etting aside Satisfaction.

Assignment of breaches.

Assignment of breaches on penal Covenant.

Effect of judgment for penal sum.

Assigning breaches in plaint.

and the Court, upon being satisfied that the amount of the judgment had been paid off, ordered satisfaction to be entered, upon the grounds that the plaintiff, by issuing execution, had waived the costs. See also Clancarty v. Ormond, Ir. Jur. O. S. 398, in which case the judgment had been entered up in the name of a wrong person.

When an entry of satisfaction has been improperly made, it will be set aside, and the Court possesses the same jurisdiction in the case of a warrant to satisfy that it does in the case of a warrant to enter up judgment (Nuttall v. Nuttall, 4 Ir. L. R. 480); or in such a case an order may be made to enter up a new judgment (Mahon v. Martin, 12 Ir. L. R. 489).

The Court will set aside a satisfaction collusively entered up for the purpose of defeating the attorney's lien (Sullivan v. Murphy, 4 Ir. Jur. O. S. 155), and see ante, p. 69.

on

With respect to the assignment and suggestion of breaches covenants and agreements for payment of any penal sum (m).

145. In any action on any bond, covenant, or agreement for payment of any penal sum' for nonperformance of any covenant or agreement contained in any deed or writing (n), and whether accompanied by warrant of attorney or not (o), the plaintiff may assign one or more than one breach of such covenant or agreement in his summons and plaint (p).

(m) This and the two following sections are substituted for 9 Wm. 3, ch. 10, s. 8, which is repealed by the present Act. Previous to that enactment the plaintiff, if he obtained a judgment in an action on a bond, given as a security for the performance of a collateral agreement, recovered the full penalty of the bond besides costs of suit, and he was also entitled to take out execution for the whole, without any regard to the damages which he had actually sustained by the breach of the condition, and the defendant could only obtain relief against this by application to a Court of Equity. The plaintiff, however, is now prevented by the above and following sections of the Act from recovering the full penalty of the bond, and limited to damages only. In some respects the provisions of the present Act are more comprehensive than those of the 9 Wm. 3, ch. 10, for that Act did not, at least expressly, extend to cases where the bond, &c., was accompanied with a warrant of attorney; see post, note (o). It was also necessary under that Act, in case further breaches happened, to issue a scire facias to assess the damages, while now it is only necessary to file a suggestion; see sec. 147.

The above section, as may be observed, provides not merely for cases where an action is brought upon a bond, but also for actions on a covenant or agreement for payment of a penal sum for nouperformance of a covenant or agreement contained in any deed or writing. In such an action, therefore, the plaintiff should assign in his summons and plaint the several breaches for which he seeks to recover damages. If, however, he should not do so, and the defendant merely traverses the making of the bond, the plaintiff will be entitled to a judgment for the full amount of the penalty (Castlerea Union v. Dillon, 12 Ir. L. R. 465), and will then have to suggest breaches before issuing execution. In such a case, however, or where judgment goes by default, the plaintiff, in case he does not assign breaches in the summons and plaint, may find himself embarrassed in afterwards suggesting breaches

which have occurred previous to the action; see note (v), infra. As to obtaining security for costs in the case of a suggestion of breaches, see ante, P. 49.

the Statute

cannot be

Where judgment has been entered up by virtue of a warrant of attorney, or by agreement, previous to the happening of a breach, the 157th G. O. 1854, provides that the 147th section of the Act shall be applicable to the first suggestion of breaches. The Crown is not bound to pursue the course pointed out by the Act (R. v. Peto, 1 Y. & J. 169, 171); but, with that Benefit of exception, in all cases coming within the Act, the provisions of the Act are mandatory, and cannot be waived even by the previous agreement of the waived. parties (Montgomery v. Byrne, 2 Ir. C. L. R. 230; Delacour v. Murphy, 13 Ir. L. R. 195). And an execution, issued without a previous assignment or suggestion of breaches, will be set aside (Hull v. Blackwell, 10 Ir. C. L. R. Ap. 38; Ryan v. Massey, 2 Ir. C. L. R. 642). So also as regards any breaches taking place after judgment has been entered, the plaintiff must suggest breaches in the manner provided by sec. 147, post.

(n) The class of cases provided for above should be distinguished on the Liquidated one hand from those cases where the sum named is treated as liquidated damages. damages, and, on the other, from the case of bonds and other securities for the payment of moneys, which are provided for by 6 Anne, C. 10, 85. 12, 13. In both of the two latter class of cases execution may be issued without any assignment of breaches or further proceedings. As to when a sum named is to be treated as a penalty, and when as liquidated damages, see Leake on Contracts, p. 573; and Bonsall v. Byrne, Ir. R. 1 C. L. 573. As regards Money bonds. the other class of cases adverted to, viz. cases where a bond is given conditional for the payment of money merely, the plaintiff may issue execution for such sum as may be due to him without assigning breaches. If, however, he overcharges the execution, it will be set aside, and he may be liable to an action, if it appears that the execution was overcharged maliciously and without probable cause; see ante, sect. 129, and the notes thereto; also, Smith v. Sydney, L. R. 5 Q. B. 203.

