Construction of statute. To what cases it extends. To what not. 66 cr "such damages so to be assessed, together with his or their costs of suit, ❝ and all reasonable charges and expenses for executing the said execution, the body lands or goods of the defendant shall be thereupon forth"with discharged from the said execution, which shall likewise be en"tered upon record: But notwithstanding, in each case, such judgment "shall remain, continue and be as a further security to answer to the plaintiff or plaintiffs, and his or their executors or administrators, such damages as shall or may be sustained, for further breach of any cove"nant or covenants in the same indenture deed or writing contained." This statute was made in favour of defendants; and it is highly remedial, being calculated to protect them against the payment of more money than is justly due, and to take away the necessity of proceedings in equity, to obtain relief against an unconscientious demand of the whole penalty, in cases where small damages only have accrueda: and accordingly, it has received a very liberal construction. Where covenants and agreements are contained in the condition of a bond, they are holden to be within the statute, as well as where they are in a different instrument b: And though it was formerly doubted, yet it is now settled, that the statute is compulsory on the plaintiff, to proceed in the method it prescribes d. A bond conditioned for the payment of an annuity, or of money by instalments, is holden to be within the statute; or a bond conditioned to perform an award 8. And where a bond, upon the face of it, appeared to be conditioned for the payment of a sum certain, but by an indenture of the same date, declaring the purposes for which the bond was executed, it was agreed that it should be lawful for the obligees to commence an action upon the bond, and to proceed to judgment, whenever they should think fit; and upon judgment being obtained to issue execution, and that the judgment should be a security for the payment to the obligees, on demand, of all sums of money which then were, or might thereafter become due to them; and judgment having been entered up by virtue of this deed, the obligees issued execution, without assigning breaches or executing a writ of inquiry; the court held, that this was a bond substantially conditioned for the performance of an agreement, within the statute 8 & 9 W. III. c. 11. § 8. and that the obligees ought to have assigned breaches thereon". But the provisions of the statute do not extend to post obit bonds', or other bonds conditioned for the payment of money, which are provided for by the statute 4 Ann. c. 16. § 13.; nor to bail', or replevinm bonds ; a 5 Durnf. & East, 636. b 2 Bur. 772. 2 Ken. 492. S. C. 2 Bur. 820. 2 Ken. 530. S. C. Blac. Rep. 843. Doug. 519. Com. Rep. 376. d 2 Wils. 377. Say. Dam. 67. S. C. Cowp. 357. Daubeny v. Hogarth, E. 27 Geo. III. K. B. Per Cur. H. 41 Geo. III. K. B. 13 East, 3. (a). e 2 Bur. 820. 2 Ken. 530. S. C. 5 Durnf. & East, 538. 636. 8 Durnf. & East, 126. f 6 East, 550. 2 Smith R. 663. S. C. 86 East, 613. 2 Smith R. 666. S. C. h 5 Barn. & Cres. 650. 8 Dowl. & Ryl. 424. S. C. i 2 Campb. 285. n. 2 Barn. & Cres. 82. 89, &c. 3 Dowl. & Ryl. 278. 281, &c. S. C. * 2 Moore, 220. 1 Selby and others, assignees, &c. v. Serres, E. 41 Geo. III. K. B. 2 Bos. & Pul. 446. C. P. m Maule & Sel. 155. nor, as it seems, to bonds given to the Lord Chancellor, by the petitioning creditor for a commission of bankrupt, under the statute 6 Geo. IV. c. 16. § 13: And where judgment is entered upon a warrant of attorney, it is not within the statute b. It is not necessary for the crown to assign breaches, under the above statute; and if any one breach be proved, the crown is entitled to judgment. breaches. Writ of inquiry, and proceedings thereon. In cases where the statute applies, judgment is signed for the penalty, Judgment for penalty. as at common lawd; but it can only stand as a security for the damages. sustained and, after signing judgment, the plaintiff must proceed on Suggestion, and the statute, by suggesting breaches on the rolle; of which a copy should copy of be given to the defendant, with notice of inquiry for the sittings or assizes 6. A writ of inquiry h is then sued out, and delivered to the sheriff; who summons the jury, and returns the jury process, with panel of the names of the jurors: and the writ being executed, is returned to the court, with the finding of the jury, and execution awarded for the damages and costs: But no second judgment is given by the court, on the return of the inquiry k. On the execution of a writ of inquiry on