. 8.

The above provisions in the County Courts Act, 1888, entirely extinguish the functions of the sheriff in replevin, and are much more extensive than the provisions of the original County Courts Act, 1846 (9 & 10 Vict. c. 95), ss. 119-121. They closely follow the County Courts Act, 1856 (19 & 20 Vict. c. 108), ss. 63-71.

Denial of execution.] This defence only puts in issue the due execution of the bond by the defendants. Vide ante, p. 682.

The forms of bond prescribed by the County Court Rules, 1889, are provided in the Appendix thereto, Forms, Nos. 244, 245. O. xxix., r. 3, ante, p. 715, requires the bond to be attested, and as these rules were made under the powers conferred by the County Courts Act, 1888, s. 164, it seems that attestation is necessary to the validity of the bond, and it must therefore in general be proved by the evidence of the attesting witness. ante, p. 131.

Vide

The approval of the security by the county clerk, or other officer, is recited in the bond, and is, therefore, it seems, admitted by the obligors. The bond requires no stamp: vide ante, p. 244.

Forfeiture of the bond.] Where the bond is to prosecute in a superior court, the defendants may have to show, besides the due prosecution of the replevin suit, &c., that the plaintiff in replevin satisfied the court at the trial (if there were one) that he had good ground for belief that title was in question, or that the rent or damage exceeded 201. For this purpose, it should seem that the plaintiff in the replevin suit should prove or produce some declaration or certificate to that effect by the judge who tried it. See Tunnicliffe v. Wilmot, 2 Car. & K. 626, where the certificate was refused by Patteson, J., on particular grounds; see post, Action of replevin.-Damages.

With regard to the prosecution with effect and without delay, the old decisions appear to apply. Thus to prosecute "with effect" means to a "not unsuccessful termination." Jackson v. Hanson, 8 M. & W. 477; accord. Tummons v. Ogle, 6 E. & B. 571; 25 L. J., Q. B. 403. The obligation to prosecute "without delay" is broken by not proceeding with due diligence, though the suit is not thereby determined. Harrison v. Wardle, 5 B. & Ad. 146. And it is no defence that the delay was justified by the practice of the court, or by successive orders for time to deliver statement of claim; but the jury may find delay notwithstanding. Gent v. Cutts, 11 Q. B. 288. The abatement of the suit by death of the distrainee is a sufficient excuse. Morris v. Matthews, 2 Q. B. 293.

Damages.] The verdict is taken for the amount of the penalty; and this, it seems, with costs of suit, still limits the amount that can be afterwards actually recovered from the defendants. Branscombe v. Scarbrough, 6 Q. B. 13.

ACTION FOR PENALTY.

Actions on statutes for penalties have been usually in the form of actions of debt. In some cases that form is prescribed by the statute; in other cases, where no form is specified, the penalty has been treated as a statute debt when incurred, though not strictly referable to any contract. In the statement of the offence it is sometimes necessary to allege a contract, and such contract must then be proved as laid. But variances in such actions are amendable, and will be amended where justice requires.

În an action of debt on a penal statute the general evidence for the plaintiff is-proof of the commission of the act upon which the penalty has accrued, and if a time be limited by the statute for bringing the action, proof that the action was brought within the time. Evidence of the locality of the cause of action is no longer material at the trial, unless otherwise provided by the statute imposing the penalty, or unless the action is on a statute prior to 21 Jac. 1, c. 4. Vide ante, pp. 93, 94, and post, p. 718.

As to the onus of proof, where the penalty arises from the commission of an act without legal qualification, the existence of which qualification is peculiarly within the knowledge of the defendant, vide ante, pp. 94 et seq. In a penal action under an old Act for exercising a trade, without having served an apprenticeship, the plaintiff was not compelled to prove that the defendant used the trade all the time laid in the declaration: it being averred that he forfeited 40s. for each month. Powell v. Farmer, Peake, 57. In Hodkinson v. Mayer, 6 Ad. & E. 194, it was held that an attorney, who practised in a county court, after having omitted for a year to take out his certificate, was not liable to penalties under statute 12 Geo. 2, c. 13, s. 7, as a person practising in the county court, without having been legally admitted according to stat. 2 Geo. 2, c. 23. A person, being deputy clerk of the peace, and acting as attorney, was not liable to penalties under 22 Geo. 2, c. 46, s. 14, if he abstained from the actual exercise of his office. Faulkner v. Chevell, 10 Ad. & E. 76.

