SPRAGUE US. BAKER.

The ground of this objection has been frequently held valid by this Court.-2 Mass. Rep. 455, Bickford vs. Page.-12 Mass. Rep. 304, Wyman vs. Ballard. The same point was determined

in the case of Lewis vs. Ridge, Cro. Eliz. 863, and by a [* 589] majority of the court in the case of Greenby * & Al. vs. Wilcocks, 2 Johns. 1. A similar doctrine is laid down by Comyns, Dig. Covenant, B. 3. It, however, depends upon a rule of the common law, for the avoidance of maintenance; the good sense of which judge Buller, in the case of Master vs. Millar, 4 D. & E. 340, thought very questionable. He even pronounces it not only a quaint maxim, but a bad one; which he says the courts of equity, from the earliest times, thought too absurd for them to adopt. However this may be, it is a rule of the common law, and must be held binding. But we are not disposed to apply it to cases not coming within the reason of the rule; and we are inclined to the opinion, that the present is a case of that description.

There was a breach of the covenant, it is true, before the assignment; but for this breach Hitchings could only have recovered nominal damages. The actual damages accrued after the assignment. They were sustained by the plaintiff, and not by Hitchings; who has no interest in them, except what arises from his covenants with the plaintiff. But suppose there had been no such covenants, or suppose Hitchings to be insolvent; then, unless the plaintiff can maintain the present action, he is without remedy. This certainly would not be right; nor do I think that such is the law. It seems to me that, if the present case required a decision upon this point, we might be well warranted in saying, that the covenant against encumbrances, notwithstanding the breach, passed to the assignee ; so as to entitle him to an action, for any damages he might sustain after the assignment; because the breach continued, and the ground of damages has been materially enlarged since that time; so that the plaintiff's title does not depend upon the assignment of a mere chose in action. He is principally interested in the covenant; and those covenants run with the land, in which the owner is solely or principally interested, and which are necessary for the maintenance of his rights. Covenant lies by an assignee, on everv covenant which concerns the land.-Com. Dig. Covenant, B. 3. -Mo. 242 (2).

[ * 590 ]

*But it is unnecessary to give a decided opinion upon this point; as we have no doubt that the plaintiff is en

(2) [Vide Kingdon vs. Nottle, 1 M. & S. 355.—King vs. Jones, 1 Marsh. 107.—5 Taunt. 418.-ED.]

SPRAGUE vs. Baker.

titled to judgment upon the other covenant. And in the first place, it is observable that the words of the covenant are, 66 to warrant and defend [the premises] against the lawful claims and demands of all persons;" and it is agreed that, before and at the time of the grant to Hitchings, there was a claim on the land, by way of mortgage; that after the assignment the mortgagee demanded possession of the plaintiff, or the payment of the debt due on the mortgage, and that he, to avoid a suit, with which he was threatened, and against which he could not defend himself, paid the sum due by the mortgage. Against this claim, therefore, Baker has not defended him, according to the express words of the covenant; and it would seem, that there could be no question as to the breach, unless these words have some technical meaning, different from their common and obvious import.

But it has been insisted, by the counsel for the defendant, that covenants for quiet enjoyment, and a general warranty, extend only to cases of eviction. This proposition is, however, too limited. An ouster or expulsion is equivalent to an eviction by legal process; as has been frequently determined.-3 Saund. 181, b. note 10.-4 D. & E. 617, Foster vs. Pierson.-4 Mass. Rep. 352, Hamilton vs. Cutts & Al. And so is any lawful disturbance or interruption, by a stranger having a paramount title. But some particular act must be shown, by which the plaintiff is interrupted; for otherwise the breach of a covenant for quiet enjoyment is not well assigned.-3 Saund. ubi supra.-Comyn's Rep. 228.-8 Co. 181, Fraunces's case.-If the plaintiff, therefore, had voluntarily dis charged the mortgage, without any previous demand made, his only remedy would have been on the covenant against encumbrances.

