MEAKINGS, et al. VS OCHILTREE, et al., 5 Port. 395

COLLIER, J. The plaintiffs in error brought debt against the defendants, in the Circuit Court of Sumter, upon a bond — in which they acknowlege themselves to be held and firmly bound unto the plaintiffs, in the sum of four thousand dollars, with a condition thereunder written, in which it is recited, that the defendant, Ochiltree, was indebted to the plaintiffs on two promissory notes; the dates, amounts, and times of payment of each, are respectively given. It is further stated, that the plaintiffs had agreed to give further time, and not to sue the defendant, Ochiltree, on his notes.

In consideration of which, Ochiltree had agreed, that he would •on the first day of February, next succeeding the date of the bond, “ suffer, allow and permit,” Peter Doty, as the agent of the plaintiffs, to select from all the notes and accounts that might be due the defendant, Ochiltree, on the first day of January next preceding the day of selection, an amount equal to his notes to the plaintiffs. The declaration charges the refusal of Ochiltree to permit the selection to be made from his notes and accounts, and contains all proper averments.

To this declaration the defendants demurred, and their demurrer was sustained by the Circuit Court; and the plaintiffs bring their case here for revision. It is agreed by the parties, that the only question to be raised in this Court is, whether debt is maintainable upon the bond declared on.

At Common Law, the penalty of a bond, conditioned for the performance of covenants, was held to be the debt, and the usual mode of declaring, was upon the bond merely; to which the defendant, if he relied upon a satisfaction, after craving oyer, and setting forth the bond and condition, 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 recovered a judgment for the penalty, without regard to the damages he had sustained.

To be relieved from such judgment, where the penalty exceeded the damages, the defendant was forced to resort to equity, for relief, — there, an issue of quantum damnijicatus, was directed, and the amount for which the execution was allowed to be enforced, was graduated by the damages to which the plaintiff was justly entitled.

To enable Courts of law to administer justice definitively and prevent circuity of action, the statute of 8 and 9, Wm, 3, c. 11, s. 8, was enacted,— which requires the plaintiff to “assign as njany breaches as he shall think fit,” and the jury are required to assess, “not 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.” The form of the judgment, still is, that the plaintiff recover the amount of the penalty of the bond, dischargeable by the damages ascertained by the verdict.

But, notwithstanding the statute authorises Courts of law to afford to a defendant the relief, which equity alone could previously give, yet the penalty of the bond, is still considered to be the debt, — in fact, the form of the judgment, clearly indicates this, (1 Saunders R. 58, C, note e. and cases there cited.) And, as at common law, debt would lie upon a bond for the performance of covenants, it is still a proper remedy. (2 Selwyn’s N. P. 517. Phil. ed. of 1808. 12 Johns. R. 216. 13 Johns. R. 189. 3 Blackford’s R. 499.) The first

section of our own statute of eighteen hundred and twenty-four, “regulating proceedings on penal bonds,” is almost a literal transcript of the 8th

section of the 8th and 9th Win. 3, already quoted, and has been holden by us, to require the same proceeding and form of judgment. The decisions which have been made under the latter, must control the construction of our statute; and these have ■determined that bonds, such as the one under consideration, may still be sued on in an action of debt. The judgmént is reversed, and the cause remanded. HOPKINS, C. J. not sitting.