Where a defendant executed a bond for £620, conditioned for the payment of £310 and interest, and contemporaneously the plaintiff wrote a letter to the defendant, by which he undertook, that upon the defendant effecting a policy of assurance on his life in favour of the plaintiff for the sum of £310, and paying interest thereon, upon the days provided, he would not put the bond or judgment thereon in force, it was held that the plaintiff might issue execution without assigning breaches, the object of the bond not being to secure the performance of a duty or agreement, but the payment of a sum certain which was a bona fide subsisting debt (Quinn v. O'Keeffe, 10 Ir. C. L. R. 393). Neither does the Act apply where the bond is for the pay- Post obit ment of a sum of money in gross at a certain time as a post obit bond bond. (Murray v. Earl of Stair, 2 B. & C. 82, 90); and see Smith v. Bond, 10 Bing. 125, where the distinction between the two classes of cases is discussed. On the other hand, there must be a suggestion of breaches where the bond is conditioned for the payment of money by instalments (Hall v. Blackwell, 10 able by Ir. C. L. R. Ap. 38; Harrington v. Coxe, 3 Ir. C. L. R. 87; Willoughby v. instalments. Swinton, 6 East, 550); unless there be a clause that all is to be due on any default in payment of principal or interest (James v. Thomas, 5 B. & Ad. 40; Buchanan v. Jack, Ir. R. 5 C. L. 41). So also there must be an assignment of breaches where the bond is conditioned for payment of an annuity Annuity (Ryan v. Massey, a Ir. C. L. R. 642; Walcot v. Goulding, 8 T. R. 126) bond.

Money pay

Bond partly for payment of money.

Warrant of
Attorney.

Assigning several breaches.

Damages on breaches to be ascertained.

for the due collection of and accounting for moneys by a tax collector (Stratton v. Codd, 9 Ir. L. R. 1; Delacour v. Murphy, 13 Ir. L. R. 195); for the performance of an award (Welch v. Ireland, 6 East, 613); or of any other specific act; see Power v. Lowe, 5 Ir. C. L. R. 364, in which case it was held that a suggestion of breaches is necessary, though the contemporaneous instrument controlling the bond is not under seal. Where to an action upon a bond, conditioned for payment of £1000 on a day certain, and for performance of the covenants in a deed, the defendant pleaded a general plea of performance of all things mentioned in the condition, and the plaintiff denied that the defendant paid the £rooo; it was held, that as the plaintiff was proceeding solely on the breach for non-payment of the money, it was not necessary for him to assign breaches (Noakes v. Manser, 3 D. & L. 17). The section extends, of course, to cases where the agreement under which the penal sum becomes payable is in writing, but not under seal; but there should be something in writing to connect the bond with the agreement (Hall v. Blackwell, 10 Ir. C. L. R. Ap. 38, 40).

Bail Bonds and Replevin Bonds are not within the section (Moody v. Pheasant, 2 B. & P. 446; 2 Wms. Saund. 187, n. (2).

(0) Previous to the Common Law Procedure Act, it was frequently held that, where a warrant of attorney containing a release of errors had been given, the Statute of William did not apply (Austerbury v. Morgan, 2 Taunt. 195; Woffington v. Armstrong, Glasc. 209). Subsequently, however, it was held that breaches should be suggested, notwithstanding that a warrant of attorney had been given (Burke v. Dublin and Kingstown Railway Co., 3 Law. Rec. N. S. 24; Stratton v. Codd, 9 Ir. L. R. 1). The Statute puts an end to such questions.

(p) Previous to the Statute of William it was sufficient to assign one breach, and to have assigned more would have amounted to duplicity (Manser's Case, 2 Co. Rep. 4 a). As to the necessity of assigning all the breaches under the present practice, see sec. 147, note (r).

146. In all such actions as last aforesaid the jury or the Master shall ascertain the damages in respect of such breach or breaches as shall be proved or admitted, and judgment shall be entered for the full amount of such penalty, with an award of the payment of the damages assessed, if any; and in case the defendant shall pay into Court to the credit of the cause the damages so assessed by the jury or the Master, with the costs of suit, a stay of execution shall be entered on the record of such judgment for that time; and in case the plaintiff shall be paid or satisfied the said damages so assessed, or the penal sum aforesaid, at the election of the defendant, with the costs of suit aforesaid, and of execution, the defendant shall be discharged from such execution entirely, or for that time, and for the amount so paid according as the case may be, and such discharge may be entered on the record of said judgment; but in case the said damages do not amount to the said penal sum, such judgment shall still remain in full force as a further security to answer the plaintiff, his execu

tors and administrators, all such damages as may be afterwards sustained by reason of any further breach of any covenant or agreement in said deed or writing, as far as the remainder of such penal sum, after the payment of the damages formerly recovered out of the same, will reach (q).

default.

(9) The proceedings to assess the damages in respect of the breaches are Where judgthe same as upon an ordinary trial or writ of inquiry. In the case of judgment by ment by default, the plaintiff need not prove the breaches if they have been assigned further than is necessary for the purpose of ascertaining the amount of damage sustained; and see The Balieborough Union v. Watt, 5 Ir. Jur. O.S. 108. Damages can only be assessed in respect of the breaches assigned, and there must be a fresh suggestion in case of any breaches occurring after the commencement of the action.

