Bishop v. Wild's Adm'r.

1 Del. 87

• Court: Superior Court of Delaware
• Decided: July 5, 1832
• Status: Published

Opinion

Mr. Justice Black delivered the opinion of the court.

Black, J.

—“In August, 1808, Lewis Williams was appointed by the Orphans’ Court of Kent county guardian of William S. Bishop, the plff. in this action. He gave bond in the sum of $3000, with the usual condition, in which John Wilds, Maskline Clark and James Spear were his sureties.

This action is to recover from the administrator of John Wilds the balance due from Lewis Williams the guardian, which the guardian owed at his death to his ward. There is no controversy as to the amount of that balance, the parties having agreed upon the sum for which judgment shall be entered, provided the court should be with the plff. on the questions of law presented for their decision.

The plff. attained the age of twenty-one on the 29th day of August, 1824. On the 8th day of August, 1827, he instituted an action against the above deft, on the above guardian bond, in the Supreme Court for Kent county, which was within three years after his coming of age. He obtained judgment in this action at the March Term, 1830, which judgment was reversed by the late High Court of Errors and Appeals, on a writ of error at the June Term, 1831. The present action was brought on the-day of July, 1831, and is upon the same guardian bond upon which the former suit was instituted.

The pleadings are drawn out at length and are brought to a close by a demurrer on the part of the deft., to the surrejoinder of the plff., in which demurrer there is a joinder by the plff. The great and leading question to be decided by the court is whether the plff’s. action on this guardian bond is barred by any statute of limitation of this state.

It is contended on the part of the deft., that inasmuch as the present action was not brought within three years after the plff. came of age, he is barred by the 14th section of the act of 1766, (1 Del. L. 424.) To this the plff. answers that he did commence an action on this bond within three years after he attained twenty-one, which action was pending in the Supreme Court on the 29th of January, 1829, when the present act of limitation passed; that in the latter action he obtained a judgment in March, 1830, which judgment upon a writ of error was reversed by the late High Court of Errors and Appeals in June, 1831; and that the present action was brought upon the same bond within a year after that reversal, and that according to the provision of the 10th section of the act of 1829, his present action is not barred. The deft, in reply to this contends first, that the act of 1829, (7 Del. Laws, 267,) and more particularly the 10th section of it, does not apply to suits brought prior to its passage; and secondly, that that act cannot apply to, or operate upon, guardian bonds executed before it was passed, because it gives a right to renew actions on such bonds, which did not exist under our laws when these bonds were given, and that the granting such a right in •relation to such bonds then and antecedently in existence would conflict with that part of the 10th section of the 1st article of the constitution of the U. States, which restricts the states from passing any law impairing the obligation of contracts.

These are substantially the positions presented for consideration.

The 14th section of the act of 1766, provides “That all actions upon administration or guardian bonds hereafter executed, shall be commenced within six years after the passing the said bonds, and all actions to be commenced on any such bonds already given, shall be brought within six years after the publication of this act, and not, after,” saving the right of those who may be under twenty-one years of age, femes covert, &c. &c., of bringing their actions within three years after the disability is removed.

The act of 1829, provides “That no action shall be brought upon any guardian bond either against the principal or sureties, after the expiration of three years from the determination or ceasing of the guardianship.” A saving of three years to infants and some others, is also provided by this act, after the removal of the disability. This act is by its terms extended to all the causes of action enumerated in it, “as well those that have been taken, executed, or settled heretofore, as those that shall betaken, executed, or settled hereafter.”

The 13th or repealing section of the act.of 1829, declares that the 14th section of the act of 1766, together with various other sections and acts shall be and are thereby repealed from and after the first day of September, 1829, “except so far as shall concern any action, cause of action or matter which now is or on or before the first day of September next, shall be barred according to the form or effect of the aforesaid act or sections, or either of them; and to any action or proceeding upon any recognizance, bond, cause of action, account or matter, which action or proceeding now is or on or before the first day of September next, shall be according to the form and effect of said acts or sections, or either of them barred, shall remain a bar and may be pleaded, and shall avail in the same manner and as fully and effectually as if this act had not been passed.”

This question then arises on a consideration of the foregoing sections. Was the action or right of action of William S. Bishop on this bond barred on September 1st, 1829, “according to the form and effect” of the 14th section of the act of 1766? If it was, that act avails and must continue a bar.

