
    *Craghill and Others, Sureties of Little, v. Page, Governor, &c. and Little’s Administrators v. The Same.
    May, 1808.
    Office Judgment- — When Writ of Inquiry May Be Executed. — A writ of inquiry cannot be executed in the General Court, or a District Court, at the term next succeeding the rule day on which the office judgment was confirmed; because the defendant has the whole term to set aside the writ of inquiry, and plead to issue.
    Bonds — Collateral Condition — Assignment of Breaches.  —In a debt on a bond with collateral condition, if the breach he assigned in the very words of the condition, it is sufficient.
    Same — Judgment by Defendant — When Bond Part of Record. — In such case, a judgment being obtained by default, and a writ of inquiry executed, no advantage can be taken of a variance between the declaration and bond; nor is such bond in any case, considered a part of the record, unless it be spread upon it, either hy oyer, by a demurrer to evidence, bill of exceptions, case agreed, or special “ verdict.
    Action of Debt on Bond  — Failure to Lay Damages— Effect. — No damages were laid In the declaration in an action of debt on a bond with a collateral condition; but the judgment was nevertheless sustained.
    These were two actions of debt brought in the General Court, on behalf of the Commonwealth, in the name of John Page, Governor of the State of Virginia, successor of James Monroe, formerly Governor of the said State, upon a sheriff’s bond. The first was against the securities of William Little, late sheriff of Jefferson County, for the revenue tax of 1801, payable the 1st of October, 1802; the second was against his administrators, for the revenue tax of 1802, payable the 1st of October, 1803.
    
