The first question submitted to the consideration of the court on this report is, whether the action be not barred by the statute of limitations. The defendants’ counsel contends that it is so barred, as the cause of action accrued on the first breach of the defendants’ bond, which was more than twenty years before the commencement of this action. The answer to this objection is, that the bond was a continuing security, and that each successive failure to comply with the condition was a new breach, and a new cause of action ; and that the statute of limitations is no bar to an action upon any such new breach, alleged and proved to have been made, by the non-performance of the condition, at any time within twenty years before action brought.
It was so ruled at the trial, and to this ruling we think there is no substantial objection. The plaintiff, it is true, has alleged-in his assignment of breaches, that the defendant Moore, “ during the time he was a deputy sheriff,” had neglected to keep and render the account stipulated for in the condition ; which is perhaps tantamount to an averment that he had neglected, from the time of his appointment, to render such account. But this general averment is substantially an assignment of successive breaches, from time to time, some of which may be barred by the statute of limitations, and the others not. A covenant or condition to do a future act, at different' times, may unquestionably undergo repeated breaches. The objection is formal merely, and might be removed by an amendment of the assignment of breaches; but we do not consider an amendment to *123be necessary. We are therefore of opinion, that as a breach of the condition was proved within twenty years before action brought, the statute of limitations is no bar to the action. The plaintiff was not bound to prove any prior breach, nor was any such breach proved. The plaintiff, at the trial, proceeded on the defendants’ admission, that during the latter part of the time Moore was in office, no such account as was required by the condition was kept. We should not, however, consider it material, if any prior breach had been proved; for it would be no bar to an action founded on the subsequent breaches.
We are then to consider whether the evidence reported is sufficient to warrant a jury in finding a payment of damages, or an accord and satisfaction. The chief justice, at the trial, was of opinion that it was not; and we are all of the same opinion. There was no express evidence of any actual settlement or adjustment; and the lapse of time, with the other circumstances relied on, does not warrant a presumption of the fact. If the cause had been submitted to the jury, and a verdict had been returned for the defendants on this ground, we should consider the court bound to set it aside, as not sustained by sufficient evidence.
Another ground of defence was taken at the trial, by a claim of set-off. The defendants offered to prove, that during the time the defendant Moore was acting as the plaintiff’s deputy, he was also acting, under the appointment of the plaintiff, as keeper of the jail in Concord; and that the plaintiff required him, illegally and improperly, as he contended, to pay over to the plaintiff a part of the fees and emoluments accruing to him as keeper of the jail, which he paid over accordingly. But it has not been shown that such a requirement was illegal or improper. The St. of 1795, c. 41, which was in force while the plaintiff was sheriff, provided that sheriffs should not recover of their deputies more than twenty-five per cent, on the amount of fees for travel, service, &c. But this provision was not applicable to the fees and emoluments received by jailers; and there is no law prohibiting sheriffs from receiving a share of such fees and emoluments, if the parties so agree *124The defendants did not prove, nor offer to prove, that the plaintiff received from the defendant Moore a larger amount of fees for travel, service, and levy of all writs and executions served by him, than the law allows.
We are therefore of opinion, that upon the evidence reported, the plaintiff would have been entitled to a verdict in Lis favor, if the case had been submitted to thg. jury. And it is now, according to the agreement of the parties, to be referred to an auditor, to report the amount due to the plaintiff by reason of any breach or breaches of the bond within twenty years before the commencement of the action.
At the October term 1844, the auditor, who was appointed by the court, made the following report of what passed before him at a hearing of the parties: “ The plaintiff offered the judgment of the court for the penalty of the bond declared on, and claimed thereupon that the auditor should report that execution ought to issue for the amount of the ad damnum in his writ. The plaintiff offered no other evidence of any damage sustained by him, and claimed that the defendant was bound to go forward in mitigation of damages. The defendant offered no evidence in mitigation of damages, and claimed that the plaintiff must show what damage he had sustained, if any. I therefore report these facts, for the court to render such judgment or pass such order thereon as justice may require.”
After argument, by the counsel above mentioned, on the question raised by this report, the opinion of the court was delivered by
Dewet, J.The plaintiff insists, that upon the facts reported by the auditor, he is entitled to an execution for the amount of the damage alleged in his writ, to wit $ 2000 ; that a breach of the bond being shown, it authorizes a judgment in his favor for the whole penalty of the bond; and that such judgment being rendered, he has no occasion to move further on his part. He insists that the provision of the statute giving a hearing in equity on penal bonds is only for the purpose of allowing the defendant to establish by proof, that equity requires a deduc*125tion from the penal sum of the bond, and that to the extent he makes such proof, and no further, is any deduction to be made from the whole penalty, except where the ad damnum in the plaintiff’s writ is less than the penalty ; and that, in such case, he is entitled to the amount of the ad damnum. Is this a correct view of the matter ? Does the smallest possible breach of the condition of a penal bond authorize a recovery of the whole penalty, if the defendant does not show, by evidence on his part, that the real damage or just claim of the plaintiff is for a smaller sum ? We think the plaintiff’s counsel takes an erroneous view of the matter. It is indeed true, that by the Rev. Sts. c. 100, § 8, it is provided, that where any breach of a penal bond is confessed or established, by a verdict or otherwise, “judgment shall be entered for the penal sum.” But it is to be remarked, that this is a judgment sui generis. Ordinarily, upon the rendition of a judgment in favor of a plaintiff, an execution goes of course for the amount of such judgment; but not so in a case like the present. For the statute expressly limits the effect of the judgment in such a case ; directing indeed a judgment, but awarding no process to enforce payment of such judgment, and authorizing the issuing of an execution for such sum only as is due in equity and good conscience. Rev. Sts. c. 100, § 9. The judgment, therefore, already obtained by the plaintiff upon showing a mere breach of the bond, is entirely insufficient as the foundation for an execution to issue in his favor; and if he would render his judgment an effectual one, capable of being enforced at law by a writ of execution, he must have the amount, for which such execution is to issue, settled by a decision fixing the amount due in equity and good conscience.
It was further urged on the part of the plaintiff, that however the general rule, applicable to cases of judgments upon penal bonds, might be, yet, from the peculiar nature of the condition of this bond, the proof in the case must wholly proceed from the defendants. This is said to be so, because the evidence is said to be found in the books and papers in the possession of Moore. This only presents the case that *126frequently occurs, where the evidence is drawn from the adverse party. That may be effected by a bill of discovery, and it may also be competent for the auditor to receive secondary evidence, and to draw all reasonable inferences against the defendants, from Moore’s refusal to produce his books and papers, after due notice and request so to do.
Let the matter be recommitted to the auditor, for a further hearing and report.