
    James M. Hurt, Ex’r, vs. John Dougherty, et al.
    
    '1. Doboible Entry and Detaineb. Certiorari. Bond for costs and dam^ ages. What may he recovered. Act of 1835, ch. 84, §$ 1 and 2. A judgment for costs against a defendant in unlawful detainer is no satisfaction of the bond required by the act of 1835, Gh. 84, 1 and 2, upon removing said cause by certiorari into the Circuit Court. The plaintiff has also' his right of action upon the bond for damages sustained by reason of the’ unlawful detainer;
    2. Covenant Heal. Act of 1835, ch. 84, § 2. The bond required by the? act of 1835, ch. 84, § 2, for certiorari to remove cases of forcible entry and. datainer and unlawful detainer into the Circuit Court, is not a covenant real running with the land; and suit for damages- may be maintained thereon by the personal representative-.
    3?BOM CAREOLE.
    This is an action of covenant from- the Circuit Court of Carroll county. The conditions of the bond1 sued on, and the other material facts of the case are sufficiently given in the opinion. At the December Term, 1852, before Fitzgerald, Judge, there was verdict and judgment for the defendants. The plaintiff appealed in error.
    L. M. Jones, for the plaintiff. '
    The bond upon which the action in this case is-brought, is given under the act of 1835, ch. 84, § 2,. N. & C., 348.
    
      The charge of the Judge amounts to this, that the bond upon which this suit is brought, is a covenant real, running with the land; and 2d, that there was no breach in the ancestor’s lifetime; hence the action could not be sustained by the personal representative, but must be brought in the name of the heir.
    “ Covenants real, or such as are annexed to estates shall descend to the heir, and he alone shall take advantage of them. — Bacon Ab. Title Cov., E. 2. — For further illustration of what is a covenant real, and binding assignee, 3. For further illustration of what' is, or is not a covenant real, 3, Com. Dig., title Cov’t, B. 1, et. seq. 255.
    As instances of covenants real, may be mentioned covenant of warranty of seizin, for quiet enjoyment, for further assurance of title, &c., covenants of par-cenors upon petition to acquit each other of suits issuing out of the land. We see that in the instances mentioned, the covenant does and must necessarily descend with the land; that the covenant is inseparable from the estate; is in truth a part and parcel of the title to the estate, and could not well exist, separate and apart from the estate.
    Analogous in principle are the cases, where a party seized in fee makes lease for life or years, reserving rent; and there are covenants for repairs, &c., &c. In, all such cases the reversion would draw along with it any rent not due, on death of lessor, or repairs, &c.,. as an incident, and hence the right of action must exist in the heir.
    “ Chattels real, or things immovable, are such as, are annexed to, and savour of, the freehold and inheritance, such as an interest for years, in houses, lands, advowsons, &c., the interest in an estate by statute staple, merchant, or elegit and mortgages, and these also regularly go to the executor.”
    The condition in the covenant in this case, is to prosecute the suit with effect, or to pay costs, damages, &c. How can the covenant in this case be held to be a real covenant running with land? Is it not a personal covenant, to do an act, purely personal, wholly irrespective of land? viz: To prosecute a suit with effect, or on failure, to pay costs, damages, &c.
    And would the idea ever have presented itself to the mind, that this is a real covenant, running with the land, but for the fact, that in estimating a portion of the damages, you have to look to land in ascertaining the amount?
    Our statutes expressly provide, that in actions of forcible entry and detainer, title shall not be inquired into. All that we can legally know in such action is, that the party bringing such action, if successful, had the right of possession as against the defendant.
    If that right of possession spring from a term of years, statute staple, or merchant, or were even that naked right of possession which a prior trespasser has against .all subsequent trespassers; yet would the plaintiff have a right of recovery, and the bond given under the .statute, would be a covenant real, running with the land, and would descend to the heir, as something inseparable from the realty, and the heir alone would have the right of action upon the land as having descended with the realty to him, arid as part of his estate, when in fact no estate ever did descend to him, or even could in many instances, and when, if in fact it had descended, you can only know, as matter of law, that the plaintiff was entitled to the possession. This manifest absurdity, it occurs to me results from holding that the bond in this case is a covenant real.
    But were this a covenant real running with the land, it is insisted that there was a breach in the lifetime of testator. The condition was never performed; testator recovered in his lifetime; some two years after the bond was given, he died.
    The evidence shows that the damage during testar, tor’s life, was from $400.00 to $600.00. Tide: Shaw vs. Wilkins, 8 Humph., 647; Havins vs. Bickford, 9 Humph., 673; Williams on Ex’rs., 680, 3d Am. from 4th London Edition. The cases of Kingdom vs. Notile, and King vs. Jones, appear to be a departure from the old rule, and they have not been followed in more recent adjudications. Mitchell vs. Warren, 5 Conn. R. 497. The determination in the case of Kingdom vs. Notile is against the ancient, uniform and established law of Westminster Hall. — 1 Selwyn’s Nisi Prius, Title Cov’t., 481, et seq. and notes.
    M. and H. Beowkt, for the plaintiff.
    This is an action of covenant on a bond given for the prosecution of an action of forcible entry and detainer, under the act of 1835, ch. 84.— See Caruth-ers and Nicholson’s Rev. 348
    On the trial before the jury, the Court charged the jury, “ that the covenant sued on in this action, oñ the 
      
