
    *Eppes v. Demoville.
    [October Term, 1799.]
    Debt-Bond for Quiet Enjoyment — Heir.—The heir may maintain an action of debt on a bond to his ancestor conditioned for quiet enjoyment of lands, where the breach has happened since the death of the ancestor.
    
      Royal as executor of Peter Eppes deceased brought suit against Demoville as administrator of Temple Eppes deceased, upon a bond given by the said Temple Eppes to the said Peter Eppes deceased, conditioned for the quiet holding and enjoying a plantation devised to the said Peter Eppes deceased, by his father Eewellen Eppes. The defendant plead payment by his decedent; and fully administered, except as to .£86. IS. 10%. The plaintiff took issue; and at a subsequent court by consent of the parties, the declaration was withdrawn ; and a declaration upon the same bond was filed in the name of Peter Eppes son and heir at law and devisee of Peter Eppes deceased : Which assigned for breach of the condition, a recovery and eviction, by Demoville and his wife, who was grand daughter and heir of the said Temple Eppes deceased. Whereupon without any other pleadings a jury were charged, who found a verdict for the plaintiff, which was set aside on the defendant’s motion and a new trial awarded. At a future term another jury were charged, without any further pleadings, who returned a verdict for the plaintiff “for the debt in the declaration mentioned to be discharged by the payment of six hundred and seventy nine pounds and one penny damages the value of the assets in the hands of the defendant.” The defendant moved to arrest the judgment, and for cause assigned, that the action of the plaintiff “is founded on a bond given to his ancestor, whereas by law no such action is maintainable by the heir on a penalty. The penalty of the bond being a sum in gross which after the death of the original obligee could only be sued for by his personal representative.” The District Court gave judgment for the defendant; *from which judgment the plaintiff appealed to this court.
    Marshall for the appellant.
    It is clear that an action of covenant would have lain for the heir on account of the eviction, which happened, in his own time and not in that of his ancestor. But there is no real difference between an action of debt and an action of covenant in a case like this. Eor whatever form the instrument may wear, it is still a covenant; and an action of debt founded on it, is substantially an action of covenant: because by the act of Assembly the plaintiff cannot, by bringing an action of debt, have his penalty: he can only have the damages assessed by the jury; which puts him in that respect in the same situation, as if he had brought an action of covenant: But to put him completely so, instead of being confined to one breach only, as formerly, he is at liberty to assign as many as he thinks proper, and he is to have a scire facias for new causes of action as they arise. In all which respects it exactly resembles covenant. So that, in fact, it is substantially an action to recover, not a stipulated certain sum, but uncertain damages for the violation of the contract, in proportion to the loss sustained: Which is the essence of an action of covenant. It is therefore an action of debt in name, but of covenant in effect. It is an action, which in form, affects to assert the penalty, but which in substance can only enforce damages commensurate to the injury. The difference therefore between the two actions, in cases of this kind, is imaginary, and not real.
    The bond, in this case, was a covenant which ran with the land, for the benefit of the heir; and there is nothing personal in it: But the owner of the land is entitled to all advantages arising from it. The damages are in lieu of the land; which belonged to the heir, and were never personal assets: but the condition being broken in the time of the heir, and not in the life time of his *father, the heir was the only person entitled to redress, and the executor had no cause of action. Eor the covenant being knit to the estate, according to the expression of legal writers, descended on the heir; and he alone could take advantage of it. 3 Bac. ab. 20; 2 Eev. 92; 1 Ventr. 175.
    The analogy between the case of a Nomine Poenas put in Bacon (ub. sup.) and the case at bar is particularly strong. Eor that is a penalty as well as this; that is a sum certain, and so is this; that is a security for payment of a descendible rent, this of a descendible title; that goes to the heir as incident to the inheritance, and this upon the same principle must go to the heir also, as being equally annexed to the inheritance. But it would be idle to say, that he should have the right and not the remedy to assert it.
    Upon principle therefore nothing is more clear, than that the action is sustainable; and if there be no precedent of an action of debt brought by an heir in such a case, it is believed that no decision to the contrary can be produced. In which case the principle surely ought to prevail.
    Wickham contra.
    The heir cannot bring debt on a bond to the ancestor, although the condition may respect lands. Eor it is a chose in action, and vests in the executor, as the obligation is for a sum in gross, and the condition is for the benefit of the obligor. It is therefore debitum in praesenti. Eitt. Sect. 512; and a release of a personal action would discharge it, Co. Eitt. 292 (b). The mere right to the damages, if it be admitted that they belong to the heir, will not alter the rule, and give him an action of debt upon the bond. Eor- there can be no doubt that the executor is entitled to the money due on a mortgage, and yet he cannot bring ejectment for the lands; but the heir must do it: Which clearly proves that the legal distinctions are preserved.
