others Page. 170, 171. 69. The Attorney-General, for the Commonwealth, said, MAY, 1808. that he did not understand Mr. Wickham as controverting Craghill and 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, (a) (a) Cro. Fac.. Salman v. Bradshaw,(b) Proctor v. Burnet,(c) and Hughes (6) Ib. 304. v. Richman,(d) all decided in the Courts of England.(1)(c) 3 Mod. But after the decision of this Court in the case of (d) Cowp. Branch v. Randolph, Governor, &c.(e) upon an elaborate 125. (e) Oct. 17. argument, and a full review of all the British authorities, 1805. MS. 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.(2) (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. (2) 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 im"posed in this said county by virtue of an act of Assembly entitled "❝ an act to amend and reduce the several acts of Assembly for ascer"taining 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. MAY, 1808. Craghill and others Page. 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 of fice; and must be presumed to know the amount of the Commonwealth's claim against him. In Winston v. The (a) 2 Call, Commonwealth,(0) the Court recognizes the distinction be tween public and private claims, and the facility with which public debtors may know the amount due from them to the Commonwealth. 290. 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 evi dence 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 prema turely executed. The law has been correctly stated that the practice of the General Court shall conform to that of the District Courts; 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 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. Craghill and others V. defendant relieves himself by pleading to issue. Where MAY, 1808. the plaintiff chooses to have a jury sworn to inquire of damages, the law expressly authorises 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. 225. Page. But the case of Mandeville v. Mandeville(a) is conclu- (a) 3 Call, sive 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.(b) (b) Rev. Code, But the law does not say they shall be tried; nor is there vol. 1. c. 67. any clause in the District Court law, which forbids the trial of a writ of inquiry at the same term. The County Court law(c) provides that the proceedings of the County (e) Ib. c. 67. Courts, on the law side, shall conform to the practice of the s. 69. p. 92. 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. s. 29. p. 88. 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 (d) 5 Bac. bond is any part of the record.(d) Abr. Gwil. ed. 436, 437, "PLEAS & It is said by Mr. Wickham, that the writ is necessarily a 438. Tit. part of the record, in all cases where there is a judgment "PLEADby default. The reason of this distinction between judg- "INGS," Let. (1) Div. ments by default, and where there is an appearance, cannot 12 Sub-dio.2. easily be perceived. On executing the writ of inquiry the 3 Tuck. plaintiff must prove his demand; and this Court will pre- Bull. N. P. sume that the Court below did right. Black. 299. 253. 5 Comyn's Rose, 466. But, even if it were necessary to consider the bond a part Digest, by of the record, where the judgment becomes final after an 468. Tit. "PLEAD office judgment, and the clerk issues the execution without ER." p. 1. p. the intervention of a Jury, as in cases of debt for the pay- 2. ib. 2. V. 4. MAY, 1808. ment 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. Craghill and others, V. Page. (a) See Branch v. the Commonwealth, 2 Call, 510. 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. Wednesday, May 18. The Judges delivered their opi nions. 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 affirm ed.(a) 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 øyer 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 Craghill and others V. Page. against Little's administrators. It is not necessary to lay MAY, 1808. damages in the declaration in an action of debt.(a) In the case of Hook v. Turnbull, May, 1806, I gave it as my opinon 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; ONS, J. 2 (a) Per Lythe declaration may then be amended by the writ, and that Wash. 212. 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 pincipal, 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. Stevens v. White. c. 66. sect.28. p. 78. and 80. 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,(b) I am fully satisfied that a (6) Ed. 1794, writ of inquiry ought not to be executed in the General Court, and 42. Rev. or District Courts, at the term next succeeding the rule Code, 1 vol. day 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 |