      death of Robert Hurt, descended to and vested in his heirs at law, and that his personal representative could not maintain an action on it. That there was no breach of the covenant until the action for forcible entry and detainer was ended and decided, and Robert Hurt having died during its pendency there was no breach in his lifetime, and consequently no right of action in his personal representative.'1'1
    
    On this charge, the jury found® for the defendants. A new trial, being refused, plaintiff appealed to this Court.
    In this opinion of the Court, we think there is manifest error. The Court assumes the paper sued on to be a covenant real, running with the land. — See 2 Bacon’s Ab., page 565, Title Cov., E. 2., where, as will be seen, it is entirely different in all its essential features. The paper sued on is a “bond,” given under a statute for the prosecution of a suit. Instead of running with the land, it runs with the law suit, and is to secure such “ costs and damages ” “ as shall decree to the defendant ” in the suit. As a part of these “ damages ” he may recover for the “wrongful detention;” — certainly the paper sued on is as far removed from the class of covenants real running with the land, referred to by the Court, as could well be imagined.
    The first suggestion of the Court is, “What effect or meaning is to be given to the word damages, used in the condition of this bond ? Has it any effect at all? In all suits, the Court adds, commenced by writ or summons, the plaintiff is required by statute, to give bond and security for the prosecution of his suit, and the form of the bond is precisely like this —“ to prosecute with effect, or in case of failure, to pay all •costs and damages incident to such failure.”
    The Court seems to be laboring under a mistake, in regard to .the condition of the bond, and probably :a mistake also as to the statute under which it was .given.
    The bond in question is dated and was executed the 2d of March, 1840. This was before the passage of the act of 1842, chap. 86. It was given under the act of 1835., chap. 84. The first section provides that it shall be the duty of the Judge, “If he shall be of opinion said petition ought to be granted, to order the applicant for such writs to give bond and security to pay and satisfy all such costs and damages, as shall accrue to the defendant in the petition for the wrongful prosecution of his suit.” The second section is in these words, “It ©hall be the duty of ¡the clerks of the Circuit Court hereafter, when they shall take a bond and security for the prosecution, of ,a suit for forcible entry and detainer, or unlawful .detainer, to take such bond conditioned to prosecute such suit with effect, or to pay and satisfy all costs •and damages for the wrongful prosecution of such suit, and to pay and satisfy the defendant in damages for the wrongful detention of the premisesThe bond in. this case follows ¡the words of the second section of this statute, and is conditioned to pay damages for the “wrongful detention.”
    This is therefore a bond securing two objeets. 1st. It is for “costs and damages” for the wrongful prosecution of the suit; and second, to secure the payment of “ damages ” for the wrongful' detention of the premises.”
    By law a judgment by motion could be rendered on this bond for “ costs and damages,” arising from wrongful prosecution of the suit, which was the costs, and nothing more. But “ damages for the wrongful detention of the premises,” (which included all damages growing out of that detention, and springing from the wrongful acts or possessions of the defendant while holding possession wrongfully,) could not be recovered in the forcible entry and detainer suit. The verdict was guilty or not guilty, and the judgment for possession and costs ; — no • damages beyond costs could be recovered. (See the statutes, 'and see the verdict in this case.) The damages beyond costs was the proper subject for another action brought on the bond. This action on the bond after the determination of the forcible entry and detainer, is the only remedy for damages beyond cost.
    