Suggestion of

execution on

147. In all such actions as last aforesaid, in case judgment further shall pass for the plaintiff, and the full amount thereof and breaches and the costs of suit shall not have been paid or levied, and after- same. wards any further breach or breaches shall happen, the plaintiff shall be at liberty to file one or more than one suggestion of such breaches in the form No. 9. in the Schedule B. to this Act annexed, or to the like effect, and such suggestion shall be pleaded to, and the truth of the matters therein suggested shall be tried and damages awarded, and judgment and execution shall be given in like manner, as if the same were on summons and plaint; and upon payment or satisfaction of such further damages and costs further proceedings shall be stayed for that time; and so from time to time, as often as occasion may require, on every new breach, the said judgment may be resorted to, so far as aforesaid, and no further; and upon payment or satisfaction made to the full amount of said penal sun and costs as aforesaid the said defendant, his body, lands, and goods, shall be discharged of all execution in respect of the same (r).

(r) By the 157th G. O. 1854, it is provided that the provisions of the First present section are to be applicable to the case of a first or original sugges- breaches.

suggestion of

tion of breaches as well as as to the case of a further or additional breach, and by the 156th G. O. 1854, a suggestion under the above section may be entered as of course without any rule. As to suggestions, in general, see the note to the 156th G. O. Where the original judgment has been recovered Reviving more than six years, or there has been a change of parties, the judgment judgment. must be revived before taking further proceedings; and in such a case the plaintiff may, pursuant to the 107th G. O. 1854, suggest breaches in the writ of revivor if necessary. Where the judgment has been entered up in a penal sum to secure a lesser sum, the writ of revivor should not pray for execution of the penal sum, but of the sum intended to be secured (Barrett v. Driscoll, 11 Ir. Jur. N. S. ì19). For forms of suggestion see Chitty's Forms, 10th ed., p. 536.

Breaches occurring before the action.

Proceedings

to recice.

Execution

Nothing can be suggested as a breach which might have been originally assigned or suggested (2 Wms. Saund. 187, c. n. (g), 7th ed., Harrop v. Armitage, 12 Price, 441). And although under the practice prevailing in this country, previous to the passing of the Common Law Procedure Act, and still prevailing in England, the plaintiff in case of a judgment on demurrer, or by nil dicit, might suggest breaches on the roll where none had been assigned in the declaration; it may be a matter of some doubt, having regard to the difference between the language of the 145th sect. of the present Act, and 9 Wm. 3, c. 10, ss. 8 & 9, Ir. (8 & 9 Wm. 3, c. 11, s. 8, Eng.), whether the plaintiff could adopt such a course in the case of a judgment by default.

And with respect to the time within which execution may be issued, and the proceedings for the revival of judgments and other proceedings by and against persons not parties to the record, be it enacted as follows:

148. Writs of execution may be issued, at any time within without revi- six years after the recovery of the judgment, by or against the plaintiffs or defendants, or the survivors of them, without any revival of such judgment (s).

val, 15 & 16 Vict. c. 76, s. 128.

When execution was issuable at Common Law.

Issuing execution after change of parties.

(s) At Common Law no execution could be issued upon foot of a judgment after the lapse of a year and a day, the presumption being that the judgment was satisfied. By the statute of Westminster 2 (13th Ed. 1, c. 45), however, the execution creditor was permitted after the lapse of the year and a day to issue a scire facias, calling on the opposite party to show cause why execution should not issue; and as the law now stands under the above section, execution may be issued at any time within six years after the recovery of the judgment, unless a new party becomes entitled to or liable to execution, in which case the judgment must be revived. After the lapse of six years the judgment may be revived in the manner provided by the following sections.

According to the practice prevailing previous to the present Act, if the plaintiff had been prevented from suing out execution by proceedings in error, or an injunction, or by reason of the judgment having been entered up with a stay of execution, or by agreement, the time would not begin to run until the proceedings in error were determined, the injunction dissolved, or the time mentioned in the stay had elapsed; Ch. Ar. Pr., 12th ed., p. 1124. And it was also unnecessary to issue a scire facias, for the purpose of reviving the judgment previous to issuing execution, if the defendant had agreed to dispense with the necessity for so doing. Ib. So, also, when a fi. fa., or a ca. sa, was taken out within the year and not executed, a new writ of execution might be sued out at any time afterwards without a scire facias, provided that the first writ was returned and tiled, and continuances entered from the time of issuing it. Tidd's Pr., 9th ed., p. 1103.

If an execution be issued after the lapse of six years, or a change of parties upon foot of a judgment which has not been revived, the execution is voidable only and not void (Blanchenay v. Burt, 4 Q. B. 707; Goodtitle v. Badtitle, 9 Dowl. 1009). Where after judgment had been entered up, the plaintiff became insolvent, and an execution was thereupon issued by his assignees without any suggestion having been entered upon the record, the execution was set aside (Carolan v. Nolan, 7 Ir. C. L. R. 114); where, how