    *The declaration in the first mentioned case, is against Craghill and. others, sureties of William Little, deceased, and charges that the defendants, together with the said Little, on the 10th of November, one thousand eight hundred and one, by their certain writing obligatory sealed, &c. acknowledged themselves to be held and firmly bound to James Monroe, and his successors, governors, &c. in the sum of $30,000, &c. In the second case, the declaration , is against the administrators of William Little, deceased, and charges, that their intestate, together with several others therein named, on the tenth of November, one thousand eight hundred and two, made a like acknowledgment, under a like penalty. Both declarations-then proceed to state, that there was a condition to the said writing obligatory to the following effect: “That if the said William Little shall well and truly collect, account for, and pay all taxes imposed by law, in the aforesaid County of Jefferson, in such manner as is by law directed, and shall duly account for and pay the same to the treasurer of this Commonwealth, for the time being, for the use of the Commonwealth, and shall, in all other things, truly and faithfully execute the said office of sheriff during his continuance therein, then the above obligation to be void, else to remain in full force and virtue.” The breach in both cases was assigned in the very words-of the condition; except that in the suit against Craghill and others, these words were added: “and particularly, that the said William Little did not well and truly collect, account for, and pay the revenue tax imposed by law in the said County of Jefferson, for the year 1801, in such manner as is by law directed, but altogether failed so to do;” and in ‘that against Little’s administrators, the following words were added, “particularly that he the said William Little, deceased, did not collect, account for and pay, as he was bound by law to do, the revenue tax in the said County for the year 1802, but altogether failed so to do.”
    *In the case of Little’s administrators, no damages were laid in the declaration.
    At rules held in the clerk’s office on the 15th of August, 1805, the declaration was filed, and a common order entered against the defendants: at the succeeding rules held on the 15th of September, the common order was confirmed, and a writ of inquiry awarded; and at the next term of the General Court, on the 18th of November, 1805, the writ of inquiry was executed. The same proceedings were had in both cases. The Jury sworn to inquire of damages, in the case of Craghill and others, assessed them to 591 dols. 17 ots. and, in the case of Ifittle’s administrators, to 1,898 dols. 18 cents.
    To each of those judgments a writ of supersedeas and certiorari was awarded by the Judge of this Court.
    The record, brought up by certiorari, contained the declaration and subsequent proceedings, with an account annexed in each case, signed by the auditor, and stating the balance due to the Commonwealth; but neither the writ nor bond appeared in the record; though to a transcript of the record, not sent up by certiorari, there was a copy of the bond annexed, which shewed that the judgment, in both cases, wa.s rendered on a bond bearing date the 10th of November, 1801.
    Wickham, for the plaintiffs in error, contended,
    1. That the breach laid in the declaration was not well assigned, inasmuch as it did not state the amount of the revenue tax for which the sheriff was in arrear. That there is a class of cases which say, that the assignment of a breach in the words of the condition is sufficient, I shall not deny; but these are cases in which the party is to do some particular act, which is specified with sufficient certainty in the declaration.
    This is not like the case of a general agency, where it may often be difficult to state with precision the sums collected by the agent, and not accounted for. The amount *of the revenue tax was known to the officers of government. The Auditor knew to a single cent the sum in which the sheriff was in arrear, and filed his account accordingly. If no account had been exhibited to the General Court, a judgment could not have been recovered. If it was necessary to exhibit an account stating the sum due from the sheriff, it is equally necessary to state it in the declaration. [To prove the necessity of assigning breaches specially, Mr. Wickham referred to the cases of Cornwallis v. Savory,  and Jones v. Williams, ]
    The condition of an executor’s bond is as .general as that of a sheriff; j'et surely it will not be contended that a general assignment in the words of the condition would be .sufficient. It would be necessary to state whether the breach was for the non-payment of debts or legacies, or the not returning an inventory, &c.
    [JUDGE TUCKER wished to be satisfied how advantage could be taken of the generality of the assignment of a breach, when there was neither an appearance, nor ■demurrer. ]
    Wickham. This is a substantial defect. I have always understood it to be a general rule of law, that defects which go to the merits, may be taken advantage of at any time. Matters of form are cured by the act of jeofails, but not matters of substance.
    In these cases, the breaches were assigned for failing to account, and failing to pay. According to a well-known rule of practice, it is presumable that damages were given for failing to pay; and the declaration should have stated how much the sheriff was bound to pay, for the information of his sureties and representatives. This was the very gist of the action; and the damages being given, as well for the breach well assigned, in failing to account, as for that badly assigned, in failing to pay, the judgment cannot be sustained.
    *2. The writ of inquiry was prematurely executed. This point is clear, not only from the words of the act of Assembly, but from the regular entry in all such cases when the record is fully drawn up. On the confirmation of the office judgment at the rules in September, 1805, the entry is, that the plaintiff should recover judgment for the debt in the declaration mentioned “to be discharged by the payment of such damages as the plaintiff hath sustained by occasion of the defendant’s breach of the condition of the writing obligatory in the declaration mentioned, assigned by the Attorney-General for the Commonwealth, and the costs; which damages were to be inquired of by a jury at the next Court, in case the defendants then failed to appear and plead to issue.” According to this entry, which is in strict conformity with the law, the defendants had the whole of the next Court to appear and plead to issue.
    But the act of Assembly is equally explicit. The rules and proceedings in the General Courts, in all cases not otherwise specially directed, are to be the same as in the District Courts in similar cases,  By the District Court law, Rev. Code, vol. 1, c. 66, s. 42, p. 80, it is declared, that all judgments by default obtained in the office, and not set aside on some day of the next succeeding District Court, shall be entered by the clerk, as of the last day of the term ; which shall be final in actions of debt founded on any specialty, bill or note in writing ascertaining the demand, unless the plaintiff shall choose in any such case to have a writ of inquiry of damages; and, in all other cases, the damages shall be ascertained by a Jury, to be impanelled and sworn to inquire thereof, as therein after directed. The next section (43, p. 81,) shews how a writ of inquiry is to be executed. Before every court, the clerk is to enter in a particular docket, all such causes (and those only) in which an issue is to be tried, or an inquiry of damages to be made, &c. The writ of inquiry is to be docketed before the Court at which it is to be executed; but, as it is to *be entered as of the last day of the term next succeeding the judgment by default obtained in the office, those only can be docketed for trial, which were entered on the last day of the preceding term. How is it possible to execute a writ of inquiry at the same term, when it is considered as awarded on the last day? Suppose the defendants had come, on the last moment of the last day of the term, and offered to set aside the writ of inquiry and plead to issue: surely they would have a right to do so. How could it then, with propriety, be executed before, when the party had. till that moment to set it aside?
    There is an important difference between the old General Court law, and the present District Court law. In the former, judgments by default were to be signed by the clerk in his office, as of the' preceding Court, and writs of inquiry might be tried at the succeeding term, on giving notice to the defendant,  But in the latter, they are to be entered as of the last day of the succeeding term, if not set aside during the term. Again, by the old General Court Daw, the defendant was only allowed till the eighth day of the term to set aside an office judgment ; but, under the present District Court Daw, he has the whole term. In a subsequent law regulating the practice of the General court,  all judgments by default, obtained in the office, and not set aside on the eighth day of the succeeding term, were to be entered as of that day. So that,- after the eighth day, there could be no ground of complaint, if the writ of inquiry were executed.
    Another argument which may be urged, is, that it is the uniform practice of the District Courts never to try writs of inquiry at the next term succeeding the confirmation of the office judgment at the rules.
    In some County Courts, indeed, a different practice may prevail. But this can only relate to issues which are made up during the term, by setting aside the office judgment. The County Court Daw (in which respect it differs from that concerning the District Courts) directs that all office "judgments so set aside shall be immediately put at the end of the issue docket,  This, in the opinion of the County Courts, may confer the power to try them the same term. Whether this practice be correct or not, it is unnecessary to inquire in the present case; as it is clear that the General Court and District Courts have no such power. The case of Mandeville v. Mandeville,  being that of an issue in the County Court, has no bearing upon the present question.
    These objections are common to both cases, but there are others peculiar to each.
    3. In -the case of Dittle’s administrators, there is a variance between the bonds declared on, and that given in the evidence. The declaration charges a bond dated the 10th of November, 1802, when in truth it bears date on the 10th of November, 1801. Although in the record sent up by certiorari, there is neither writ nor bond, yet I contend, that, where there is a judgment by default, they are both necessarily a part of the record.
    Observe the consequence of not considering the writ a part of the record. A man owes a debt of ten thousand pounds; he is sued upon it, and makes no defence because he knows it is justly due. But the plaintiff declares against him for one hundred thousand pounds, or files a declaration in trespass, assault and battery. If the writ be no part of the record, the defendant may be condemned in a sum, or in an action, without the possibility of redress.
    The bond is an essential part of the record, because the clerk is to enter up judgment for principal, interest, and costs. How can he do this without a reference to-the bond?
    4. An objection which applies peculiarly to the assignment of breaches in the case-of Craghill and others, is, that it is said they (the securities) broke the condition, in this, that Dittle (himself) did not well and truly collect, account for and pay all the taxes imposed by law in the County of Jefferson.
    "The Attorney-General, for the Commonwealth, said, that he did not understand Mr. Wickham as controverting the general doctrine, that an assignment of the breach in the words of the condition was sufficient, but only as attempting to-shew that the case of a sheriff was an exception. No difference could be perceived between this and the class of cases to-which Mr. Wickham alluded. The following' are relied on: Hancock v. Field and others,  Salman v. Bradshaw,  Proctor' v. Burnet, and Hughes v. Richman; all decided in the Courts of England.  But after the decision of this Court im the case of Branch v. Randolph, Governor, &c.  upon an elaborate argument, and a. full review of all the British authorities, there can be no doubt on this point. The law must be considered as forever settled.. If this be not a binding authority, there can be no end to litigation. In that case, this, very exception was taken, and was made a point in the petition for a supersedeas ^ but, after the case had been solemnly argued, the objection was overruled, and the-judgment sustained. 
    
