
    BROWN adsm. HOY.
    On motion to quash writ of attachment.
    Affidavit that defendant “ is indebted to plaintiff in the sum of &o., upon covenant, it being the penalty fixed therein upon breach,” is insufficient.
    
      The writ, “to answer unto J. H., that he render to him 52,000 which to him he owes upon covenant,” is defective, it is neither in debt nor covenant, and has no style of action.
    The affidavit of Hoy, the plaintiff in this case, is, that Brown, the defendant, “is indebted to him in the sum of two thousand dollars upon covenant, it being the penalty fixed therein upon breach.”
    The writ is “ to answer unto James Hoy, that he render unto him two thousand dollars, which to him he owes upon covenant ”
    
      H. W Green, for the defendant, insisted:
    1st. That attachment will not lie, except where defendant may be held to bail, and cited Sergeant on attachment, 50, 51. Jeffery v. Woolley, 5 Halst. 123. Peacock v. Wildes, 3 Halst. 178. 1 Archb. Pr. 48, 51.
    2nd. That the term “penalty,” ex vi termini, means a security for damages. 2 Stark, Hold. 619, title penalty, Phil. ed. Wildey v. Thornton, 2 East, 409.
    3rd. That though a party may be held to bail for stipulated damages, yet the affidavit must show that they are such, and that there had been a breach of the contract. Stinton v. Hughes, 6 T. R. 13.
    4th. That the writ is bad; it contains no style of action, and is neither in debt nor covenant.
    
      S. B. Hamilton and I. H. Williamson, contra,
    
    cited Low v. Peers, 4 Burr. R. 2228. 1 Tidd’s Pr. 195.
   By the Court.

The affidavit is clearly insufficient. It states that two thousand dollars is the penalty fixed in the covenant for a non-performance of it, but it does not state that any breach has been'committed. Besides every penalty, is not in the nature of liquidated damages; on the contrary, a penalty is usually in covenants, only to cover such damages as the party may be entitled to. The affidavit ought therefore not only to have shewn that there had been a breach of the covenant, but that the party had stimulated to pay a particular mm in satisfaction. But it is not stated, what the agreement was, nor in what respect, if any, it was broken. The writ too, is neither in debt, nor in covenant, but partly in both: it is “ to render to the plaintiff, two thousand dollars, which to him the defendant owes upon covenant.” It gives to the defendant no style of action to which he may appear and put in bail.

Let the writ bo quashed.

Cited in Cheddick’s Ex’r v. Marsh, 1 Zab. 466.  