The plff. attained the age of twenty-one on the 29th day of August, 1824. On the 8th day of August, 1827, (in less than three years after he came of age,) he brought an action on this bond against the present defendant in the Supreme Court. On the 29th day of January, 1829, the day on which our present act of limitation was passed, and also on the first day of September, in the same year when the repealing clause in it took effect, that action was pending in the- Supreme Court, and undecided. On the 8th day of August, 1827, the day on which the writ was issued, the plff’s. action on this bond was not barred, as three years had not elapsed after his attaining age, and as that suit remained in the Supreme" Court undecided on September 1, 1829, the plff’s. action or cause of action was not barred on that day. His action had been commenced within three years, and according to the “form and effect” of the act of 1766, was not barred. It was still in court undecided on the 1st of September, 1829. Then if his action or cause of action was not barred on that day, the 14th section of the act of 1766 is no bar to his action, inasmuch as that section stands repealed by the act of 1829, except so far as concerns any action or cause of action which by the form, and effect of that section was barred on the first day of September, 1829. To such actions and causes of action and to such only, can the 14th section, of the act of 1766 be.held a bar. Its principle of operation or existence is retained for those cases alone, in relation to which it was a bar on the 1st of September, 1829. As to all other cases it is extinct. If then you show that’ by that section the plff’s. action or cause of action was not barred, when that section was to stand repealed, then by the express terms of the repealing section in the act of 1829, the 14th section of the act of 1766 was as to such a case repealed, and could no longer operate upon it. The pleadings in this case show, and the fact is not controverted, that on tbe 1st day of September, 1829, an action was pending in the Supreme court between these same parties on this very guardian bond, which was not then barred by the 14th section of the act of 1766, because that action had been brought within the'time limited in the saving in that section.

The action therefore, of the plff. on this bond not having been barred on September 1, 1829, is not within the exception in the repealing clause of the act of 1829, and the 14th section of the act of 1766, as to his action or right of action is entirely repealed, and can no longer operate or apply to this bond.

The next question to be considered is whether the act of 1829, or the 10th section of that act can be applied to actions pending in court when that act was passed.

If such actions or causes of action were not barred on the 1st of September, 1829, and they are to be held as not within the act of 1829, because actions were pending when that act passed, then it would follow that to such actions or causes of action, there is no limitation by our statute. If they were not barred on September 1, 1829, according to the provisions of the limitation acts which were on that day to stand repealed, and are not within the act of 1829 which on that day was to go into full operation, and are not within the exception contained in the repealing clause of that act, where is there any act of limitation to bear upon them, or that can now be used as a bar to actions that were pending on 29th January, 1829, which were not barred on 1st September, 1829, and which may be again in consequence of a non pros, discontinuance or otherwise, brought by a renewed suit before this court. Is there any thing in the act of 1829 which expressly excludes pending actions from the., operation of this f Oth section? If there is not, then upon what principle or for what sufficient reason should they be excluded?

The design of our acts of limitation is to close our courts against those who sleep on their rights, and neglect to prosecute them in a reasonable time; this neglect is to be taken as evidence of the debt being paid or released. If, however, the party does not allow his claim to sleep, but prosecutes it within the time prescribed, this presumption does not arise; he may fail in his suit, but his conduct has rebutted the legal presumption. The general design of the legislature in enacting, the 10th section of the act of 1829, was to protect the rights of all those who had prosecuted their actions within the time'limited for bringing such actions, and upon a reversal of a judgment in any action, to give the party a right to renew it within a year from such reversal. The words are general and without exception, where the first action was not barred by that act at the time of bringing it. We think the present case is within the letter of the statute; but if we' should be mistaken in this, it is clearly within its spirit and equity.

Suppose on January 1, 1828, A. to have made a sale of goods to B. on the same day he also makes a sale of goods to C. On the 1st of January 1829, he brings suit for the price of the goods against B., and on the 1st of February or 2nd September, 1829, he brings suit against C. for the value of the goods sold him. In each case he obtains a judgment, which judgments are reversed in 1831. Three years have elapsed. According to the argument he may renew his action against C. because no suit was pending, when the act of 1829 was passed, but not against B.; because a suit was then pending. One claim stands barred and the other is free from all bar, although both accounts accrued on the same day. Where is the reason for such a distinction. If the law however, creates it, the court must yield to it, but the rule must appear to be clearly fixed to lead us to give effect to it, when we cannot perceive any good reason for the rule.