The crown alone can sue for the penalty where the statute does not say who shall recover it, unless an interest therein is given to some person by the statute, expressly or by sufficient implication, as if it be created for the benefit of a party grieved. Clarke v. Bradlaugh, 8 Ap. Ca. 354, D. P. It is not necessary to prove an authority from the crown or the person entitled to the penalties. Cole v. Coulton, 2 E. & E. 695; 29 L. J., M. C. 125. A corporation cannot maintain the action unless empowered to do so by statute. St. Leonards, Guardians of v. Franklin, 3 C. P. D. 377.

Evidence of commencement of the action.] The writ is, in all cases, the commencement of the action, and the statement of claim will show the day on which it is issued; but where the writ has been renewed, strict proof of the continuance of the writ is requisite. Vide ante, p. 643. Where the writ is dated on the day on which the penalty was incurred, evidence is admissible to prove that it issued after the cause of action accrued. Clarke v. Bradlaugh, 8 Q. B. D. 63, C. A., reversed in D. P., 8 Ap. Ca. 354, on another ground.

By 31 Eliz. c. 5, s. 5, actions or suits for forfeitures on a penal statute, limited to the Queen, must be brought within two years after the cause of action; and actions for penalties given to a common informer, suing qui tam, must be brought within one year. In Dyer v. Best, L. R., 1 Ex.

152, overruling Calliford v. Blawford, 1 Show. 353, this section was held to limit an action for a penalty, brought by an informer suing for himself alone, to one year; this decision was, however, disapproved by Bramwell, L. J., in Robinson v. Currey, 7 Q. B. D. 465, 471.

By 3 & 4 Will. 4, c. 42, s. 3, all actions for penalties, damages, or sums of money given by existing or future Acts to parties grieved, must be brought within two years after the cause of action. An officer of the Goldsmiths' Company suing for penalties under statute 7 & 8 Vict. c. 22, s. 3, is not a party grieved within this Act. Robinson v. Currey, 7 Q. B. D. 465, C. A.

Evidence of locality of the cause of action.] Formerly, in an action upon a penal statute, the plaintiff must in general have proved that the cause of action arose in the county in which the venue was laid; see 31 Eliz. c. 5, s. 2; 21 Jac. 1, c. 4, ss. 1, 2; Tidd, Prac. 431. The 31 Eliz. c. 5, s. 2, was, however, repealed by stat. 42 & 43 Vict. c. 59, and 21 Jac. 1, c. 4, ss. 1, 2, does not apply to penal actions given by subsequent statutes. Hicks' case, 1 Salk. 372; Barber v. Tilson, 3 M. & S. 429, 438; 1 Wms. Saund. 312 b (1). But where a statute which expired before 21 Jac. 1 was renewed by one subsequent to that date, it was held to be within 21 Jac. 1, c. 4. Shipman v. Henbest, 4 T. R. 109. Stat. 21 Jac. 1, c. 4, ss. 1, 2, does not apply to actions by parties grieved who sue for a penalty given to them, but only to common informers. Fife v. Bousfield, 6 Q. B. 100. Therefore, debt for extortion against a pound keeper, under 1 & 2 P. & M., c. 12, is not local. S. C.; Pope v. Davis, 2 Taunt. 252. This defence can be raised under the general issue by statute: 21 Jac. 1, c. 4, s. 4, vide infra.

Defence.

By 21 Jac. 1, c. 4, s. 4, "if any information, suit, or action shall be brought or exhibited against any person or persons, for any offence committed or to be committed against the form of any penal law, either by or on the behalf of the king, or by any other, or on behalf of the king and any other, it shall be lawful for such defendants to plead the general issue, that they are not guilty, or that they owe nothing, and to give such special matter in evidence to the jury that shall try the same, which matter, being pleaded, had been a good and sufficient matter in law to have discharged the said defendant or defendants, against the said information, suit, or action, and the said matters shall be then as available to him or them, to all intent and purposes, as if he or they had sufficiently pleaded, set forth, or alleged the same matter in bar or discharge of such information, suit, or action." This right to plead not guilty by statute is reserved by Rules, 1883, O. xix. r. 12, ante, p. 301; by that rule, that defence shall have the same effect as it before had.

O. xxi. r. 19, ante, p. 302, requires the defendant, when relying on the above section, to insert in the margin of the defence the words "By Stat. 21 Jac. 1, c. 4 (Public Act), s. 4," otherwise such defence will be taken not to have been pleaded by virtue of the statute. See further on this rule, post, Part III., Actions against constables.

This section applies to actions on statutes subsequent, as well as prior, to its being passed. Spencer, El. v. Swannell, 3 M. & W. 154; Jones v. Williams, 4 M. & W. 375.

To an action for treble damages for pound breach, on 2 W. & M., sess. 1, c. 5, s. 3 (s. 4, Ruff.), the defendant cannot plead "not guilty by statute,"