this statute, after Evidence, on judgment on demurrer, the execution of an instrument which the defend- inquiry. ant had stated, in setting out the condition of the bond in his plea, need not be proved1: But, in debt on bond conditioned for the performance of covenants, if the condition be not set out in the pleadings, the plaintiff, on executing a writ of inquiry under the statute 8 & 9 W. III. c. 11. must prove that the bond mentioned in the suggestion, and produced to the jury, is that on which the action was brought m. CHAP. XXIII. Preparing for defence, on the merits. Oyer of deeds, &c. in what cases demand able by defend ant, and how given. By plaintiff. Formerly, demanded in court. Of OYER, and COPY of DEEDS, &c.; INSPECTION, and CoPIES of WRITTEN Instruments, Books, COURT ROLLS, &c.; and PARTICULARS of DEMand, or Set off. HITHERTO we have supposed the action to be rightly brought, and considered what is to be done, when the defendant has no merits. We have seen, that in such case he should compromise or compound the ac tion, confess it, or let judgment go by default. But when the defendant has merits, he should prepare for his defence; and for that purpose may, if circumstances render it necessary, crave oyer and copy of deeds, &c. claim inspection and copies of written instruments, books, court rolls, &c. or call for particulars of the plaintiff's demand; or he may move the court to change the venue, consolidate actions unnecessarily divided, or strike out superfluous counts; or he may bring money into court. Oyer of deeds, &c. is demandable by the defendant, or by the plaintiff. If the plaintiff, in his declaration, necessarily make a profert in curia of any deed, writing, letters of administration, or the like, the defendant may pray oyer of the deed, &c. a; and must have a copy thereof delivered to him, if demanded, paying for the same after the rate of four-pence per sheet : And a defendant, who prays oyer of a deed, is entitled to a copy of the attestation, and names of the witnesses, as well as of every other part of the deed. So likewise, if the defendant in his plea make a necessary profert in curia of any deed, &c. the plaintiff may pray oyer d; and shall have a copy, at the like rate: And the party, of whom oyer is demanded, is bound to carry the deed, &c. to the adverse party f. In an action on a bond, in which articles are referred to, oyer of the bond may be demanded, but not of the articles 8; though time to plead may be obtained, till the plaintiff give a copy of them, on an affidavit that defendant has no copy в. Formerly, all demands of oyer were made in court, where the deed is by intendment of law, when it is pleaded with a profert in curia: And therefore, when oyer is craved, it is supposed to be of the court, and Cannot be dis pensed with. When not grant able. not of the party; and the words ei legitur in hæc verba, &c. are the act of the court a. In practice however, oyer is now usually demanded, and granted by the attornies: And where the defendant is entitled to have oyer of a deed, it cannot be dispensed with by the court; nor can he be compelled to plead without it, even though the deed be lost. Oyer cannot be granted of a deed operating under the statute of uses d: And where a tenant in a writ of entry pleaded such deed, without a profert, and oyer was required to be granted by a judge's order on a given day; the court directed such order to be rescinded; and the demandant having signed judgment for want of oyer, it was also set aside, the order being merely in the nature of an interlocutory proceeding d. When the deed is in the When deed is hands of a third person, the court will oblige him to give oyer, and produce it e. When a deed is shewn in court, it remains there, in contemplation of law, all the term in which it is shewn; for all the term is considered in law but as one day: and at the end of the term, if the deed be not denied, the law doth adjudge it to be in custody of the party to whom it belongs; but if it be denied, then it shall remain in court till the plea is determined; and if it eventually turn out not to be a good deed, it shall be destroyed. But letters testamentary, or of administration, are not supposed to remain in court all the term; for the party may have occasion to produce them elsewhere 8. Hence it is, that oyer of a deed cannot in strictness be demanded, but during the same term it is pleaded h: And as a general imparlance is always to a subsequent term, it follows that oyer of a deed cannot be demanded after such imparlance. A different doctrine is indeed laid down in one case, which must be understood of a special imparlance, to