    *If a bond be given to A, with condition to enfeoff B, and the condition is broken, B, cannot sue upon the bond although the condition is for his benefit. So if there be a bond to A, for payment of a sum of money to B, the latter cannot sue upon the bond at law, but would be driven into a Court of Equity; and yet he may release the debt. Bro. Olig. pi. 72. It was upon this idea, that the case of Peter v. Cocke, 1 Wash. 257 proceeded. The argument, that it was a covenant running with the land proves nothing. Eor if that circumstance enabled the heir to sue upon the bond, then an as-signee of the bond might likewise. But that the latter could not maintain an action on it hefore the act of 1795, was settled by the case of Craig v. Craig, in this court at the last term. The doctrine, contended for, would create confusion and embarrassment. L'or suppose one breach in the lifetime of the ancestor, and another in the time of the heir; if the latter can sue, the former will lose his action: Because the judgment is to stand as a security, for future breaches; and the executor could not sue a scire facias upon a judgment in favour of the heir. Besides, it is an argument of some weight, that no action of debt was ever brought by an heir on a bond to his ancestor. Perhaps it may be questionable, whether an action of covenant would lie, for an heir, upon a bond to his ancestor? and probably, the only case, where the heir could maintain such an action, is where the breach arises out of a covenant contained in the conveyance for the land. However, be that is it may, this is not covenant but debt; and the latter cannot be maintained by the heir. For the form of actions is not to be departed from. This was settled in Byrd v. Cocke, 1 Wash. 732; and the act of Assembly does not confound actions of covenant and debt together. The cases from 3 Bac. *and 2 Bev. prove indeed, that the heir may have the benefit of covenants real, which run with the land; but they decide nothing in the present case. The case of a nomine pcenae is anomalous; but at any rate it will not disprove the doctrine which we contend for: Especially, as the book does not distinguish whether the heir may bring debt or covenant.
    The declaration does not state that the eviction was by one entering as heir to Temple Eppes; and therefore is not certain enough.
    There is no issue in the cause. For the first declaration was withdrawn, and no new plea entered to the second. Which consequently was never plead to at all; and therefore, the parties never were at issue on it. For the pleas to the first declaration do not apply to it.
    Randolph, in reply.
    The equity of the case is clearly on our side, and therefore the law must be very pointed, to make us lose the benefit of our judgment, on a mere technical exception. There is no ground for the objection, that the eviction is not sufficiently stated in the declaration, as the averment is exactly, what, Mr. Wickham says, it ought to be. For the declaration states the whole matter specially, and that the heir of Temple Eppes sued the plaintiff, and turned him out of possession.
    Although debt cannot be brought by the heir on money bonds payable to the ancestor, it is otherwise, as to bonds which concern lands; and in this case the heir is named expressly, for the bond is payable to the ancestor, his heirs, .&c. ; which was proper, as it was for his benefit; and he is now the only person to whom compensation for the loss is due. If there be a bond for payment of rent, and there is a breach in the testator’s lifetime, the executor shall bring the suit; because the rent, incurred in the ancestors lifetime, was part of his personal estate. But where *the breach does not happen until after the ancestor’s death the heir shall have the action ; because the rent was issuing out of, and concerned the lands. Although the condition is, generally speaking, for the benefit of the obligor, and the penalty, for the benefit of the obligee, as has been said, yet that will not make any difference, in this case; because, in all cases of this kind, the connection, between the penalty and the condition, is so great, that it is impossible to separate them. So that the condition is as much for the benefit of the obligee as the penalty is; and substantially the obligor only covenants for the terms in the condition. It was said, that the penally goes to the executors, and not to the heir; but no case to that effect is produced. It was also said that the forms of actions were not to be departed from, and that Byrd v. Cocke had in effect decided, that the difference, contended for, between debt and covenant ought to be observed. But the cases are not alike; for debt and case do not substantially unite together, in the same manner as covenant and debt upon bonds of this kind. The case of ejectment upon a mortgage does not apply; because the estate is absolute on non-payment of the money, and it is the Court of Equity and not the law which gives the money to the executor. For the law does not recognize the executor’s right at all. But here the bond is not for payment of money, nor was it intended to swell the personal estate at all, but it was merely given for the benefit of the heir. Who may always sue where he is the person actually interested. The reason why, the cestui que use cannot sue upon the bond to the trustee, is for want of privity. It is not true, that an assignee of the land would not be entitled to sue on this bond; for if he and the executor were contending about the bond, the assignee would be preferred; but, if he has a right to the bond he would also have a right to the action, to enforce the contents of it. It is exactly like the *case of a covenant for quiet enjoyment; in which case either the heir or assignee may sue. The case of the nomine pcense for rent is exactly like this in principle. For that is a penalty, and so is this: Therefore the same rule will apply to both cases.
    It is not correct to say, that there was no issue in the cause. For as the first pleas were not withdrawn they stood as pleas to the new declaration. But at any rate that objection would not go to destroy the action altogether; it could at most only produce a repleader.
    Cur. adv. vult.
    