    The act of 1842, chap. 86, (passed after the commencement of the forcible entry and detainer in question, and not applicable to it,) authorizes a recovery of damages beyond costs. On bonds given under the act of 1835, and before that statute, the only remedy was by separate action. This is believed to be the plain operation and effect of the statutes, and the uniform practice under them. If this is not correct, what remedy _ had a party on his bond to secure him in damages for wrongful detention before the act of 1842? This act gives no new right, it gives an additional remedy only. It allows these damages to be assessed in the forcible entry and detainer case, without driving the party to another action, which could not be done before that statute.
    We think, therefore, that this is not an ordinary .bond for costs.' It goes far beyond this and covers rents, and profits, and all other damages arising from wrongful detention. We think that we find no remedy for these damages in the forcible entry and detainer case. And it necessarily follows that a judgment by motion for casts is no bar to our recovery in this action.
    The pleadings in the cause are believed to be correct. But whether so or not, does not appear to be material to investigation. No such question is presented by the record. We ask a reversal, and that the cause be remanded.
    The certiorari is not in forcible entry and detainer cases a substitute for an appeal.— See act of 1821, ch. 14, § 18. It is a suit to reverse the decision of the magistrates. “The defendant” referred to in the act of 1835, ch. 84, is the defendant in the proceedings commenced in the Circuit Court. The defendant referred to, is the same in both sections. The first section refers to a case where the plaintiff in the .certio-rari is not in possession. The second section, to where he is in possession, in which case he must give a bond with the additional condition. The bond in question is under the second section.
    I. R. and A. Hawkins, for the defendants:
    This action is brought upon a covenant to pay rent, and against damage to land, and is a covenant real;— covenants real are those which have for their object, something annexed to, or inherent in, or connected with land or other real property.— 3 Cruise on Real Property, 68, § 16. Such covenants run with the land.
    The suit should have been in the name of the heirs, and not the executor, as covenants real go to the heirs and not the executors.— 3 Cruise on Real Property, 68, § 16: Chitty on Con., 308: Williams on Ex., 518 to 21.
    Covenants for rent are covenants that run with the land.— 3 Cruise on Real Property, 70, 71.
    Where the lessee covenants to repair and fails, the covenant is annexed to the land, and descends to the heir.— 3 Cruise, 69, § 19: Lougher vs. Williams. In this case it was so ruled though the heir was not named.
    A covenant which runs with the land will go to the heir, not only without naming him, but where it is made with the covenantee and the executors.— 1st Williams on Ex., 569.
    And the heir may have an action on a covenant real, although nothing has descended on him from the ancestor, with which the covenant can run. — Williams on Ex., 568.
    According to the old authorities, when such a covenant has been broken, in the lifetime of the testator, the rule was that the personal representative might sue, but this rule has been directly qualified, in the case of Kingdom vs. Nottle, and King vs. Jones, in which it was held that when there are covenants real, that is, which run with the land and descend to the heir, though there may have been a formal breach in the lifetime of the ancestor, yet if the substantial damage has taken place since his death, the real representative and not the personal, is the proper plaintiff.— Com. Dig. 9: Williams on Ex., 569-70.
    Although the breach accrues in the lifetime of the ancestor, yet if the ultimate damage be not sustained until after his death, the action remains to the heir and not to the executor. — King vs. Jones: 1 Williams on Ex., 570.
