Bonds.

fendant heretofore, to wit, on [date of bond, but exact day not material,] at

Bonds.

[&c.,] by his certain writing obligatory sealed with his seal, and now shown

on the said judgment; and thereupon damages shall be assessed as aforesaid, and execution issue accordingly; and upon payment or satisfaction, in manner aforesaid, of such future damages, costs and charges, as aforesaid, all further proceedings on the said judgment shall be stayed; and so on, as often as the same may happen: and the defendant, his body, lands, goods and chattels, shall be discharged from the said execution, in manner aforesaid." It will be observed that the words which I have quoted from the English statute differ somewhat from those contained in the Statute of Ohio, as the latter does not embrace, in terms, that class of bonds which are given to secure the performance of covenants or agreements contained in a separate instrument. Whether this will affect the con struction of the Ohio Statute, may admit of doubt. No other material difference between the English and Ohio Statute exists, except that instead of merely requiring the "breaches to be assigned" ou default, &c., the English statute requires such "breaches to be suggested upon the roll."

It will be also observed that the 43d Section of the Practice act of Ohio, given above, provides “that where judgment by default, confession or demurrer as mentioned in the preceding section," &c. Now, the preceding section, which is section 42d, and given in the first part of this note, does not mention judgments by default, confession or demurrer, but the 41st, given above, does; and it is evident that the reference to the "preceding section" was intended to refer to the 41st section, and will no doubt be so construed.

These provisions of the statutes will probably receive the same construction in this State as in

England, from whence they were adopted.

But few cases are found in the English reports upon the statute of W. 3.; and Peake, in the ar

gument of the case of Humphrey v. Rigby, 18

Eng. C. L. Rep. 341, remarks, that the statute had lain dormant for a century.

By the common law, where the penalty was a security for the doing of several acts, it became the debt at law by the nonperformance of any one of the acts; and it was necessary therefore for a party to apply to a court of equity for relief, which was granted upon the terms of paying what was due in conscience. The 1 object of these provisions of the statute was to relieve partics from the necessity of going into a court of equity to obtain relief. The statute, while it gives the plaintiff the amount of the damages he has sustained, protects the defendant from the payment of more than is justly duc.

The suggestion of breaches seems necessary, first, where, upon the first breach, all that may become due is not payable; and secondly, where the damages are unliquidated, and must be ascertained by the verdict of a jury, as in cases of breaches of covenants or conditions to convey lands, &c. 9 Eng. C. L. Rep. 39, Per BEST, J.

These provisions do not, therefore, relate to common bonds conditioned for the payment of money, but to bonds, &c., conditioned for the performance of covenants or other collateral matter. The nearest to an exception to this rule is, where the court have held these provisions apply to bonds to pay money at different periods where part has not accrued due; (1 B. & Al. 214; 2 Taunt. 387;) yet they do not apply to a bond conditioned for the payment of a principal suin on a named day, and interest at fixed periods before that day, pursuant to the stipulations in a deed, if the action be brought after the day when the principal was to be paid, so that the whole sum is due, and nothing but calculation is necessary to fix the precise amount, claimable on the face of the bond. 25 Eng. C. L. Rep. 53. The reason why these provisions are applicable to bonds to pay money at different periods where some of the installments are not due, is, that the plaintiff is entitled to judgment for the penalty, so that he can issue a scire facias and assign breaches for nonpayment of the installments which afterwards accrue and become due. 9 Eng. C. L. Rep. 33, 39,

It seems settled in England, and in the States of the Union where the statute of W. 3. has been adopted, that the plaintiff has his election to de

clare for the penalty only, and set forth the breachformance, or to set them forth in his declaration. es in his replication to the defendant's plea of per1 Chit. Prec. 423, n.; Archb. Pl. 261, 262; 18 Eng.