      
      Plea — Declaration Amended— Effect. — Where there is a plea to one declaration, and then the plaintiff files an amended declaration, to which the plea pleaded to the first is applicable, and that plea never withdrawn, it willstand as apleato the new declaration. Roderick v. Railroad Co., 7 W. Va. 56; Power v. Ivie, 7 Leigh 151, both citing-, with approval, the principal case.
      See the principal case cited in Terrell v. Page, 3 H. & M. 122.
    
    
      
      1 Call's rep. 483.
    
   ROANE, Judge.

This is an action of debt on a penalty conditioned for the performance of covenants, that is to say, a covenant for quiet enjoyment of a tract of land; it is brought by the heir of the original obligee; and the grounds, on which he sets up his right, are 1. That the bond is payable to Peter Eppes, his heirs, executors and administrators. 2. That the eviction is alleged to have been since the descent of the land to the heir.

It is certainly' a general principle, that an executor is the proper party to recover debts due to the testator; and I have not been able to find a single instance of an action of debt being brought by the heir.

It is admitted that an heir may bring an action of covenant, upon a covenant running with the land, for a breach in his own time; and the executor may also bring the same action for a breach committed in the lifetime of the testator; And it is alleged by the counsel for the appellant that under our act of Assembly this action is substantially an action of covenant.

If this position were true, it would perhaps materially vary the opinion I have formed upon the subject.

^'Covenants, the performance whereof is secured by a penalty, are susceptible of a two fold remedy 1. An action of debt for the penalty, after the recovery of which the plaintiff cannot resort to the covenant; because the penalty is a satisfaction for the whole. 2. An action of covenant, in which the plaintiff, waiving the penalty, proceeds on the covenants, and may recover more or less than the penalty toties quoties, Lowe v. Peers, 4 Burr. 2225. The party therefore has his election; and, in the present case, the plaintiff has elected to bring an action of debt for the penalty.

A judgment in this action of debt will be in favor of the plaintiff for the whole penalty, altho’ he cannot (without a scire facias assigning new breaches) sue out execution for more, of that penalty, than is recovered, as a compensation for the breaches rightly assigned. One action is all that can be brought upon the penalty, proceeding by way of action of debt; but proceeding by action of covenant, and waiving the penalty, ever so many actions may be brought, and separate judgments will be given, in each, for the damages respectively sustained. I am therefore warranted in saying, that the position, that this action is substantially an action of covenant, is incorrect.

This opinion is further confirmed by considering the end and object of making our act relative to the assignment of breaches.

At common law, before that act, in such an action as the present the plaintiff could only assign a single breach; but, for that breach, he could recover judgment and sue execution, for the whole penalty; which often exceeded the real damage; and therefore the defendant was driven into equity for relief. It was to prevent that resort to a Court of Equity, and attain the same purpose in a court of common law, that the act of Assembly was made. But it never was intended, nor does *it operate, to convert the action of debt into an action of covenant.

If then this be not, even in substance, an action of covenant, but entirely an action of debt, it is not enough to support it, for the plaintiff to shew, that the heir may take the benefit of a covenant, as appertaining to his inheritance, but he must proceed in that action which the law gives him: And the cases cited on this part of the subject all have reference clearly to an action of covenant.