    *In point of reason there can be no-necessity for stating, in the declaration, the amount of the taxes for which the sheriff is in arrear. Every sheriff has access to the commissioners’ books in his county, and to the Auditor’s office; and must be presumed to know the amount of the Commonwealth’s claim against him. In Winston v. The Commonwealth,  the Court recognizes the distinction between public and private claims, and the facility with which public debtors may know the amount due from them to the Commonwealth.
    Another objection to the assignment of the breach, is that it is double; for failing to account, and failing to pay. But this only conforms to the law, which says, the sheriff shall account and pay. It was incumbent on the Commonwealth to shew that he had not accounted and paid. He could not pay without accounting; because it was one entire act. No inconvenience could result from this practice; the Auditor must produce his books, which are made evidence against the sheriffs, and which always shew in what sum a sheriff has failed to account and pay; and, in the spirit of the statute of Jeofails, the Court will presume that every thing was proven which was necessary to found the judgment.
    The next point is, that the writ of inquiry was prematurely executed. The law has been correctly stated that the practice of the General Court shall conform to that of the District Court; but the fair construction of all the laws is, that writs of inquiry may be executed at the next term after they are awarded in the clerk’s office. The office judgment becomes final at the next term, unless the *defendant relieves himself by pleading to issue. Where the plaintiff chooses to have a jury sworn to inquire of damages, the law expressly authorizes him to do so; and there is nothing in the law to prevent him from doing it the same day. In this case a writ of inquiry was necessarily awarded, because the writ was on a bond with collateral condition.
    But the case of Mandeville v. Mande-ville is conclusive authority, in this case. It is said, however, that that case was decided under the County Court law, which directs that all office judgments set aside during the term shall be immediately put at the end of the issue docket,  But the law does not say they shall be tried; nor is there any clause in the District Court law, which forbids the trial of a writ of inquiry at the same term. The County Court law provides that the proceedings of the County Courts, on the law side, shall conform to the practice of the District Courts. This Court has already decided that the trial of a new issue, at the same term, in the County Court, is correct; and the Legislature has said that the practice of the two Courts shall conform.
    As to the variance between the declaration and bond, in the case of Little’s administrators, it is now too late to object. Advantage might have been taken of it at the trial, by objecting to the bond’s going in evidence to the Jury. But no oyer having been taken, neither the writ nor bond is any part of the record, 
    