    This court, in the case of Shaw et al vs. Wilkins, administrator, 8 Humph., 650-1, recognise the 'cases of Kingdom vs. Nottle, and the case of King vs. Jones, as authority.
    The right of a personal representative to sue on a breach of covenant, made with the deceased, is confined to cases in which the breach can be stated as a damage to the personal estate.— 1 Williams on Ex., 572.
    If rent be not due at the death of the ancestor, the rent goes to the heir and not to the executor.— 1 Williams on Ex., 586, 7, 8.
    The plaintiff has no where in his declaration alleged that the interest of his testator was a chattel interest, and that the damage was to his personal estate. It must be alleged that the testator had a chattel interest, otherwise it will be presumed that he was seized in fee; then the rents belong to the heir and not the executor. — 1 Williams on Ex., 584.
    To entitle an executor to maintain an action upon a covenant made with his testator, he must allege in his declaration that the breach accrued in the lifetime of the testator, and that the damage thereby was to his personal estate; — neither of these facts are alleged in this case. But the plaintiff declares for the use and wear of mills, for cutting growing timber, and for rents, and does not assign the breach in the lifetime of the testator. In this case the breach was some three years after the death of the testator.
    ' It is insisted by the plaintiff’s counsel, that this is a bond given to secure the plaintiff against cost and damages; upon which the defendant, Dougherty, prosecutes his suit, ánd to secure him in damages for the wrongful detention of the premises; and that he, upon his motion to recover cost, could not recover for the wrongful detention' of the premises; therefore, he insists, that he has, notwithstanding his former recovery, a right to prosecute this, a second suit; for his motion against the securities must be regarded in that light, and held to be by him the covenantee, a suit upon the bond. To permit him to prosecute this suit under the circumstances, would be to allow the covenantee to maintain two separate suits upon the same bond; but it is argued that they are separate and distinct covenants, although in the same bond. To this it is answered; admitting, for the sake of argument, that they are distinct covenants, yet they grow out of the same transaction, and if broken at all, are simultaneously broken, and to permit two suits to be brought upon a covenant of a bond, containing two or more separate covenants, all growing out of the same transaction, and broken at the same time, would be to permit a plaintiff to harrass a covenantor with unnecessary suits, and to tax him with unnecessary and ■unusual costs. It cannot be said in this case that there are not two suits upon this bond, because the plaintiff elects to prosecute his rights in a summary way, that being a provision in our law for the benefit of plaintiffs, he by taking his judgment upon motion against Dougherty and the securities, has elected that as his remedy. If he had not so intended he might have taken his judgment against Dougherty alone for the cost, and then have prosecuted his right by action in covenant or upon sci. fa. against Dougherty and the securities.
    But it is assumed that this bond is not like other bonds, and that in addition to the security for cost, that it is a security for the injury to the possession, and therefore, that the verdict in this cause ought to be set aside. There is in this record no proof of an injury to plaintiff’s possessions, and inasmuch as he cannot recover for an injury to the freehold, the testimony of that character all having been objected to, there was no proof upon which the jury could find in his favor: — this Court will not reverse when justice has been done. Inasmuch then, as the breach has been once judicially ascertained and damages adjudged, no other damage could be presumed. The only proof on the subject of damages in this record, is, as to waste in timber and other injury to the freehold, for which. the plaintiff cannot recover, as was determined in the case of Suttle vs. White. — 1 Swan’s Reports.
   HaeRis, J.,

