CASES IN THE COURTS OF QUEEN'S BENCH, COMMON PLEAS, AND Exchequer of Pleas. T. T. 1845. Queen's Bench. STRATTON v. CODD. (Queen's Bench.) MACDONOGH, with whom was Hamilton Smythe, moved that the capias ad satisfaciendum issued in this case at the suit of the plaintiff be set aside, and that the defendant be discharged from custody, on the ground that this writ had been irregularly issued upon a judgment, without an entry on the record of any suggestion of breaches, or of any breach of the condition expressed in the bond on which such judgment was obtained. The bond was executed to the plaintiff as treasurer of the county of Louth, with a condition in the following words :- "Now the con"dition of the foregoing obligation is such, that if the above bounden John Codd, one of the high constables of the barony of "and shall well and faithfully levy and collect all such sums as "shall be presented by the grand jury of said county at this Assizes, 46 do 'or such part thereof as is due on, and ought to be levied off the said "barony, and the same so levied do pay and hand over unto James "Stratton or his successors, three days before next Assizes, then this "obligation to be void and of no effect." With this bond a warrant of attorney, containing a release of errors, was given for confessing judgment, and judgment was entered thereon. The affidavit made by the defendant in support of this motion stated that he had been appointed collector of grand jury cess for the county of Louth, and May 29. A judgment entered on a bond, with warrant of attroney, con taining a release of errors, which bond was conditioned to levy and collect all such sums as should be pre sented by the grand jury of a county, comes within the provisions of the 9 W. 3, c. 10, s. 8, and it is necessary that a suggestion of breaches be entered before execution issues. (PERRIN, J., dissentiente.) STRATTON T. T. 1845. that he executed the usual bond with warrant of attorney for conQueen's Bench. fessing judgment thereon to the plaintiff as treasurer of the county. That by warrants of the treasurer he was called on to collect certain sums therein mentioned, amounting in the whole to £1362, and that he had collected a large portion of this sum, but was unable to collect the remainder, amounting to £114, for which he had been arrested. V. CODD. Macdonogh, in support of the motion. The case of Gorman v. Hinks (a), which will be relied on for the plaintiff, does not rule this case; that was a bond given for payment of a sum ascertained; here the condition of the bond means that the party will duly account; and the case of Le Blanc v. Meredith, mentioned in the note to Gorman v. Hinks, as decided by the Court of Common Pleas, was subsequently overruled: Nolder v. Walsh (b). The Courts in this country were always of opinion that a suggestion of breaches ought to be entered, until that case of Gorman v. Hinks, which followed the English cases upon this subject; but the Court of Common Pleas now follow the practice of the Court of Exchequer in this country, which has always required a suggestion of breaches to be entered: Dawson v. Eyre (c). The case of Burke v. The Kingstown Railway Company (d) shows that the English authorities are not applicable here; and Lord Downes, in Green v. Shiel (e), says (speaking of the English cases) "In none of them is "the decision rested upon any other ground than this, that a warrant "is not one of the instruments specified in the English Act.”[PERRIN, J. I apprehend that the Courts in England have held that the statute does not apply to such a case, not because the party is to have execution against him for the full amount, but because the Court has the power of giving equitable relief; that was the principle upon which Gorman v. Hinks was decided.] Joy, with whom was Holmes, contra. Treating this merely in an equitable point of view, the defendant is not entitled to his discharge. Where there is a warrant of attorney with a release of errors, the statute does not apply; that is the result of every case except the one in the Common Pleas. The statute was intended only to apply to a case where there was a doubt as to the sum the party was liable to pay; but here there is no doubt what (¿) Smythe, 77. (a) Batty, 527. (c) Batty, 532, n. (d) 3 Law Rec. N. S. 24. (e) J. & B. 214, n. ever; he is to pay over such sums as shall be presented by the grand jury. He has made himself responsible to collect the sum; the warrants of the treasurer required him, and no disability can relieve