It will be observed that there are in the act no words expressly excluding from tne operation of the 10th section, pending actions. Their exclusion is a matter of argument from some of the provisions of the law. By comparing this act with former acts relating to the same matter, it is believed that aid as to its true construction may be obtained.

By comparing the 10th section of the act of 1829, with the British statute of limitation passed in the twenty-first year of the reign of James the first, chapter Id, and with our act of limitation passed in 1742, in the fifteenth year of George second, (1 Del. Laws 229,) it will be perceived that in the act of 1829, there is a change of phraseology, from what had been used in the acts referred 'to, touching the same subject matter, which it cannot be believed was accidental or undesigned, as but little if any doubt can be entertained that our statute, and also the British, must have been before the drafter of this 10th section; or in fact, that that section was prepared "from those two statutes.

The 3rd section of the statute of James provides, that all actions of trespass, replevin, detinue, of account and upon the case, &c. &c., which shall be sued or brought- at any time after the end of this pre sent session of Parliament, shall be sued within- years, &c. &c. The 4th section provides for the renewal of the suit in the, event of reversal or arrest of judgment, as was the design of the 10th section of our act of 1829. Its language is—if in any of the said actions or suits judgment be given for the plff., and the same be reversed by error, &c. &c., the plff. may commence a new action within a year. The right of renewing was thus confined to the said actions; to those actions enumerated and designated in the proceeding section, which were those actions which should be brought after the end of the session of that Parliament which enacted the law. Pending actions were therefore clealy excluded by the terms of the statute of James from this privilege of renewing within a year after reversal. It may not be amiss tó remark, that this section has in England received not a rigid or merely literal construction, but a liberal one; and that eases not within the words of the section, (as the termination of a suit by death or marriage,) have by an equitable construction of that section been held within it. The inclination of the courts in England has not been to circumscribe the operation of this section, but rather to enlarge its limits and to embrace within it those cases which equitably ought to be covered by it.

Should this court, in giving a construction for the first time to a section similar in its design, be inclined to adopt one less equitable and liberal than has been adopted in England unless they are plainly required by the law in question so to do?

In our own statute passed in 1742 (1 D. L. 229,) a feature similar to that in the statute of James is to be found.

The 2nd section provides that all actions of trespass, replevin, on the ease, &c. &c. “which shall be sued at any time after the publication of that act, shall be commenced within it, &c. ”

Section 3rd which follows, provides “that if in any of the said actions or suits judgment be given for the plff., and the same be reversed by error, &c.” “That in all such cases the plff. may commence a new action within a year.”

This act did not give the right of renewal within a year after reversal to actions pending at its passage, but confined this privilege to the said actions—that is, causes of action which should be sued after the publication of that act, and necessarily excluded all brought prior thereto.

Had the legislature of 1829 intended to have confined the 10th section of the act of limitation passed by them, to actions futurely to be brought, why not retain the phraseology of the act of James or that of our own statute of 1742. Can we suppose otherwise, than that they designed to vary the provision when they have in a very material point changed the phraseology? They do not use the words “if in any action to be brought after the publication of this act;” nor “if in any action hereafter to be brought;” nor “if in any of the said actions” judgment be rendered for the plff. and the same be reversed for error, &c., thus confining the section; to actions “to be brought” according to the language of the sections preceding, but they use'these comprehensive words “that if in any action, judgment shall be rendered for the plff. and the said judgment be after-wards reversed, &c., a new action may be brought upon the same cause of action at any time within a year after said reversal. ” Had it been their intention to confine this provision to suits thereafter to be brought and to exclude pending actions, why abandon those guards in language which had been used in previous acts to effect this very object. When we find them using the words “if in any action judgment be rendered,” are we to infer that they meant to say “if in any action hereafter to be brought” judgment be rendered, and this too when we find that they cautiously abstain from using those words, which had been used in the section they were repealing, and which words excluded from the operation of a similar section, pending actions. Such an inference in our judgment would be directly contrary to that which ought under these circumstances to be drawn.

It has been urged with much earnestness by one of the counsel for the deft., that the act of 1829 cannot be pleaded to actions brought before it passed, and that the words of the proviso at the close of the 10th section, that “this proviso shall not avail if the first action at the time of bringing it were barred by this act; but if this act were pleaded in the first action and verdict thereupon found for the plff., such verdict shall be conclusive evidence that the first action was not at the time of bringing it barred by this act,” show that future actions alone were intended to be embraced by this section.

