Duffy and Mehaffy against Lytle, 5 Watts 120

The opinion of the Court was delivered by Kennedy, J. ’According to the course of the common law, no rule seems to be better established; than that but one judgment can be had on the same bond against the same party. To this we have some exceptions created by statute, as in the case of the official bonds required to be given by sheriffs, constables, coroners, &c. It cannot be said, however, that there is any statute changing the rule of the common law in this respect, as regards the bond in question.

The statute of eighth and ninth Wm 3, c. 11, sec. 8, is, to be sure, applicable to it, but then that statute does not sanction or authorise the bringing of two suits and the recovery of two judgments. - It was passed for the purpose of relieving the obligor from the payment of the penalty, upon his failing to comply with the condition of the bond, where the damages actually sustained by reason thereof fell short of the amount of the penalty; and to prescribe a mode whereby the damages sustained might be assessed and levied as often as breaches' of the condition should happen to be committed.

The suit, in the first instance, is commenced upon such bond in the same manner since the passage of the statute, that it was before; and the plaintiff upon showing a breach of its condition is entitled to a judgment for the whole amount of the penalty.

The words of the statute, as to this, are, “the like judgment shall be entered;” but the jury trying the issue, in case one be joined, are required to assess the damages for such breaches of the condition, as the plaintiff upon the trial shall prove to have been broken; or if the judgment shall be given for the plaintiff on demurrer, by confession or nil dicit, the damages are to be assessed by a jury under a writ of inquiry of damages sued out thereon: And beyond the amount of the damages thus assessed and the costs, the plaintiff is not allowed to levy by execution upon his judgment.

The judgment, however, is still to remain in full force, notwithstanding the damages so assessed may be paid by the defendant, or levied from him by execution, as a further security to answer to the plaintiff such damages as he may sustain by any further breach of the condition of the bond; • upon which judgment he may have a scire facias against the defendant or his representatives, as often as any new breach shall be committed, calling upon him or them to show cause why execution should not be awarded upon the judgmeht; when the same proceeding, as in the action upon the bond, shall be had for assessing of the damages on account of such new breaches.

But a second action or judgment is not authorised to be maintained or had for the penalty, upon the bond, on account of other breaches, than those for which the judgmeht already rendered was given. It is perfectly clear that if there be a remedy for the loss occasioned by such other breaches, it must be by scire facias to be sued out upon the judgment obtained.

And indeed it would seem that as the statute does not direct any judgment to be entered for the damages assessed and for the costs, either in the case of a scire facias, or upon the return of an inquisition, that there can only be one judgment-, namely, the old judgment for the amount of the debt, that is; the penalty and nominal damages, merely for the detention thereof, say six cents, together with the costs of increase, vide Sergeant Williams, note in Gainsford v. Griffith, 1 Saund. Rep. 58, e.; Hankin v. Broomhead, 3 Bos. & Pull. 607.

The circumstance of this action being brought upon the bond previously to the one in which the- judgment was entered, that has been pleaded in bar to the further maintenance of this, does not seem to furnish a sufficient reason, why the plea should not be held good: Because, although the priority of an action may be a very good reason, why a subsequent one for the same cause shall not abate it, and why the first, when pleaded properly, should abate the second,' as the plaintiff ought not to be permitted to vex and harass •the defendant against his will, with two actions for the same cause, yet it is obvious, that it is not the priority in the commencement of the one action, that renders the judgment obtained therein a bar to the plaintiff’s obtaining a second judgment in the other; but because the first judgment, when given, whether it be in the action commenced first or last, extinguishes the original cause of action, and gives to the plaintiff, in lieu thereof, one of a higher order.

Instead then of the debt, as was the case here, being founded upon a bond, it became immediately upon the rendition of the judgment, though in the last action commenced, a debt of record that could be no longer controverted. And hence the defendant could not, thereafter, be said to stand indebted to the plaintiffs by a bond or specialty, but by a judgment, that had become matter of record which could not be questioned or denied. Under this view we think the judgment of the district court right. Judgment affirmed.