delivered the opinion of the Court.

Robert Hurt, plaintiff’s testator, brought an action against Dougherty, for forcibly detaining the mills and land particularly set forth and described in his warrant. He recovered judgment against him before three justices of the peace for the county of Carroll, and Dougherty brought the cause by writs of certiorari and supersedeas, into the Circuit Court of said county; to obtain said writs, he and the other defendants, as his securities, executed the bond before the clerk, upon which the present action is founded. The conditions of the bond are, that he shall prosecute his certiorari with effect, or in case of failure therein, he will pay all costs and damages for wrongfully suing out said writs and prosecuting said suit, “and pay and satisfy the defendant in damages for the wrongful detention of the premises, then this bond to be void, else to remain in full force and effect.” Upon a trial in the Circuit Court, a jury found Dougherty guilty of the forcible detention of the premises, and there was judgment rendered against him and his securities for the costs, and a writ of restitution awarded; and Dougherty prosecuted an appeal in the nature of a writ of error, to this Court. During the pendency of the appeal, Hurt died; his death was suggested, and the appeal abated. The judgment in the Circuit Court was revived on scire facias, in the name of his heirs, who were afterwards put into the possession of the premises; and this action of covenant is brought on the bond by his executor, for the purpose of recovering “ damages for the wrongful detention of the premises.” To a declaration in the ordinary form, with a proper assignment of breaches, there is a plea of “ covenants performed.”

Upon the trial in the Circuit Court, the defence was rested on two grounds: First, that as there was judgment rendered by the Circuit Court for the costs in said action of forcible detainer against the defendants, agreeable to the second condition of the bond, it was-assumed that it was a satisfaction of the bond — that it could not be split into several causes of action, and that, therefore, this cause of action could not be maintained. Second, that the bond was a covenant real, running with the land, and that, upon the death of Robert Hurt it descended to, and vested in his heirs, and that this action could not be maintained by his personal representatives.

This latter ground of defence was fully sustained in the charge the Circuit Judge gave to the jury, to which exception was taken by the plaintiff; there was. verdict and judgment for the defendant, a motion for a new trial made and overruled, and an appeal in the nature of a writ of error to this Court.

We will examine these grounds of defence in the order in which they are presented; and, first: Was the judgment against these defendants for costs, a satisfaction and discharge of the bond? We think not. This bond was taken pursuant to the provisions of the act of 1835, ch. 84, C. & N., 348. The first section requires the party applying for writs of certiorari and supersedeas, in cases of forcible or unlawful detainer, “to give bond and security to' pay and satisfy all such costs and damages as shall accrue to the defendant in the petition for the wrongful prosecution of his suit.” And the second section requires this additional condition to be in the bond, — that is: That he shall “ pay and satisfy the defendant in damages for the wrongful detention of the premises.”

It is clear, that it was the intention of the Legislature in requiring these two distinct conditions in the bond, to secure the defendant in the petition,” not only in the costs, but also in the “damages for the wrongful detention of the premises.” But as the law then stood he could only recover in the action in which the bond was given — the costs provided for by the condition first above noticed; then, certainly it was the intention of the Legislature that he might bring an original suit on the bond for a breach of the second condition, to recover “ damages for the unlawful detention of the premises.” Otherwise, the second section of the statute and the condition under it in the bond, would be wholly nugatory.

We could not suppose the Legislature guilty of such an absurdity. As to the second ground of de-fence, that this is a covenant real running with the land, and upon the death of Robert Hurt it descended to and vested in his heirs, we think it wholly untenable. This is a statutory bond given for the prosecution of a suit, and possesses but few of the elements of a covenant real, running with the land; but we deem it unnecessary to enter upon the discussion of that question, as we think it is clear there was a breach of the covenant in the liietime of Robert Hurt, and that the right of action survived to his personal representatives.—See Shaw et al. vs. Wilkins, Adm’r, 8 Humph., 647.

The failure of Dougherty to prosecute his suit with effect in the Circuit Court, was a breach of his covenant. It is true, that by his appeal in error to this Court, he suspended the operation of the judgment of 4he Circuit Court, but when his appeal abated, it left that judgment in full force, and was a breach of the covenant from the day it was rendered. We therefore think, that the Circuit Judge erred in his instructions to the jury, when he held that this was a covenant real — that there was no breach during the lifetime of Robert Hurt and that this action could not be maintained by his personal representative.

As to what are the elements or grounds of damages embraced by the words of the statute and bond, for the wrongful detention of the premises,” at present we give no opinion; that question not being properly before us, the Circuit Judge having given no charge upon that point.

The judgment will be reversed, and the cause remanded for another trial.  