C. L. Rep. 341; 1 Saund. 58 n. (1); 8 T. R. 255;

2 Saund. 187, a, 11. 2.; 2 Caine, 329; 2 Johns. 413; 2 Halst. 32; 4 Munf. 205.

In suits upon official bonds, by a party injured, the plaintiff must assign breaches in his declaration. 6 Ohio Rep. 150. Whether in the case referred to (6 Ohio Rep. 150) it was intended by the court to go out of the case and hold that upon other and private bonds it is necessary to assign breaches in the declaration, does not very clearly appear; but the decision itself is in accordance with the English decisions; for, the right of the party for whose use the suit is brought, to recover upon the bond, would not appear, except by the assignment of breaches in the declaration; and

Bonds.

to the court here, (w) acknowledged himself to be held and firmly bound to the plaintiff in the sum of dollars, to be paid to the plaintiff, [his heirs or (although often requested so to do) hath not as dollars, or any part thereof, to the plaintiff; to dollars; and therefore he brings his suit, &c.

assigns,]* yet the defendant yet paid the said sum of

the damage of the plaintiff of

2. On a Bond conditioned for the payment of money assigning breach. (x)

Commencement ante, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.], by his certain writing obligatory, sealed with his seal, and to the court here now shown, bound himself [his executors, and administrators, according to the bond,] unto the plaintiff, in the sum of [as in the bond,] · dollars, to pay [according to the bond,] or cause to be paid unto the plaintiff, or order, the sum of dollars, with interest for the same, on the

day [&c.]; and the plaintiff in fact saith that the defendant did not pay, or cause to be paid to the plaintiff, the said sum of — dollars, with interest for the same on the said day [&c.], or at any other time whatsoever, but therein wholly failed, whereby an action hath accrued to the plaintiff to demand and have of the defendant the said sum of [the penalty] — dollars. Yet the defendant hath not paid the same, or any part thereof; to the plaintiff's damage dollars, and thereupon he sues, &c.

3. On several Bonds. (y)

Commencement as ante, p. 181 to 188.] For that, whereas, the defendant, heretofore, to wit, on [&c.] at [&c.], by his certain writing obligatory, sealed with his seal, and to the court here shown, acknowledged himself to be held and bound to the plaintiff in the sum of dollars; to be paid to the plain

for this reason the assignee of a replevin or bail bond must in England assign breaches in his declaration. 1 Chit. Pl. 8 Am. ed. 369.

In England the plaintiff may, under the statute of W. 3, suggest the breaches at the end of his replication. 18 Eng. C. L. Rep. 341.

The usual practice and course of proceeding, however, in England, under the statute of W. 3, is this: The plaintiff may declare for the penalty as upon a single bond, or a bond without condition— the defendant then in his plea sets out upon oyer the condition of the bond, and pleads a general performance; the plaintiff thereupon assigns his breaches, to which the defendant pleads, and the issues thereon joined are tried like other issues. Where, however, the condition of the bond is to perform covenants in a separate instrument, the defendant must, in his plea of general performance,

set out such instrument and the covenants it contains: and in such case it is not, in general, sufficient to plead a performance generally of the condition, though such plea seems to be cured by a replication. 4 East, 340, 346, n. (b); 1 Chit. Pl. 419; 1 Saund. 58, n. 1.

The plaintiff may set out the conditions and assign the breaches in the declaration, as in the last precedent. This course is the most simple and is generally adopted in practice. For the mode of proceeding in suggesting breaches upon the record and upon judgment on demurrer and default, see post, vol. 2.

(w) See note (h) supra.

(x) It is not usual to assign a breach of a money bond. See note, ante, p. 355. For the above form, see 1 Harris' Ent. 447; 5 Went. 361.

(y) Ece form, 1 Saund. 291.

Bonds.

tiff on request; and whereas, also, the defendant, heretofore, to wit, on [&c.] at [&c,], by his certain other writing obligatory, sealed with his seal, and to the court here shown, acknowledged himself to be held and bound to the plaintiff in the sum of dollars; to be also paid to the plaintiff on request; whereby an action hath accrued, [&c., as in form No. 1.]