    It is said by Mr. Wickham,- that the writ is necessarily a part of the record, in all cases where there is a judgment by default. The reason of this distinction between judgments by default, and where there is an appearance, cannot easily be perceived. On executing the writ of inquiry the plaintiff must prove his demand; and this Court will presume that the Court below did right.
    But, even if it were necessary to consider the bond a part of the record, where the judgment becomes final after an office judgment, and the clerk issues the execution without the intervention of a Jury, as in cases of debt for the payment *of money simply, the same reason would not apply to bonds with a collateral condition ; because there must always be a trial before a Court and Jury, and the bond must be given in evidence to prove the demand.
    Wickham said, that he considered the second point made by him, that of prematurely executing the writ of inquiry, so conclusive, that it would be an unnecessary consumption of the time of the Court, to reply to the various arguments of the Attorney-General on the other points. He would, therefore submit the causes.
    
      
      Judgments. — See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Bonds — Collateral , Condition — Assignment of Breaches —In an action on a hond with a collateral condition, if the breach be assigned in as general terms as those of the condition, it is sufficient. Winslow v. Com., 2 Hen. & M. 464, 466, citing Johnston v. Meriwether, 3 Call 523; Branch v. Com., 2 Call 510: Branch v. Randolph, 5 Call 546; Cragkill v. Page, 2 Hen. & M. 446. The principal case is also cited on this question, in foot-note to Branch v. Randolph, 5 Call 546; Allison v. Bank, 6 Pand. 215.
      And in Burnett v. Wylie, 4 Fed. Cas. 165, it is said, in debt on bonds, with a condition for doing any thing else, except the payment of a gross sum of money, or the appearance of the defendant in a bail bond, the plaintiff is bound to suggest breaches, either in the declaration, replication, or on the roll or record. Citing Craghill v. Page, 2 Hen. & M. 446.
      See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
      Same — Action of Debt. — See monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
    