If this action is sustainable, it vests a right in the present plaintiff to the whole penalty (subject to his future assignment of breaches;) after which no resort can be had to the covenant itself. The consequence of which is that the executor is excluded from his for a breach committed in the testator’s lifetime; whereas, by confining the heir to sue his action of covenant, the executor may also sue his action of covenant, and each of them respectively recover the damages to which they are entitled.

If it be said, on the other hand, that this action of debt upon the penalty, if sued by the executor, would, on his obtaining a judgment, equally exclude the heir from injuries done in his time, I answer that the executor is the proper representative of the testator as to bringing actions of debt; that he can have no judgment without a breach; that, if he gets a judgment at all, it must be for the whole penalty; and that this is a consequence growing out of the nature of the security the testator has taken. Nevertheless, it may be that the executor would, in that case, be a trustee in Equity, for the damages sustained by the heir. But the only question now before us, is whether the heir has a legal right to sue an action of debt upon this penalty?

I beg it may be understood however, that I have formed no opinion (as being unnecessary in the case before us,) whether the present covenant is, *or is not, such an one as the heir may sue upon, by action of covenant for an eviction in his time.

There is no ground, whatever, for the position, that the heir has a right to sue in consequence of the word heirs being inserted in the Teneri of the bond, nor has a single authority been cited to support it.

I am therefore of opinion that the judgment of the District Court ought to be affirmed.

ELEMING, Judge.

The single question is whether the heir could bring an action of debt upon this bond? Every decedent leaves two representatives; the executor, who represents his personal rights; and the heir, who represents his real rights. It is the duty of the executor to collect together the personal estate; of which he is a trustee for payment of debts and legacies; and therefore is entitled to sue all actions which relate to the personalty; because he alone is entitled to the possession of the personal assets, for the purposes just mentioned. But the heir is entitled to the realty; and therefore every action, respecting that property, belongs to him. Now the bond in question, related to the lands altogether, and therefore constituted no part of the personal estate of the testator; as no breach had happened, or forfeiture incurred during his lifetime, so as to entitle the executor t'o a recompence for the damages which the testator had sustained: Consequently, the property in the bond belonged to the heir, as appertaining to the inheritance, which it was intended to secure. Eor conditions and covenants real, or such as are annexed to estates, descend to the heir, and he alone can take advantage of them. 3 Bac. ab. 20, cites 1 And. 55. If the bond had been conditioned for building a house upon the land, and the forfeiture had happened after the death of the testator, it would surely be more consistent with reason and justice that the heir, who was to be benefited by «the building, should have the remedy whatever it was, in his own power, than that it should belong to the executor; who, having no interest in the matter, would not be concerned, whether the house was built or not. The case of the nomine poenas mentioned in Co. Ditt. 162, is expressly applicable; and shews that the interest, in conditions and covenants of this kind, vests in the heir. All the foregoing principles more strongly apply in a case like the present, where the land has been lost altogether; and the money recovered is to be in lieu of it. In such a case it would be strange if the law were to establish the useless circuity, of a suit first by the executor against the obligor, and then of a suit by the heir against the executor. It is certainly better to say, at once, that he -who has the right, has the remedy to assert it. There is a passage in Went-w'orth’s office of executors which may be thought to militate against this doctrine. But the author appears to me to have had no fixed opinion concerning it. For in one place he says, the money when recovered by the executor is assets, and in another that he is trustee for the heir. Both of which cannot be true. But they serve to shew however, the oscillation of his own mind upon the subject; and therefore but little weight is attached to his observations with respect to the point. It is said that there is no case produced of such an action having ever been brought by an heir; but that argument will perhaps apply both ways; for neither has any authority been produced, of its having ever been decided, that the action must be brought by the executor: Which leaves it equally as uncertain, whether an action, by the executor, could be maintained; and that very uncertainty is of itself, a reason, with me, for not sending the plaintiff back to explore the difficulty. Upon the whole, I am for reversing the judgment of the District Court, and entering judgment for the plaintiff.

«CARRINGTON, Judge.

I concur with the Judge, who last delivered his opinion; which if not supported by strict law, is, at least, agreeable to the soundest principles of justice and good sense.