In considering this section the repealing section must be lost sight of. Suits that were pending on 29th January 1829, if barred at all were barred by acts passed antecedent thereto, and those acts by the terms of the repealing clause, were continued as a bar and were pleadable as such. To all actions not barred on the 1st of September 1829, the act of 1829 is the only one that can be pleaded. True it cannot avail per se as a bar to actions pending at its passage; but for this reason. They were not barred by the previously existing acts which were then repealed. If they had been thus barred, such acts were continued a bar; the act of 1829 did not create but continued this bar and made it perpetual, might it not. then be argued with plausibility, that such actions were barred by the act of 1829, because that act continued that bar which had been fixed by antecedent acts.

The repealing clause makes perpetual the bar which existed according to the old acts on September 1st 1829. In relation to such demands therefore as were then barred, there could be no renewed actions, for that clause declared them forever debarred of a right of suit. A renewed action is therefore necessarily forbidden by this section as to all claims barred on September 1st 1829. The proviso in the 10th section then proceeds to exclude from a new action (not those cases which were barred by the former acts, as they were in fact excluded by the 13th section,) but those cases which were not barred on 1st September 1829, and which could alone be barred by the act ot 1829; and to prescribe what should be a conclusive rule of evidence, thatdhe first action was not barred. This rule is confined to those actions which were not barred on 1st of September 1829, and is to govern in all such cases. But no rule is prescribed as to what shall be evidence of a bar under the old acts on or prior to the 1st of September 1829. That is left to depend upon the terms of the old limitation acts and the proof in the particular case.

The language in the latter part of the proviso that the right given “shall not avail if the first action at the time of bringing it were barred by that act,” cannot according to our judgment be held as excluding from the operation of the 10th section pending actions, when you consider the comprehensive language used in it as contrasted with the guarded phraseology of the statute of James, and the act of 1742.

This proviso became necessary to guard against certain actions or causes of action standing revived by the language used in the first part of the section, which were in fact barred by that act. One provision of that section is that “if the plff. or deft, die after writ sued and before the deft’s, appearance, a new action may be brought at any time within a year after such death.” Now if an action had been brought on an account of more than three years standing, and the plff. and deft, died after writ sued and before appearance, a new action might be brought within the year, although by the 5th section the action was barred. To prevent such a conclusion, or the right to sue where the action was barred by other parts of that act—would seem to have been the design, in saying that such right to a new action should not exist if the claim was barred by that act. If that act barred the claim a right to renew the action was not given by the 10th section. If the former acts barred the claim, the bar was perpetuated in the repealing clause, and by that clause those acts could always be pleaded to an original or renewed action.

The plff’s. first action was brought in 1827 within three years after he came of age.. It remained in court on the 1st September 1829. He afterwards obtained judgment in that action—that judgment was reversed by the late High Court of Errors and Appeals in 1831, and the present suit instituted on the same cause of action in less than a year after that reversal. The plff’s. cause of action was not barred on September 1st 1829, according to the 14th section of the act of 1766, a suit having been brought in time and then pending; as to his claim then the 14th section of the act of 1766 is repealed. It is not barred by the act of 1829—the 10th section of which in our judgment embraces all actions, as well those then pending as those thereafter to be brought—because his action was renewed within the time, and on one of the events provided for in that section; he is therefore entitled to judgment for his debt unless the act of 1829 does as is contended for by the deft., violate that part of the 10th section of the first article of the constitution of the U. States, which restricts the several states from passing “any law impairing the obligation of contracts.”

When the guardian bond on Avhich this suit is founded was executed, suits upon such bonds were by the then laws of this state limited to six years after the passing of the bonds, with a saving of three years after they came of age to those under age.

The 3rd section of the act of 1742 heretofore referred to, giving a right to renew the action in certain cases did not embrace guardian bonds. In relation to such bonds therefore, there did not exist any provision for renewing an action upon it within a year after reversal or arrest of judgment, as was provided in the 10th section of the act of 1829, and Avhich section clearly embraced guardian bonds. This right thus granted to renew the action within the' year it is contended, is a violation of the obligation of the contract made by John Wilds with the plff., because the laws existing when he entered into the bond, did not give such a right.