him from that responsibility. The words of the Irish Act are nil dicit, non sum informatus, cognovit actionem, or the like; these last words cannot be held to include a warrant of attorney with a release of errors: Shaw v. The Marquis of Worcester (a); Kennedy v. Stubbs (b); Austerbury v. Morgan (c); Lush. Prac. 709; Tilby v. Best (d); Leveridge v. Forty (e); Anonymous (f); Cox v. Rodbard (g). H. Smythe, in reply, cited Bindon v. O'Dell (h). T. T. 1845. Queen's Bench. STRATTON ข. CODD. Cur. ad. vult. PERRIN, J. In this case I have the misfortune to differ in opinion with the rest of my Brethren. This is an application to set aside an execution for irregularity. The execution was issued on a judgment entered upon a bond with warrant of attorney to confess judgment thereon, under the 6 & 7 W. 4, c. 116, s. 148. The bond was executed by a collector of grand jury cess, and its condition was, that he should pay over to the treasurer of the county all such sums of money as should be presented by the grand jury by virtue of the treasurer's warrant for that purpose. The affidavit on which this motion is grounded states the same in substance. The question then is, whether this execution be regular or not? The ground of irregularity alleged is, that there is no suggestion of breaches under 9 W. 3, c. 10, s. 8. That section recites, "Whereas, "by the law as it now stands, if any action or suit be commenced, or "brought upon any bond or other penal sum, for performance of "covenants or other agreements in any deed or indenture, the party "that brings the same can assign only one breach of covenant, "although there are in truth several breaches committed, of which "the party plaintiff in such action can have no benefit or reparation, "notwithstanding that he is really damnified by reason thereof." It June 7. (d) 16 East, 163. (f) 2 Law Rec. O. S. 479. (h) 1 Hay, & J. 366, n. (e) 1 M. & Sel. 706. T. T. 1845. then enacts, V. "That in all actions which shall be commenced, &c., Queen's Bench. "if it shall happen that the defendant or defendants shall not STRATTON "plead to the issue, but judgment shall be given against him or "them for the plaintiff or plaintiffs upon demurrer, or by nihil "dicit, non sum informatus, cognovit actionem, or the like, then, "and in such cases it shall be lawful for the plaintiff to suggest "breaches," &c. CODD. That statute plainly contemplates the case of an adverse suit, manifestly pointing to an interlocutory judgment in the progress of the suit, whether by default, nil dicit, or otherwise. It has been held to be imperative where it applies; and to extend to cases of payment of an annuity, or payment of a debt by instalments, and to account. for monies received. No doubt, if the judgment had been obtained on demurrer, or cognovit actionem, &c., breaches must be suggested. The distinction between cases of judgments obtained by confession, and judgments obtained in an adverse suit, is recognised in several instances; and a remarkable one is with regard to assignments of judgments under the statute, in which case one class has been held assignable, the other not. In the case of O'Callaghan v. Marchioness of Thomond (a), it was held, that the Irish statutes 9 G. 2, and 25 G. 2, which permit conusees of judgments to assign them, and assignees to sue in their own names, are confined to judgments upon cognovits, which is not a stronger case than the present. There are several authorities in England to establish the construction given to the English Act, namely, that it does not apply to a security given by bond and warrant of attorney, and a judgment entered thereon, whether upon a bond and mutuatus, as is the course in England, or upon a bond and warrant, as in Ireland: Austerbury v. Morgan. In Cox v. Rodbard, on a motion to set aside a capias issued without a suggestion on a judgment on a warrant to pay money by instalments, Mansfield, C. J., says, "The argument would "extend to every warrant of attorney where the payment is to be "made by instalments, so that it must be decided by a jury whether "such instalments have been paid or not. But this case is not "within the mischief intended to be remedied by the Act, which was "made to preclude the necessity of going into a Court of Equity. "The Common Law Courts have ever exercised an equitable juris"diction over their own judgments and process," and the rule was discharged; and in Kinnersley v. Mussen (b) a like order was made. The next case is Shaw v. The Marquis of Worcester. In that case |