cause the bond described in the instrument, relied on as a release, is not the bond sued on; tho bond sued on being a bond for the payment of money, as appears by the verdict and judgment rendered under the 56th section, in the revised code, page 117; the same with the statute of Anne. But the bond, described in the release, is a bond conditioned to do some other thing than the payment of money.

By the demurrer, we admit the existence of the instrument pleaded as a release, and all the facts stated in the instrument; but we say the facts stated in said instrument show that, if a release at all, it is a release of some other bond than the one we have sued upon.

Had this release been pleaded as a condition of the bond, and on oyer spread out in the plea; it would not have been evidence, on record, of a condition to the bond; and, on demurrer, such plea would have been overruled; much less, when pleaded as a release, is it evidence of a condition. The supreme court will take no notice of a condition, unless spread on the record by oyer.

But a judgment for the whole penalty is correct, and not erroneous, even under the 55th section, statute of William. But the plaintiff can only take out execution for the damages assessed by the jury, for such breach of the condition; and the judgment is to stand for any future breach, until the whole penalty is paid: that there would be no error in a judgment for the whole penalty, upon nil dicit, default or judgment on demurrer, tho' breaches were not assigned, even if this was a bond conditioned to do some other act than the payment of a sum certain. But the verdict and judgment show that it is a bond conditioned for the payment of money, and then, by the 56th section, the queen Anne act, no assignment of breaches is necessary, as a jury is not required to ascertain the amount of damages; the amount being ascertained by the condition of the bond, and being merely a matter of clerical calculation.

But, in this case, it was not a judgment upon a demurrer barely; but a plea of fraud was put in, which the plaintiff denied, and the jury found a verdict against the plea.

Mr. Henderson contends that his plea of fraud shows that there was a condition to do some other act than the payment of money. But we deny his plea; and our denial cannot be construed into an admission of the fact,

There might have been fraud in pocuring another bond with a condition such as is stated in the plea; as also there may have been a release of such other bond; and on that very ground, for aught the court can see upon the record, the jury might have found against the plea of fraud, because the fraud was applicable to another bond having such a condition as is stated in the plea, and not to the bond upon which we have sued, as is alleged by the plea, but denied by the plaintiff; 1 Wheaton's Selwin, 485; 9 Eng. Com. L. Rep., 37; 8 John., 111; 3 Bos. & Pul., 607.

A discharge to the surety does not discharge the principal debtor in equity; the rule of the civil law; 6 John. C. R.; 1 Pothier, 403, margin 581; appendix, 2d vol., pages 71 & 72.

OPINION OF THE COURT-BY THE HON. I. R. NICHOLSON

We are satisfied, in this case, that the action was founded on a bond with conditions; that the jury assessed damages without any assignment of breaches, which was improper and incorrect, and for which the judgment below must be reversed, the cause remanded, and venire de novo awarded, and parties have leave to amend their pleadings.

Judge Smith concurs.

OPINION OF THE HON. A. MONTGOMERY.

In this case, I concur in reversing the judgment of the court below,but for a different reason.

The verdict of the jury is, that they find for the plaintiff the debt in the declaration mentioned to be discharged by the payment of a less sum than the amount of debt declared for. There being no condition to the obligation set out, and breaches assigned, nor any plea under which the jury was authorized to make a deduction from the debt,--they should, if they found for the plaintiff at all, have found the whole debt, and damages for the detention.

I do not think the plea of release can be sustained; as there was evidently no consideration moving between the parties, at the time of its execution; and to make a good parol release, there must be an actual consideration.

F. BIGGAM vs. O. MERRITT.-HYDE & MERRITT vs. SAME. Where two judgments were rendered on the same day, preference will be given to the one first entere OPINION OF THE COURT-BY THE HON. JOHN BLACK. Motions were made in each of the above entitled suits to appropriate the money made by the sheriff, of which he has made a special return, each execution contending for preference, which motions were referred to this court by the judge of the circuit court, on a statement of facts.