4. Surviving Obligee against surviving Obligor.

For that, whereas, the defendant, and one E. F., in the lifetime of the said E. F., who has since deceased, and whom the defendant hath survived, on [&c.] at [&c.], by their certain writing obligatory, sealed with their seals, and to the court here shown, acknowledged themselves to be held and firmly bound unto them, the said A. B. and G. H., in the lifetime of the said G. H., who is since deceased, and whom the plaintiff hath survived, in the sum of dollars, to be paid to the said A. B. and G. H., on request. Yet the said defendant and E. F. did not, nor did either of them, during the lifetime of the said E. F., nor hath the defendant, since the decease of the said E. F., nor hath the legal representatives of the said E. F. (z) paid the said money above mentioned, or any part thereof, to the said G. H., during his lifetime, or to the plaintiff before or since the decease of the said G. H.; but the same remains in arrear and unpaid, to the damage of the plaintiff, of dollars; and thereupon he sues,

&c.

5. Assignee of an Assignee of Obligee against Obligor. (a) Commencement as ante, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.], by his certain writing obligatory, sealed with his seal, and now to the court here shown, acknowledged himself to be held and firmly bound to one E. F., in the sum of dollars, to be paid to the said E. F., or order, on [request]; and the said sum of money being due and unpaid, the said E. F. then and there indorsed the said writing obligatory [under his hand and seal] to one G. H., who then and there indorsed the said writing obligatory [under his hand and seal] to the plaintiff, whereof the defendant then and there had notice, [and which said indorsements are to the court here shown,] whereby an action hath accrued, [&c., as in preceding forms.]

6. Husband and Wife against Husband and Wife.

Commencement as directed ante, p. 193.] For that, whereas, the said Mary, whilst she was sole, and before her intermarriage with the said D., to

(z) The statute of this State makes the representatives of a deceased joint debtor liable. Stat. 355, § 92.

(a) Stat. 587. The form of declaring upon the

indorsement, &c, can be readily made up from the preceding forms in assumpsit, upon bills of exchange and promissory notes. See ante, 349, n. (a).

Bonds.

wit, on [&c.] at [&c.], by her certain writing obligatory, sealed with her seal, and to the court here shown, acknowledged herself to be held and firmly bound. by the name of [as in the bond] unto the said Eliza, whilst she was sole, and before her intermarriage with the said B., by the name of [as in the bond] in the sum of dollars, to be paid to the said Eliza on request; whereby an action hath accrued to the plaintiffs to demand and have of, and from the defendants, the said sum of money. Yet the defendants have not, nor hath

either of them, paid the same to the plaintiffs, or either of them, before or since said several intermarriages; to the damage of the plaintiffs of — dollars; and thereupon they sue, &c.

7. Surviving Obligee against Husband and Wife, the female defendant being the surviving Obligor.

For that, whereas, the said Eliza, whilst she was sole, and one S., in his lifetime, to wit, on [&c.] at [&c.], by their certain writing obligatory, sealed with their seals, and to the court here shown, acknowledged themselves to be held and bound to the plaintiff and G. H. and J. K. (in the lifetime of the said G. H. and J. K., who have since deceased, and whom the plaintiff hath survived,) in the sum of dollars, to be paid to the said plaintiff and G. H. and J. K. on request; whereby an action accrued to the plaintiff and G. H. and J. K., in the lifetime of the said G. H. and J. K., and to the plaintiff, since the decease of the said G. H. and J. K., (whom the plaintiff survived,) to demand and have of the said Eliza, when she was sole, and of the said S. in his lifetime, and of the said defendants and S., in the lifetime of the said S., after the marriage between the said defendants celebrated, and of the said defendants after the death of said S., the said sum of money. Yet the defendants and the said S., or the legal representatives of the said S., have not, nor hath either of them, at any time, paid said sum of money, or any part thereof, to the said G. H. and J. K., or either of them, during their respective lifetime, or to the plaintiff, before or since the decease of the said G. H. and J. K., or either of them, but the same remains in arrear and unpaid; to the plaintiff's damage dollars; and thereupon he sues, &c.

8. On Bond, conditioned for the conveyance of Land-assignment of breaches under the Statute.

For that, whereas, the defendant, on [&c.] at [&c.], by his certain writing obligatory, sealed with his seal, and now to the court here shown, acknowledged himself to be bound to the plaintiff in the sum of dollars; to be paid to the plaintiff on request, which said writing obligatory was, and is, subject to a certain condition thereunder written, now to the court here shown, whereby it is provided, that if the defendant, upon payment to him of the sum of five