But a demand having been made, the plaintiff might have yielded to the dispossession; and such an ouster would have entitled him to his remedy on the covenant of *warranty; [ * 591 ] as was decided in Hamilton vs. Cutts & Al. "There is no necessity," says Parsons, C. J., in that case," for him" [the plaintiff]"to involve himself in a lawsuit, to defend himself against a title, which he is satisfied must ultimately prevail." If the plaintiff, in the case at bar, had formally yielded possession, and immediately after had extinguished or purchased in the mortgage, he might have recovered against the defendant, on the authority of Hamilton vs. Cutts & Al. There is nothing to distinguish the two cases, but a point of form, which does not affect the merits of the question. The plaintiff has been disturbed in the enjoyment of his possession, by a lawful and paramount claim; and he has been compelled to purchase in another title, for his own security; which we think

SPRAGUE US. BAKER.

very clearly, has been a lawful interruption, and a breach of the covenant for quiet enjoyment (3).

According to the agreement of the parties, judgment must be rendered for the plaintiff.

Defendant defaulted.

(3) [Quære de hoc. Is this equivalent to an eviction?-ED.]

STEPHEN BEAN versus PHINEHAS PARKER AND BENJAMIN FRENCH.

Upon a Scire Facias against bail, they shall not be permitted to deny the arrest of the principal.

Nor is it any defence in such suit, to deny that there is any record of the defendants' having become bail.

A submission, by a rule of court, of the original action, and of all demands between the parties, to referees, operates the discharge of the bail; although judgment may in fact be rendered against the defendant for a less sum, than if no such submission had been had.

Bail are not liable, unless the bail bond be executed by the principal.

THIS was a Scire Facias against the two defendants, as sureties upon a bail bond, alleged to have been made by them upon the arrest of one Aiken, in a suit brought by the plaintiff against Gilmore & Aiken, partners in trade. The declaration alleges a judgment of this Court, recovered against the said Gilmore & Aiken ; an execution issued thereon, with non est inventus as to Aiken ; and that the defendants became bail for him, who, it is alleged, was arrested on the original writ; and all this is averred to appear of

record.

[ * 592 ] * Eight pleas in bar of execution were made by the defendants; on the first, second and sixth of which issues were joined to the country. In one of them the defendants had oyer of the bail bond; which appears to be in the usual form, reciting the arrest of Aiken, and conditioned for his appearance, and abiding the final judgment in the suit. But the bond was executed only by Parker and French, the sureties, and not by Aiken, the principal debtor; although in the body of it, it purports to have been executed by the three, and a seal was affixed, with a space opposite to it, for Aiken's signature.

The third and fourth pleas substantially deny the arrest of Aiken, setting forth his absence from the commonwealth, at the

BEAN VS. PARKER & AL.

time of the pretended service of the writ, and for a long time afterwards.

The fifth plea denies that there is a record of the defendants' having become bail, as set forth in the writ; or that there is any record of such obligation as is therein set forth.

The seventh and eighth pleas allege that after entry of the original action in Court, there being then another action pending in favor of Gilmore & Aiken against the plaintiff Bean, the parties entered into a rule of court, whereby they submitted the two actions, and all demands between the parties, to the determination of certain referees; and that the sum, for which the judgment was rendered, was the sum reported by said referees as the balance of all demands between the parties; and that this is the same sum for which the execution issued, which was the foundation of the present suit against the defendants.

To the third and fourth pleas the plaintiff demurs specially, showing for cause, that the defendants are estopped by the bond from denying the arrest of Aiken; that fact being recited in the condition of the bond; also, that these pleas are double.

To the fifth plea there is also a demurrer and joinder; alleging the plea to be double, and otherwise defective in form.

*The replication to the seventh and eighth pleas aver [* 593 ] substantially, that the sum awarded by the referees, and for which judgment was rendered, was part of the same sum demanded in the suit, on which the defendants became bail; the referees having only deducted from the plaintiff's claim in that suit, part of his cross demand, which could not have been filed in set-off, or given in evidence on the trial of the action.

To this replication there is also a demurrer and joinder.