      
       So much of the above statement as is marked in italics appears from the exhibits filed by the Auditor in the respective suits. The facts (though they could not judicially appear to the Court, no oyer having been taken of the bonds) were these: Little qualified as sheriff of Jefferson County on the 10th of November, 1801, and gave a bond, dated on that day, for the collection of the revenue “In such manner as is by law directed,” (not mentioning the revenue of any year in particular,) which was tbe only bond, for that purpose, he ever g-ave. He continued in the office of sheriff, and collected the revenue a second year. It being doubtful, (as he had given one bond only,) whether his securities were liable, except for the taxes of one year; suit was brought against them for the balance of the taxes payable the 1st of October, 1802, being those which accrued during the first year of his sheriff-alty; and, for those collected the second year, and payable the 1st of October, 1803, for which he had not renewed his hond, suit was brought against his administrators, (he being dead,) upon the same hond of the 10th of November, 1801, the terms of the condition of which were as above stated. — Note in Original Edition.
    
    
      
       3 Burr. 773.
    
    
      
       Doug. 214.
    
    
      
       Rev. Code, vol. 1, c. 65, s. 15, p. 71.
    
    
      
       L. V. edit. 1769, p. 398, sect. 24.
    
    
      
       lb. p. 296, s. 18.
    
    
      
       lb. edit. 1785, p. 72, s. 268.
    
    
      
       See Rev. Code, vol. 1, c. 67, s. 29, p. 88.
    
    
      
       3 Call, 225.
    
    
      
       Oro. Jac. 170,171.
    
    
      
      er) lb. 304.
    
    
      
       3 Mod. 69.
    
    
      
       Cowp. 125.
    
    
      
      1) To these may be added, the cases of Strum and others v. Farrington, 1 Bos. & Pull. 640, and Barton v. Webb, 8 Term Rep. 459. See also a very valuable note of Serjeant Williams, in his edition of Saunders, subjoined to the case of Lord Arlington v. Merricke, vol. 2, p. 411, note (4); in which it is said that these latter cases have overruled that of Jones v. Williams, Doug. 214. — Note in Original. Edition.
    
    
      
       Oct. 17,1805, MS.
    
    
      
       The case of Branch v. Randolph, Governor, &c.. was a supersedeas to a judgment of the General'. Court upon a sheriff’s bond, the condition of which was in the following words: "The condition of the above obligation is such, that if the above bound Benjamin Branch do and shall truly and faithfully collect, pay and account for all taxes imposed in. this said county by virtue of an act of Assembly entitled ‘an act to amend and reduce the several acts of Assembly for ascertaining certain taxes: and duties, and for establishing a permanent, revenue into one act,”’ then, &c.
      In an action brought on this bond against the-administrator with the will annexed of Benjamin-Branch. the breach was assigned in the very words, of the condition, that their intestate “did not truly and faithfully collect, pay and account for,” &c.
      Judgment having been rendered in favour of the Commonwealth, a supersedeas was awarded by a. Judge of the Supreme Court of Appeals.
      The principal error assigned in the petition for a supersedeas, was, that the declaration was substantially defective, in assigning the breaches so generally, that it could not be ascertained for what, year the taxes were payable. The judgment of the General Court was nevertheless affirmed. See-Order Book, No. 5, p. 202. October 17, 1805, MS.— Note in Original Edition.
    
    
      
       2 Call, 290.
    
    
      
       3 Call, 225.
    
    
      
       Rev. Code, vol. 1, c. 67, s. 29. p. 88.
    
    
      
       Ib. c. 67. s. 69, p. 92.
    
    
      
       5 Bac. Abr. Gwil. ed. 436, 437, 438: Tit. “Pleas & Pleading's,” Let. (I) Div. 12 Sub-div. 2, 3: Tuck. Black. 299; Bull. N. P. 253 ; 5 Comyn’s Digest, by Rose, 466, 468; Tit. “Pleader,” p. 1, p. 2, ib. 2; V. 4.
    
   Wednesday,, May 18. The Judges delivered their opinions.