another day in the same term. in hands of third person. When necessary to be demanded, during same term. Though oyer is not in strictness demandable of a record1, yet if a judg- Of records. ment or other matter of record in the same court be pleaded, the party pleading it must give a note in writing of the term and number roll, whereon such judgment or matter of record is entered and filed; or in default thereof, the plea is not to be received m: And probably on this account, the party was not anciently permitted to plead nul tiel record of a judgment or matter of record in the same court". But where a judgment or matter of record is pleaded in a different court, the party, not being a 12 Mod. 598. 3 Salk. 119. 1 Sid. 308. but see 2 Lutw. 1644. contra. b 6 Mod. 28. C 2 Lil. P. R. tit. Oyer, 266. 2 Keb. 275. 6 Mod. 28. 2 Str. 1186. 1 Wils. 16. S. C. Totty v. Nesbitt, T. 24 Geo. III. K. B. and Mattison v. Atkinson, E. 27 Geo. III. K. B. cited in 3 Durnf. & East, 153. (n). R. M. 1654. § 15. C. P. Pr. Reg. 277. d 9 Moore, 593. 2 Str. 1198. Ante, 487. f Co. Lit. 231. b. 5 Co. 74. b. 2 Lutw. 1644. 2 Salk. 497. 12 Mod. 598. S. C. h 5 Co. 74. b. 2 Lutw. 1644. 1 Durnf. & East, 149. Steph. Pl. 88. i 1 Keb. 32. 2 Lev. 142. Freem. 400. 3 * 12 Mod. 99. and see 2 Show. 310. m Keilw. 96. Carth. 454. 1 Ld. Raym. Of original writ. Demand of, what, and when made. Insisting on. Contesting. Time allowed for giving it, and to plead and reply after. entitled to an account of the term and number roll, must plead nul tiel record. And it seems, that oyer is not demandable of an act of parliament 3. The defendant was formerly allowed oyer of the original writ, in order to demur or plead in abatement, for any apparent insufficiency or variance b. But this indulgence having been abused, and made an instrument of delay, a rule was made, that a defendant be not allowed oyer of an original writ; and that if he demand it, the plaintiff may proceed as if no demand had been made. The demand of oyer is a kind of plead; and should regularly be made by a note in writing, before the time for pleading is expired. If it be not made till after that time, the plaintiff may consider the demand as a nullity, and sign judgment. But though oyer be not in strictness demandable, yet if it be given, the party demanding has a right to make use of its. If the defendant would insist upon his demand of oyer, he should move the court to have it entered upon record: If the plaintiff, on the other hand, would contest the oyer, he may either counterplead it, or strike out the rest of the pleading and demuri; upon which the judgment of the court is, either that the defendant have oyer, or that he answer without it *: On the latter judgment, the defendant may bring a writ of error; for to deny oyer where it ought to be granted is error, but not è converso1. There is no settled time prescribed for the plaintiff to give oyer; but the defendant shall in all cases have the same time to plead, or as many pleading days after oyer given, as he had at the time of demanding it": The time allowed for the defendant to give oyer of a deed, &c. to the plaintiff, is two days exclusive after it is demanded : and if it be not given in that time, the plaintiff may sign judgment, as for want of a plea". If given, the plaintiff shall have the same time to reply, after oyer given him by the defendant, as he had at the time of demanding it 9. b Gilb. C. P. 52. 12 Mod. 35. 189. 2 R. T. 19 Geo. III. K. B. Doug. 227, 8. d 3 Salk. 119. e N. M. 1 Geo. II. C. P. Fowler & Dyer, M. 20 Geo. III. K. B. 1 Durnf. & East, 150. Barnes, 268. 326, 7. 2 Bos. & Pul. 379, but see Cas. Pr. C. P. 72, 3. 96. Pr. Reg. 278. 299. S. C. Barnes, 329. 2 Wils. 413. by which it appears, that formerly oyer must have been demanded, in the Common Pleas, before the expiration of the rule to plead: and vide ante, 469. B Doug, 476, 7. and see 1 Wms. Saund. 5 Ed. 317. (2). h 6 Mod. 28. i 2 Lev. 142. 2 Salk. 497. and see 2 Ld. Raym. 970. 1 Wms. Saund. 5 Ed. 9. c. * 2 Lev. 142. 12 Salk. 497. 6 Mod. 28. 2 Ld. Raym. 970. S. C. 2 Str. 1186. 1 Wils. 16. S. C. 1 Wms. Saund. 5 Ed. 9. c. 2 Wms. Saund. 5 Ed. 46. b. (7). m It seems from the rule of Mich. 1654. § 15. C. P. that it ought to be given, in the Common Pleas, before the end of the next term after it is demanded. 1 Str. 705. R. T. 5 & 6 Geo. II. (b). K. B. 8 Durnf. & East, 356, 7. Cas. Pr. C. P. 72. 81, 2. 143. Pr. Reg. 28. 300, 301. Barnes, 238. 254. S. C. Ante, 468. • Carth. 455. 2 Durnf. & East, 40. P 6 Mod. 122. Cas. Pr. C. P. 95. Pr. Reg. 301. Barnes, 245. S. C. 9 R. T. 5 & 6 Geo. II. (b). K. B. And see further as to oyer, and such points in parti |