Rand, for the plaintiff. The third plea in bar is bad, inasmuch as it amounts to a denial of the return of the officer; which is matter of record in the suit, upon which this process is grounded (1). The return is stated in the declaration, and admitted in the plea; and oyer is not necessary, and cannot be had of a record (2). The bail cannot plead any matter, which the principal could not allege in pleading; and, therefore, the return, as to them, is conclusive (3). This plea is also bad, because it traverses a material fact stated and admitted in the condition of the bail bond (4), and the bond being set forth on oyer, the estoppel may be relied on upon demurrer, without pleading it.

(1) Com. Dig. Retorn G.-4 Mass. Rep. 478.

(2) Chitty, 415.

(3) 9 Mass. Rep. 99.-10 Mass. Rep. 313.-11 Mass. Rep. 165.-15 Mass. Rep. 82, 230. (4) Willes, 9, Shelly vs. Wright.-2 New Rep. 453.

BEAN VS. PARKER & AL.

The bond set forth appears to be a good bail bond. It is sealed with the seal of the principal, whose name is in the bond, containing a statement that it is sealed with his seal. It must be intended that it was duly executed by him; and the bail are estopped to deny it. Signing is not essential to a deed; and this bond is not therefore defective, because it wants the signature of the principal (5); and one might seal and deliver for all, with their assent (6); nor is it material that any peculiar seal be used (7). The bail will not be permitted, even on issue to the country, to give evidence of its not being executed by the principal; these circumstances

amounting to an estoppel in evidence (8). Neither the [ * 594 ] arrest, nor the place of the arrest, *are traversable (9); and bail may be taken before the writ is delivered to the

sheriff (10).

There is nothing wanting in the bond in this case, as to form or substance, even if it should be admitted that the principal never executed it (11). Chief Baron Comyns says, "The principal need not be bound with his bail "(12). The sheriff in England may put in bail for the principal against his consent (13). So in the civil law, one may become a surety for another, without the order of the person, for whom he binds himself (14). "Fidejubere pro alio potest quisque, etiamsi promissor ignorat (15). The bond was voluntary on the part of the sureties, and therefore binding (16).

In England, in the case of bail to the sheriff, a bond without a principal has been held to be good (17); and the precedents in modern books of pleading show the law to be so (18). This is not a bond taken colore officii, nor for ease and favor; for in the case supposed of no arrest or constraint of the principal, or obligation imposed upon him, the statute of 23 Hen. VI. c. 9, does not apply (19); and as, in this state, the bond is taken originally for the use of the plaintiff, it may well be doubted, whether, in any case, the statute can be reasonably applied here (20).

The defendants' fourth plea in bar is bad for the same reason as the third; that the arrest is not traversable, and need not be al

(5) Phillips on Evid. 358.-17 Ves. jun. 454, 457.-4 Taunt. 214. (6) 4 D. & E. 314. (7) Perk. c. 2, § 134.

(8) 2 Preston's Abstract, 206.

(9) Imp. Sher. 77, ed. 1817.-Keb. 554.-Sid. 96.-Strange, 444, 643.-Fort. 264.Com. Dig. Bail, K. 5.—2 Saund. 596, note 3.

(10) 7 D. & É. 375.-Barnes, 81, 83.

(11) 2 B. & P. 334, 443.-Carth. 121.-12 Mass. Rep. 137.-10 Mass. Rep. 442.—7 Taunt. 28.

(12) Com. Dig. Bail, G. 2.

(13) Peake's cases, 169.-2 B. & P. 35.-2 Strange, 876.-Carth. 121.

(14) Domat. lib. 3, tit. 4, § 1.

(16) 2 Strange, 744.-2 L. Raym. (17) 8 Co. 99 b.

(19) 10 Co. 99 b.

(15) Lib. 30. ff. de fide jussu. 1459.-1 Burr. 330.-2 Marsh. 280.

(18) 3 Morg. Vade Mecum, 391.-3 Chitty, 241 (20) 2 Mass. Rep. 202.