But the law is certainly with the opinion. In 2 Bac. 421, it is said, that rents in lieu of profits, charters and writings relating to lands go to the heir; and in the passage cited from 3 Bac. 20, conditions and covenants real, such as are annexed to real estates, go to the heir also. So that the title to the security seems to be clearly vested in the heir: And it is admitted that an action of covenant would have lain for him. But, I cannot discover any reasonable distinction between debt and covenant in such a case. For in both the object is to recover compensation for a specific in - jury done to the inheritance, or in other words to the heir; and why the recovery should in one action enure to the heir, and in the other to the executor, is very difficult to conceive.

The bond in the present case, upon the very face of it, imports that it could not form any part of the personal assets. For it respected the title to the inheritance only, to which it was an appendage. The heir therefore had a right to it as one of the muniments of his title; and, as the breach happened in his own time, he had a right to sue upon it; and might bring debt or covenant at his election. For if the covenant binds the obligor and his representatives to the heir, the contents of it must belong to the heir likewise; and the sum being certain an action of debt to recover it was properly brought.

Indeed the conduct of the defendant admits the propriety of the action. For, instead of excepting to the form of the action, he has plead over, and stated assets to a certain amount. On which plea an issue was taken; and on the trial a verdict passed for the plaintiff. After which it would be too much to allow an exception to the action, «without clear principles, or the most decisive authorities require it. But, as there are neither in the present case, I think the judgment of the District Court should be reversed; and that judgment should be entered for the plaintiff.

LYONS, Judge.

This is a suit at Common Daw, and must be decided according to the rules and principles of the Common Daw.

By the Common Daw all charters and writings relating to the freehold and inheritance, that is to say, deeds and covenants conveying lands, which can be transferred as I understand it, follow the interest of the land and belong to the heir to protect his title. But leases, mortgages, judgments and bonds for payment of money, belong to the executor and are assets.

Deases, made by the ancestor, reserving rent to the heir and executor, go to the heir; the rent being incident to the reversion : But mortgages, bonds payable to the ancestor and heir for money, or in a penal sum go to the executor; for the executor shall take advantage of covenants in gross. 1 Ventr. 175.

A bond for conveying of land or for further assurances, conveys no estate at Common Daw, nor can any estate be recovered by suit upon it. Such a bond will not enable the heir to recover or defend at law; it is not assignable at Common Daw, and cannot be transferred to a purchaser: It is therefore useless to the heir in that respect. Money and not land is to be recovered on it; and the whole penalty is forfeited by a single breach. It is true that either party may have recourse to a Court of Fquity; the obligee for a specific performance of the condition, and the obligor to be relieved against the penalty, on making compensation. But at law the action must be for the penalty only, and as that is money and a gross sum, the suit must be brought by the executor as legal representative of the personal estate.

*In Wentworth’s office of executors, it is said, “If A. be bound to B. by bond, statute or recognizance for assurance of land, B. dieth, and the land descend to the heir; or be it that B. sold the land to 0, and assigned to him the bond &c. yet must the suit &c. be in the name of the executor of B. and neither of the heir or assignee; and that which is recovered will be assets in law to charge the executor as I take it; yet in equity it pertains to the heir or assignee. Quere, If the executor meddle not, but only suffer his name to be used,” Wentworth off. Ex. 74. In another place, he has a passage to this effect, “Many have bonds, statutes, or recognizances for warranty or enjoying of land, or freeing &c. from incumbrances in general, or particular. Now he which hath these, selling the land, may by letter of attorney lawfully assign them to the party who buyeth land or lease: but this notwithstanding, the interest remains in him who selleth, and by his outlawry they may be forfeited, or by himself released, any bond to the contrary notwithstanding; and if he die, the interest in law will be in and go to his executors, and in their names only suit or execution may be had or maintained. But if the vendor besides assignment makes as to the obligation &c. only the vendee executor, by this the interest after the death of the party will be in him actually &c. since none but he can release or discharge, nor any other name need to be used to sue or take benefit thereof.” Ibid. 12.

These passages prove, that bonds for conveyances, and assurances do not, like covenants in conveyances, run with the land, and become the property of the heir; but belong to the executor, and if so, the naming of the heir is mere surplusage, and gives him no right of action.

