The suit as brought appears to us to be within the plain words and intention of the bond.

Demurrer overruled.

A rule was afterwards obtained, to shew cause why judgment should not be entered in favour of the plaintiff, for the penalty of the bond, on which the suit is founded ; with liberty to take out execution for $2284 95 cents, with costs, being tbe amount for which a verdict and judgment have been obtained upon a trial on 3d September 1804, and the penalty to stand as a security for any other debts, within the terms and meaning of the said bond, and the agreement of counsel filed in this cause, on the 12th March 1804.

It afterwards came on for argument. In support of the rule, it was insisted, that every species of delay had been shewn in *173this cause. A plea in abatement that a former suit was depending for the same ground of action, was filed in December term 1800. When that plea was opened in March term last, the court recommended that it should be withdrawn, and the action tried on its true merits. This was acquiesced in, and a special agreement signed, the general effect of which was that the debts due from the former co-partnership', which were the objects of the obligation, should be established by due process and adjudication. It was intended to facilitate the remedy of the creditors. The court have power to enforce it, and they must exercise that power, for the sake of justice.

The plaintiff in his replication has assigned as a breach the % , *non-payment of the company debts, due to Gregg and UAI Co., and the defendant took issue thereon by his rejoinder. That debt has since been established in the suit brought against Kerr and Hawthorne on the 3d September last to the amount of $2284 95 cents : another action has been tried by Thomas Risdal and George Bowman against the company, on the 5th March instant, wherein there was also a recovery. What have we then to try ? The rejoinder admits the debt of Gregg and Co., to be within the bond of indemnity : it only can be ascertained by the record. By the rules of practice, an affidavit of defence must be filed to prevent judgment. The affidavit here filed, is of the most general-nature.

In debt for a penalty, for non-performance of covenants, judgment on a demurrer may be entered up for the penalty in like manner as before the stat. of 8 and 9 Will. 3. c. 11, but then it can only stand as a security for the damages sustained. Cowp. 357; 8, 9. In covenant, the breach may be assigned as large as the covenant; but in debt for a penalty, a precise breach must be shewn, because a breach is a .forfeiture of the whole bond. 1 Ld. Raym. 167.

In debt for penalty, on articles of agreement, the plaintiff may assign as many breaches as he pleases, that the damages may be assessed by the jury on each breach ; but the plaintiff cannot take a verdict for the whole debt. 2 Wils. 377.

Pursuing the spirit of these cases, it has been' adjudged, that the penalty of an agreement cannot be pleaded by way of set off. 2 Burr. 1024. Vid. 10. Wentwo. System of Pleading. Gen. Index, 68, tit. Judgment.

The defendant’s counsel shewed cause. The defendant has complied with the rule of the court by filing an affidavit in the terms of the rule. The agreement of counsel was intended to advance the justice of the case, but not to give up any legal ground of defence, which Meredith may have. The names of Gregg and Co., or of Risdal and Bowman, do not occur in the obligation. It is one thing to establish a debt due to either of them from the co-partnership, but another thing, to reach the surety under all the circumstances of the case.

The court do not possess the power of entering a judgment, before the defendants’ plea is tried in this suit. It concludes to the country, who only can constitutionally try it. It is an issue in fact. Where two pleas are entered, both must be tried before judgment can be given. 10 Vin. 67. pi. 7. The issues in fact must be tried. Ib. 9. pi. 2, 3, 4. In trespass, the jury found a verdict, as to part of the charge, of not guilty, but no verdict *as to the rest; the judgment was reversed. 3 Salk. 372. rs. Two executors plead different pleas; a judgment was L entered against both, on a verdict had on one plea only, and was held bad. 2 Stra. 1055.

Whatever our ideas of the merits of the' present case may individually be, we certainly are not author-ised to enter judgment in the action for the plaintiff. Issues in fact are joined, which must, previous to any judgment we can give, be tried by a jury of the country.

Rule discharged.