The question proposed for consideration is, whether under the act of the legislature of 1824, by which all property, real and personal, is bound from the entering of judgments; the court wil! consider of the fractional parts of a day, and give preference to one judgment over another, when they are both entered upon the same day, but the one prior in point of time to the other: it would appear both just and reasonable, when time is necessary to be considered, in order to determine the substantial rights of a party, that the court should discard all these fictions of law sometimes necessary to preserve the harmony and symmetry of its proceedings, and consider it in its various divisions. The court will not endure that a mere fiction at law, introduced for the sake of justice shall work a wrong. The courts in England, as well as those in the United States, have been governed by these principles. In Johnson vs. Smith, 2 Barrow, 950, it was determined, that when the substantial rights of a party required that the real time of sueing out a latitat should be shewn, it might be done, notwithstanding the fiction of law which extended the teste to the term previous. The point raised in this case was first insisted upon in Adams vs Dyer; 8 John. 347, which case was determined on a different principle; but from the principles upon which the court proceed, it is to be inferred, if the facts had been made out by legal proof, the court would have considered the day divided into fractional parts. The same question was afterwards raised in the supreme court, of the same state, in cases precisely

analagous to those, before this court-1 Cowan, 592, in which it was expressly determined, that the court will ascertain the real and true time when judgments are entered, and the lien attaches in favor of that first entered. Priority was then determined in favor of the judgment entered five minutes before the others.

It is unnecessary to determine, in the present case, what would be the effect of a judgment by default, which is made final by our statute, on the adjournment of the court; in both the present cases juries were empannelled, and judgment entered up forthwith on motion.

It appearing by the minutes of the court that the judgment in the case of F. Biggam vs. Merritt, was first entered, it will be entitled to be first satisfied.

All the judges concurred.

HEAD & DAVIS vs. GERVAIS & MORSE.

An attorney at law cannot assign a judgment without express authority from the plaintiff. Where a party complainant goes into chancery to enjoin a judgment at law and prays an account, and the defendant goes into the account, it is too late after testimony closed and on final hearing for complainant to set up want of jurisdiction as to the subject matter of the account.

BRIEF OF E. MAGEE, ESQR.

The bill charges that Gervais, in 1825, recovered judgment for $3037 24, against complainants;-that at April term, 1826, they paid $1200, and that they paid the balance and cost to Gervais, through M. Morse, in whose hands they put 120 bales of cotton for that purpose, the proceeds of which was $4274 75,-also that they had settled up with Morse for his store accounts, for all which he receipted in full; that the execution was not credited as paid, but fraudulently kept on foot by Morse, to whom it had been assigned, and that Morse fraudulently obtained the receipts from Head and Davis-prays subpoena, injunction and

account.

Answer of Morse, states that in 1825 & 6, Head and Davis owed him

for advances and store account exceeding $1000; that early in 1826, he received from them 131 bales of cotton, which he shipped to Orleans; that before the sale of the cotton at complainant's request, he advanced to Gervais the amount of the execution, with the express understanding of all parties, that the judgment should be assigned to him, and remain in force for his benefit, and that the judgment was accordingly assigned by Sharkey, the attorney, with the consent of all parties, for his greater security. He denies that complainants ever paid one dollar of the execution as falsely alledged in this bill, and that the credit of $1200 was entered on the execution, under the mistaken idea that a balance to that amount would be in his hands from the proceeds of the cotton, after discharging the store account; that the cotton was represented as of the best quality, and that the bales would average 450 lbs. each; whereas in truth the cotton was inferior in quality, and only averaged 350 lbs. per bale, of which he was not aware until after the advance on the execution. The nett proceeds of the cotton were $4174 75; his store account against complainants was $1180 75; that complainants afterwards procured drafts from the house of Lane & Armstrong, for $3257 21, and endorsed them to this respondent, which were to be in payment, if cotton were placed in the hands of Lane and Armstrong by complainants in due time to meet the drafts, and gave them conditional receipts; that they failed to meet the drafts, and Morse was compelled to take them up; that they gave up the receipts under a sense that they were not entitled to them after the failure; that he advanced Davis $300, and received 20 bales of cotton, the surplus of which say $550, was put to the execution; that Lane and Armstrong attached 45 bales of cotton in Orleans, from which he realized about 750 dollars. Denies all fraud, &c.

Answer of Gervais amounts to a disclaimer of interest in the present controversy very irritable, abuses all parties, and says Sharkey, had no authority to assign the execution, and intimates that his attorney has not paid him up yet.

Interlocutory decree directs an account to be taken between complainants and Merse up to the 9th of June, 1828-commissioners report that complainants on that day owed Morse 2045 73 4-4 cents.

The testimouy of Sharkey and Downs clearly establish the fact, that