240 Pa. 590 | Pa. | 1913
Opinion by
The action in this case was on a penal bond in the sum of $8,000, conditioned on payment by the obligor, his heirs, executors and administrators, to the obligee, of the sum of $500 per annum, in equal quarterly payments during obligee’s natural life. During his lifetime the obligor paid regularly in accordance with his covenant; but since his death his personal representatives have repeatedly made default, and for the recovery of the arrearages the present action was brought on the bond. An affidavit was filed in which the arrearages claimed were admitted, but the plaintiff’s right to recover on the bond for the penal sum was denied. The affidavit was held insufficient and judgment was accordingly entered for $9,553.13, which amount included the penal sum of the bond and $1,553.13, the total amount in arrear, or, in other words, the damages up to the time of bringing the action. Appellants contend that the only action the plaintiff can have against the estate of the obligor is one for the arrears of the annuity. That plaintiff could maintain such action on the covenant in the bond, using the bond simply as evidence of the covenant, is not to be questioned; but it does not follow that she may not bring her action directly upon the bond itself. She may have either remedy: New Holland Turnpike Co. v. Lancaster County, 71 Pa. 442. When the action is on the bond there can be but one judgment, and that must be for the amount of the-penalty, with an assessment of damages for the breaches' assigned. If subsequent breaches occur, the remedy for their recovery is by scire facias upon that judgment. This is a settled rule of practice, distinctly announced in Duffy and Mehaffey v. Little, 5 Watts 120, and since repeatedly and consistently followed. There.was. error-