The facts contained in the replication are well pleaded, and form a sufficient answer to the special plea. The release was notgiven upon any consideration from the plaintiff below, but for the special purpose of obtaining redress in Chancery. As the release was not sealed in conformity with the statute, it could not have had any influence upon the rights of the plaintiff to which his judgment entitled him: the complainant could not have derived any advantage from it; and by dismissing his bill he abandoned the attempt. Clark, therefore, is not barred by such a release from prosecuting this writ of error.
We will next proceed to consider the case upon the assignment of errors and joinder. By the common law, the obligor was bound to pay the whole penalty of the bond, if he failed to comply with the condition at the time specified. As a remedy for this evil, the statute of 8 and 9 Will. 3., was enacted. We have a similar statute, which points out the practice to be pursued in cases like the one under consideration. The opinion of the Court, upon the demurrer, in favour of the plaintiff below, is not called in question; but in immediately rendering an absolute judgment for the penalty of the bond and interest, they committed an error. This was a penal bond conditioned for the performance of covenants. In such cases, when the plaintiff below succeeds on demurrer, the formal entry of final judgment *76ought to be stayed, until damages are assessed by a jury upon the breaches assigned according to the statute, and the assessment is entered of record. Judgment is then rendered for.the penalty of the bond, and the costs of the suit; and the assessment regulates the sum to be levied on the execution. The judgment for the penalty remains as a security for further breaches (3).
Nelson, for the plaintiffs. Dewey, for the defendant. Holman, J., was absent in consequence of indisposition. Per Curiam.The judgment is reversed, and the proceed» ings up to the overruling of the demurrer are set aside, with costs. Cause remanded for further proceedings.
To be relieved from the penalty, by the payment of what was justly due, the party, prior to the 8 and 9 Will. 3, had to resort to Chancery, The statute remedies that inconvenience, and permits no other recovery at law, than the damages which a jury may assess, for the breaches of covenant assigned and proved, with costs, Although the statute is, that the plaintiff may assign, &c., the decisions have been uniform that he has no choice, but must do so in all cases within the aot. Drage v. Brand, 2 Wils. 377. — Hardy v. Bern, 5 T. R. 636. — Roles v. Rosewell, ibid. 538.— Walcot v. Goulding, 8 T. R. 126. — . Welch v. Ireland, 6 East, 613. The few cases to which the statute has been Ibeld not to apply, are bonds for the payment of a sum of money in gross, 2 Will. Saund. 187, note 2; — replevin bonds, where goods are distrained, Middleton v, Bryan, 3 Maule and Selw. 155; — bail bonds, Moody v. Pheasant, 2 Bos. and Pull, 446; — and bonds of petitioning creditors, in oases of bankruptcy, Smilhey v. Edmonson, 3 East, 22, The reason the statute does not apply to bail and replevin bonds, is,-that the Court, in the former by stat. of 4 Anne, and in the latter by 11 Geo. 2., can afford to the party the necessary relief. Middleton v. Bryan, supra. It is held not to apply to a petitioning creditor’s bond, because by stat. 5 Geo. 2., the chancellor there assesses the damages. Smilhey v, Edmonson, supra. It has been decided that the statute extends to annuity bonds, Walcot v. Goulding, 8 T. R. 126; — and to bonds for the payment of money by instalments. Willoughby v. Swinton, 6 East, 550. Vide Ind. Stat. 1817, p. 36, 37, and 1823, p. 293 — the same in substance with 8 and, 9 Will, 3. Fot the forms of proceeding under the statute, vide Appendix.