On an examination of the various acts of limitation that have been from time to time passed by the legislature of this state, it does not appear to have been their impression that such laws were to operate only on those contracts that should thereafter be entered into—nor that an enlargement or diminution of the time for' bringing actions, would in relation to matters of contract or rights of action existing when such laws were passed, be a violation of this clause of the constitution of the U. States. An opinion directly the reverse seems to have been held.

Nor are we aware of any decision that would show that such a principle has been recognized by the courts of this state. These points are mentioned only as evidence that such has not been the view taken by the legislature, courts and bar of this state, as to the validity of such laws.

The counsel for the deft, have referred to the case of Sturges vs. Crowningshield, 4 Wheaton 122, and to the case of Ogden vs. Saunders, 12 Wheaton 213, to show the opinions held by the judges of the Supreme Court of the IT. States, in relation to this question. In those cases the validity of acts of limitation in reference to antecedent contracts, was not the point debated before or to be decided by the Supreme Court. The judges referred to acts of limitation to illustrate their arguments and as analogous to the question they were considering, and each assumed the principle to be what they supposed in such a case it would be, and reasoned upon that assumption. No little difference of opinion seems to have been entertained by the judges in those cases (particularly in the latter,) as to the nature, effect and validity of such laws, arising no doubt from the fact that this question had not been debated before them or considered by them with a view to a decision upon it.

In the case of Jackson vs. Lampshire, 3 Peters 280, the right of a state to pass registering and recording acts, and also acts of limitation, and to prescribe their effect is expressly recognized, and in Hawkins vs. Barney’s lessee, 5 Peters 467, where the question of constitutionality of an act of limitation of Kentucky was discussed, its validity was sustained. •

Does an act of limitation which may exist at the time a contract is made enter into or become a part of that .contract—or does it pertain to the remedy only?

A contract is an an agreement by which a party engages to do or abstain from- doing a particular thing:—The law binds him to perform his undertaking—-this is the obligation of his contract: The obligation of the contract has been styled “the chain of the law” which applies to and enforces performance or the payment of an equivalent for non performance. The contract is the act of the parties—the law imposes the obligation or duty of performance, but the remedy by which that performance is to be enforced or an equivalent in money obtained belongs to government and is granted on such terms and to such extent as to their discretion may seem proper.

Whether an act of limitation which takes away a creditor’s right to sue—or limits it to a less time than it was limited by the law existing when the contract was made impairs the obligation of his contract and is a violation of the constitution, is not the question presented to the court; and, according to our view if the case, is not one that it is necessary for us to decide. If it was we should have no difficulty on the point. The question before us is, according to our apprehension, a very different one—It is whether a law which enlarges the time for bringing a suit, and thus keeps the cause of action alive or in a condition to be sued upon for a longer period than it would have been by the law in force when the contract was entered into, is a law impairing the obligation of a contract?

Does the keeping the contract from annihilation—the preserving it in force when not against its terms or stipulations, import the same as impairing annulling or destroying it? To continue a contract and to impair or destroy it are matters essentially different. How can a law which gives life or action to a lifeless dead or ineffective contract be said to impair its obligation unless that death or ineffectiveness was produced by the terms of the contract?

In this case the contract and obligation of the obligors in this bond was that Williams should faithfully discharge his trust as guardian, and pay and deliver to the plff. all such sums of money and other estate as should come to his hands as guardian, after deducting the allowances that might be made by the register, and upon this event and on this alone, that obligation ííshould he void or else should be and remain in full force and virtue.” Performance of this engagement and performance alone according to the terms of the contract is to annul or satisfy it. This bond contains no stipulation that the obligors shall be released if they are not sued upon it within three or six or any other number of years. Time is not made a part of this contract—in relation to it there is no contract nor stipulation. In the absence of any contract on this point how can we say that the obligation of the defendant’s contract is impaired by a law which allows the plff. a further time to compel the defendant to execute his contract than was given by the law which was in force when the contract originated, when according to the terms of the contract performance alone was to discharge the defendant from this obligation.

The contract is one thing—that the legislature cannot alter—the remedy for a violation of the contract is another and may be altered, modified enlarged or limited according to the discretion of the legislature, who alone gives it. They may fix a period within which if no action be brought, their courts shall be closed, and establish as the rule for the government of their courts, that the effect of such acquiescence shall be evidence that the contract has been performed or satisfied. This presumption or evidence of performance is not a part of the contract and they may in their discretion change or alter it. How does a change of such a rule of presumption, or evidence of performance, which rule is created by the legislature and not by the parties, impair the obligation of the contract.