This doctrine is attended with no inconvenience to the heir, whether the breach be before or after the ancestor’s death : If before; the executor *will recover damages for that breach, and a scire facias for future breaches may be brought in his name upon the judgment, until the whole penalty is exhausted; which like the Governor, Justices and other public officers he would not, perhaps, be allowed to release. If after; the heir must, indeed, make use of the executor’s name in bringing the suit, but the recovery will be for his own benefit. So that his interest is sufficiently protected.

It was said that the nomine peen» in a lease may be sued for, and recovered by the heir in his own name; which the appellee’s counsel insists is analogous to the present case. But that is not so.

Bor the nomine poenas like the rent, it is incident to the reversion, and descends to the heir at Common Law. It waits on the rent, and cannot be released until the rent is behind: Nonpayment makes it a duty. Yelv. 215; 4 Bac. 285.

The argument, that the act of Assembly by declaring that the penalty shall be discharged by payment of the damages found, does in effect destroy the distinction between debt and covenant, has no weight with me. Bor that act does not alter the nature of the action, but the same judgment for the penalty is still preserved by the act, and a collateral relief only given, in order to prevent the necessity of applying to a Court of Equity. So that the act, instead of confounding the distinction between them, does in express terms support it.

There must have been many bonds for convej'ances and assuring of title in England, yet there is no precedent of any suit or declaration, by an heir, upon such a bond; and if no such precedent can be shewn, then, according to Littleton’s rule, it is a good argument, that an action lies ■ not, because one was never brought'.

*1 am therefore of opinion that there is no error; and that the judgment ought to be affirmed.

PENDLETON, President.

The bond is to Peter Eppes, his heirs or executors, to operate in succession, and not to any two at the same time; to Peter during his life, in which no breach was made, and at his death it became payable to one of his two legal representatives, and not to both. So that the objection that the obligee was liable, at the same time, to be sued by two different persons, does not seem to have any force. The paper and the remedy can belong only to one; and the question is, to which? The heir is as much the legal representative of the testator as to the real estate, as the executor is as to the personal; and, with the land, the heir takes all deeds, and writings relating to them, whether for conveying the title or protecting his quiet enjoyment; with none of which could the executor intermeddle, as it is laid down by Bacon in his second volume 421 (from Roll’s abr. 919, and Wentw. 63,) where he is professedly treating of the distinct rights of the heir and executor.

The same author in his 3d vol. 20, treating of the rights of the .heir to take ad ■ vantage of the conditions or covenants made to the ancestor, lays down this general principle, “conditions and covenants real, or such as are annexed to estates, shall go to the heir and he alone shall take advantage of them.” In a note he makes this obvious distinction that in case of a breach in the testator’s lifetime it shall go to the executor; the land being gone and the substitute money.

But we are embarrassed by the term penalty ; which is money; was a debt from the date of the bond; and therefore, at law, must go to the executor. This, if it could be true, would wholly derange the principles laid down by Bacon : And how is it proved? I consider it to be the same as timber on the land; if severed in the testator’s life *time it will go to the executor; if growing it will belong to the heir. It is laid down in Co. Litt. 292, that if a man be bound by deed to pay another a sum of money at a future day, a release of all actions before the day shall be a bar; because the debt was a thing in action, and although he could not sue, because it was debitum inpraesenti, solvendum in futuro, yet since the right of action was in him, a release of all actions was a discharge of the debt.

Penalties in their nature follow the subject they are intended to inforce: And the case put pf a nomine poenae 3d Bacon 20, applies directly, in terms; since he states the case of a penalty to inforce the payment of rent; which (that is the penalty) he says ought in reason to go to him who has a right to the rent. So, in the present case, the penalty is to go to him who lost the land intended to be protected by it. But it is said, that there is no instance of a suit by the heir for a penalty. I have not searched for the precedent; but believe it would be, at least, as difficult to produce one, of an executors suing for the penalty of a bond, which had a condition for quiet enjoyment of land annexed to it, and the condition not broken at the testators death.

In this case the heir has sustained the loss to be recompensed; he is named as obligee in the bond; has rightfully the possession of it; and I can find no principle of the most rigid law to prevent his recovery in the mode he has pursued.

A majority of the Court therefore is of opinion that the errors assigned to arrest the judgment are insufficient for the purpose ; and consequently that the judgment of the District Court is erroneous: It is therefore to be reversed, and judgment entered for the plaintiff.  