JUDGE TUCKER.

The errors assigned

are, 1. That the breach is too general. The breach assigned in the case of Merriwether v. Johnson, was equally so, 3 Call, 524. And in Branch v. Randolph, Governor, &c. October term, 1805, (MS.) the breach is nearly in the same words as in the present declaration. Yet both those cases were affirmed,

2. Another error assigned is, that there is a variance between the declaration and the bond, but this does not appear. Oyer of the bond was not prayed; the variance might have been pleaded, or objected to on the trial. After a verdict, it would be too late to take advantage of it; for though a bond is necessarily a part of the record, in many cases where the condition is for the payment of money, because the judgment must be entered up according to the condition; yet, it does not appear to be equally necessary that bonds with collateral condition, should be so considered. If any advantage can be derived to the defendant from its tenor, he must spread it upon the record, either by oyer or by a demurrer to evidence, or by a bill of exceptions ; or lastly by a special verdict.

3. Another point not noticed in the argument occurred to me in reading it; no damages are laid in the declaration *against Little’s administrators. It is not necessary to lay damages in the declaration in an action of debt, In the case of Hook v. Turnbull, May, 1806, I gave it as my opinion that the writ is to be considered as a part of the record, for the purposes of amendment. From my note of that case there was no difference of opinion upon that point; the declaration may then be amended by the writ, and that omission cured.

' In addition to the errors above mentioned, it was said that in the case of Craghill and others the declaration was erroneous, in that it charged the defendants, who were only securities, with a breach of a condition of their bond, for that Little, (the principal, in the bond,) had not accounted for, and paid the taxes. How.this might have been upon a special demurrer, where the want of a due observance of grammatical or technical precision might have been assigned as error, I need not say. But, at present, I conceive the objection unimportant.

There is, however, one error, common to both these cases, which I consider as important. From the most attentive examination of the act of Assembly, I am fully satisfied that a writ of inquiry ought not to be executed in the General Court, or District Courts, at the term next succeeding the rule da3r on which the office judgment is confirmed. Because the defendant has the whole of the next succeeding term to set aside that office judgment, and plead to issue, if he chooses so to do. Upon this ground, I think the judgment erroneous, and, therefore, that it must be reversed, the finding of the Jury upon' the writ of inquiry set aside, and the cause remanded to the General Court to be there proceeded in, as if the writ of inquiry had never been executed, and.the cause had still remained on the docket in that Court.

JUDGE ROANE.

The case of Branch v. The Commonwealth, (MS. October, 1805,) which was much argued upon *the very point, seems conclusive that the breach in this case is well assigned. But the General Court, I think, erred in executing the writ of inquiry at the term in which it was done: the party should have had the whole term to set aside that judgment and plead to issue. This seems so.plain upon the several acts relating to the subject, that I shall content myself with referring to the exposition thereof made by the appellants’ counsel.

■ As to a variance, in the case of securities, in relation to the date of the bond, I can see none. In the case of the securities, the recovery is upon a bond executed in November, 1801, for the taxes of 1801; and in that of the administrators, it is upon a bond of November, 1802, for the taxes of that year. This variance cannot be made out, unless you take for granted,, that the bond referred to in the case of the administrators, is the bond upon which the other judgment was also rendered: but I will rather take it that there were two bonds for the two years, and that one of these judgments is founded on one, and the other on the other. There is nothing in the record which forbids this presumption, and the objection would not perhaps have occurred, had not the two cases been brought on and submitted together.

On the ground of prematurely executing the writ of inquiry, I am of opinion that the judgment be reversed.

JUDGE FEEMING

said, it was the unanimous opinion of the Court (absent JUDGE LYONS) that the judgments in both cases should be reversed, on the ground of prematurely executing the writs of inquiry. 
      
       See Branch v. the Commonwealth, 2 Call, 510.
     
      
       Per Lyons, J., 2 walk. 212, Stevens v. White.
     
      
       Ed. 1794, c. 66, sect. 28, and 42, Rev. Code, 1 vol. p. 78, and 80.
     