
    [*] BEATTY and al. against IVINS.
    ERROR PROM GLOUCESTER PLEAS.
    On judgment by default, on a bond for prison l-mbs, a jury must asesas tbe damages Capias- may not issue -wiinout affidavit. Waiver of bail must be entered on tbe minutes.
    The action below was brought on a bond for the prison limits. The bond and condition was set out in the declaration, and a breach assigned; there was a judgment by default, for the whole penalty of the bond.
    It was now contended, on the part of the plaintiff in error, who was the defendant below, that this was error; that the judgment below should have been an interlocutory judgment, and a writ of inquiry issued to assess the damages; that this was a bond for the performance of covenants, and came within the statute.
    On the part of the defendant in error, it was said, that this did not come within the provisions of the statute; that the statute requiring breaches to be assigned after judgment by default, could not apply to this case, where the breaches had already been assigned in the declaration.
   Pennington, J.

Oúr statute is copied from the statute of William, the phraseology of which arose from the ancient manner of pleading. Before the statute of William, the practice of pleading was, to declare generally on the penalty of the bond. The defendant, on obtaining oyer-of the bond and condition, pleaded performance, when the plaintiff replied, and assigned breaches; therefore, in cases of judgment by default, there were no breaches assigned. Hence, the provision in the statute that in such cases breaches must [467] be assigned. The more modern and approved practice is to declare on the whole bond, and assign breaches in the declaration. But this does not prevent the necessity of a jury passing on the breaches assigned.

By the Court.

A jury ought to have passed on the breaches assigned, and assessed the damages.

Judgment must be reversed.

[*] A question arose whether or not a writ of inquiry should be awarded out of this court? — On which,

The counsel for the plaintiff in error observed that there were other errors which entitled him to a reversal of the judgment in toto. One of which was that the defendant had never been brought into court. It was true that a capias had issued, and that the sheriff had returned thereon cepi corpus ; but no bail had been put in. He also alleged that no affidavit had been made to hold to bail; nor was there an order of a judge to hold the defendant to bail. That in such case a capias could not issue at all under our practice act; but a summons was the proper process.

To this the counsel for the defendant in error answered that before he had declared he had waived bail, and that he understood the practice to be that although no affidavit had been made for bail, or order of the judge procured, yet that the plaintiff might proceed by capias and waive bail. It appeared that no entry of waiver or bail had been entered in the minutes of the court; but the plaintiff’s attorney had indorsed on the writ that bail was waived.

By the Court.

By our practice act, a plaintiff is not entitled to bail unless he makes the affidavit required by the statute to hold the defendant to bail; or unless he procures an order of a judge to hold the defendant to bail. And in cases where the plaintiff is not entitled to bail, the plaintiff must proceed by summons, and not by capias; it was error to issue a capias in this case. But even if a capias was the proper process, yet the plaintiff below is not benefited; for he has proceeded to declare before he has the defendant in court. It is true, our act authorizes him to waive his right to bail; but this must be done in conformity to the act, which is to enter such waiver on the minutes of the court. This has not been done, but only indorsed [*] on the writ. Therefore, whichever way you take it, you are beset by error.

Griffith and Pearson, for plaintiff.

Davenport, for defendant.

Judgment reversed.

Cited in Morris Can. & Bkg. Co. v. Van Voorst, 4 Harr. 9. 
      
      
        Addis and another v. Evans, was in all things the same as in this cause; and for the same reasons, reversed this term.
     