In this state the lands of a debtor (except under a mortgage) can-pot be sold by execution process, if the rents and profits will in seven years pay all liens. If this restriction were repealed and the lands of a debtor sold under a judgment existing prior to the repeal, which would in seven years pay all liens, could he establish the position that such sale was illegal and the repealing law void because a more prompt and enlarged remedy was afforded the creditor, than was given him by the law in force when the debt arose. Would the obligation of his contract be violated or impaired by the repeal, when that repeal merely enlarges the remedy?

In Virginia lands cannot be sold to pay debts, but as in England, a moiety is delivered by elegit to the creditor. If that state should adopt our system, would this change of the remedy impair the obligation of contracts existing at the time of the change and prevent the sale of lands to satisfy debts which originated before the change, because lands could not be seized and'sold for the paymrnt of debts when these debts were created? Such a modification of the remedy could not it is apprehended be deemed an impairing of existing contracts or of their obligation. Such acts would partake of the character of acts of limitation, and would all be held as relating to the remedy and not interfering with the contract or its obligation, as the right of a state to regulate the remedy and modes of proceeding in its own courts, and to prescribe the evidence which their courts shall receive and the effect of that evidence cannot be questioned. This is a right which the states have not parted with.

It does not belong to a debtor to complain that a legislative act impairs the obligation of his contract, unless the terms or effect of that contract be altered by such law.

He cannot complain that the obligation of his contract, which is performance of his agreement according to its stipulations, is impaired, because the legislature grants to his creditor further time means or remedies to coerce or compel the debtor to execute an agreement or contract which he has contracted to execute or perform without limitation as to time.

The debtor is not for upholding, or sustaining or continuing the existence or remedies of the contract, but for holding it at an end and as no longer of any obligation—not because he has performed what he engaged to do, but because his creditor has not forced him to that performance by a suit within a given time, which time was not provided for by the contract—and he contends that the obligation of his contract is impaired because an act of limitation extends to the person with whom he contracted further time for suit than was given by the law when the contract was made. That the extending or enlarging the remedy to compel the defaulter to comply with his contract—the holding the contract as not extinct annihilated or without a remedy to enforce it, impairs the obligation of that contract. Such in our judgment is not the construction to be put on the clause of the constitution of the United States, and we cannot consider the 10th section of the act of 1829 regulating the remedy on contracts and making a most equitable provision for the renewal of actions, where a party had not slept upon his rights beyond the time fixed by law, but asserted them by an action within time, which for some error has been reversed, can be held in relation to a debtor as impairing the obligation of his contract.

Huffington and Ridgely, for plff. Bates and Clayton, for deft.

There remains one point to be noticed which was urged by the counsel for the defendant.

The declaration avers that Lewis Williams did not in his lifetime pay to the plff. the $3,000 the penalty of the bond but wholly refused so to do, and that the same remained at his death and still remains due and unpaid to the plff. It further avers that neither John Wilds in his lifetime or Thomas Wallace his administrator after his disease though often requested ever paid William S. Bishop any part of that sum; but there is not an express averment that the administrator of Lewis Williams did not pay the amount of the bond. For the want of this latter averment it is contended the declaration is defective and that as the demurrer reaches back through the whole record and attaches ultimately upon the first substantial defect, this error in the declaration of the plff. must be fatal to his action.

The answer to this is a very plain and conclusive one. No part of this record shows that there ever existed any administrator to the estate of Lewis Williams. If there was no administration on the estate of Williams, there could not with any propriety, certainly there was no necessity, for such an averment as is contended there should have been. Be non apparentibus et non existentibus eadem, est lex.

This declaration negatives payment by each and every person connected with the guardian or this surety or their estates whose duties and rights it was (so far as appears from the record) to pay this bond or comply with its condition. It avers that Williams did not pay in his lifetime—that the money remained due and unpaid at his death and still remains due and unpaid. More than this the law does not require.

The opinion of the court therefore is that the demurrer must be overruled and that judgment be entered for the plff. for the penalty of the bond to be released on payment of the sum ascertained by the agreement of the parties to be due and the costs.

Judgment for plaintiff.