VOLUME III.
ENGLAND.
error, from k. b.
Johnes,—Plaintiff (in Error); Johnes,—Defendant (in Error) [Nov. 21, 1814].
[In action of debt on bond, with penalty for performance of covenants, breaches under stat. 8. 9 Gul. 3. s. 8. may be assigned in the replication.]
[And, on demurrer, interlocutory judgment may be given to the extent that it appears to the court that the replication is sufficient, and that Plt. ought to recover his debt and damages for detention, and final judgment may be stayed till after award and execution of the writ of inquiry.]
[And where the interlocutory judgment was in E. T., and then, as the inquisition could not, according to the usual mode of holding the assizes, be taken before the justices of assize pursuant to stat. till after T. T., a day was given to the parties in M. T., passing over T. T. altogether, without continuance—held that, as in the due execution of the object of the stat. the giving a day in T. T. would have [2] been nugatory, the reason for the continuance failed, and the omission was no error.]
Error upon a judgment in K. B. in an action of debt on bond. The declaration was in the common form of debt on bond, and Deft. on Oyer set out the condition of the bond, (which was for quiet enjoyment of certain premises purchased by Plt., John Johnes, from Deft. Thomas Johnes, particularly against the claims of Mrs. Eliz. Johnes, Deft.'s mother,) and pleaded that Plt. had quietly enjoyed. Plt. in the replication stated that E. Johnes had filed her bill in Chancery against him setting forth her title under her marriage settlement as tenant for life, to part of the premises which had been sold by her son Thomas Johnes, to John Johnes, who had, without her knowledge or consent, been let into possession; and also alleging that an agreement had been entered into between her and John Johnes, for a lease to the latter, at a given rent, of that part of the premises claimed by her; and praying an account, an injunction to stay waste, and a specific performance of the agreement; that the Master of the Rolls had decreed the account, etc. and ordered a reference to the Master to inquire whether E. J. had a title to grant a lease; and, if she had, then he decreed a spec. per. but reserved the consideration of the costs of the inquiry as to the title and spec. per. till after the Master should have made his report, and from the subsequent proceedings it remained doubtful whether any costs were given on this last [3] ground. The replication then stated as the result of the suit in Chancery, and an action by E. Johnes in K. B. for damages for use and occupation, etc. that he was damnified to the amount of £6000. To this replication Deft. demurred, and after joinder in demurrer, (no counsel appearing to argue it for Deft.) the Court in E. T. 1813, gave judgment so far as that it appeared to the Court that the replication
