#### Ward and Ellzey v. the Fairfax Justices.

Thursday, November 16th, 1815.

i. Administration Bonds — Suit on — Assignment of Breaches.* — In a suit on an administration bond, if no breach of the condition of the bond be stated in the declaration, or by an assignment of breaches in some other part of the record, a judgment upon it is erroneous, and must be reversed. (1)

A suit was brought in the Superior Court of law for Fairfax county, against Mary Ward and Thomazin Fllzey, by William Gunnell and others, styled in the writ and declaration Justices of Fairfax County Court. On the writ the following words were endorsed: “For debt due by breach of administration bond given for the faithful administration of John Ward’s estate. N. Herbt. p. q. Suit brought at the relation of Fowler’s administrators. Wm. Moss Cl.” No condition, or breach of the condition of the bond, was set forth in the declaration, which was drawn in the usual form, as on a bond for the payment of money. An office judgment, by default, was entered, and/ writ of enquiry executed. The jury found a verdict for the same quantum of damages as the penalty of the bond amounted to; and judgment was entered accordingly ; to which the defendants obtained a writ of supersedeas.

Nicholas for the plaintiffs in error.

The writ of enquiry in this case having been executed, in consequence of an office judgment, the writ and its endorsements are part of the record; and from them it appears, that the suit was, upon an administration bond, for a devastavit, or some breach of the condition thereof: yet no breach is assigned; no devastavit alleged; and the administratrix is compelled to pay the penalty of the bond, without being convicted of any delinquency. The suit, too, is brought in the name of the Justices, which could not be supported by any but an official bond. The circumstances, that á writ of enquiry was awarded, also proves that it was not a common bond, but one with a collateral condition, which made an assignment of breaches indispensible : "for, in the act of assembly, the proper mode of proceeding on such bonds is pointed out ;(a) and, it appears, the plaintiff ought to set out the breaches ; concerning which the jury are to enquire, assessing such damages as the plaintiff has sustained by each.

No counsel appeared on the other side.

*

Official Bond — Suit on — Assignment of Breaches.— The assignment of breaches is the essence of the action on a sheriff’s bond. Com. v. Fry, 4 *W.*Va. 727, citing principal case. There are two modes of declaring upon a bond with a collateral condition; one by declaring upon it as a single bill without noticing the condition, in which case, the defendant craves oyer of the condition and pleads performance, and the plaintiff replies by assigning breaches; the other is to set out the condition in the declaration and assign the breaches in it. Reynolds v. Hurst, 18 W. Va. 650, citing principal case; Nadenbush v. Lane. 4 Rand. 413; Green v. Bailey, 5 Munf. 246. See further, monographic *note*on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.

(1)

 Note. The assignment of breaches may be made in the replication, or if the judgment be on a demurrer, or by confession, or nihil dicit, by a special and distinct assignment. See Rev. Code, 1st vol. p. ill, ch. 76, sect. 21. — Note in Original Edition,

(a)

 Rev. Code, 1st vol. p. 110, ch. 76, sect. 21.

Friday, November 17th, 1815, the president pronounced the court’s opinion, as follows :

It appearing, by the record, that this suit was instituted on an administration bond ; the court is of opinion, that the judgment is erroneous, in as much as there are no breaches of the condition of the bond stated in the declaration, or in any other part of the record; and, (without deciding on any other error,) the judgment is reversed with costs, and all the proceedings subsequent to the declaration set aside, and the cause remanded to the Superior Court of law of the county of Fairfax, for other proceedings to be had therein.