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A26015 The law of obligations and conditions, or, An accurate treatise, wherein is contained the whole learning of the law concerning bills, bonds, conditions, statutes, recognizances, and defeasances ... : to which is added a table of references to all the declarations and pleadings upon bonds, &c. now extant : also another table to the forms of special conditions which lie scattered in our president [sic] books ... : with an index of the principal matters therein contained / by T.A. of Grays-Inn, Esq. Ashe, Thomas, fl. 1600-1618. 1693 (1693) Wing A3972; ESTC R9431 276,581 591

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is not good unless he shew the Deed and plead this and it is not sufficient to shew the Deed when the Plaintiff replies and prays Oyer because the Plea of the Defendant ought to be special if any of the Covenants are in the negative and it appears not to the Court whether the Covenants are negative or affirmative until the Deed be shewn this hath been a controverted Point in our Books and in case the Party who will plead the Deed had not this he ought to move the Court and the Court will order he shall have the Deed or a Copy of it Siderfin 1. p. 50 97. Lewis versus Ball and p. 425. Tapscot and Wooldridge If he pleads performance generally without shewing the Indenture I may demur to it 1 Siderfin p. 425. Tapscots Case In Debt on Bond for performance the Defendant cannot now pray Oyer as heretofore but must plead to the Indenture and produce it to the Court misentry of the date of the Deed upon Oyer may be amended 1 Keble 104. Anonymus The Defendant pleads it was upon Condition to perform Covenants in an Indenture hic in Curi● prolat and in truth the Deed was not indented the Plaintiff had Judgment 5 Rep. 20 b. Stiles Case Cro. El. 472. mesme Case The Defendant demands Oyer of the Condition ei legitur which was to perform Covenants the Plaintiff demurs generally because the Defendant saith not profert hic in Cur. the Indenture for as the Plaintiff profert hic in Cur. the Obligation on which he declares so the Defendant ought to poferre in Cur. the Indenture which he pleads for otherwise he may recite this in pleading and the Plaintiff may not have answer or remedy this is aided by the Statute 27 Eliz. being matter of form otherwise had it been upon special Demurrer the Entry upon the Roll always supposeth this to be brought into Court per the Defendant and the Court may compe● the Plaintiff to give a Copy to the Defendant if he swear he never had any part or that he hath lost it 1 Siderfin p. 208. 1 Sanders p. 8. 2 Keble p. 102. Jevans and Harridge A Condition to perform Covenants the Defendant pleads after the making the Bond and before the Writ the Indenture was cancelled by the Plaintiff ill Plea for the Bond might be forfeited he ought to have pleaded performance of Covenants till such a day which day the Indenture was cancelled 1 Brownl 78. Anonymus The Condition was to perform all Covenants comprised within certain Indentures bearing even date with the Obligation and in truth the Obligation and Indenture were both without date Per Cur. they ought to have averred a date of the Obligation and averred also that the Indenturs bore the same date with the Obligation Anonymus Noy p. 21. A Condition for performance of Covenants whereof some are void by Common Law yet it shall stand good for the rest otherwise where part is void by Statute Law all is void Hob. p. 14. Sir Daniel Nortons Case Cro. El. p. 529. Lee vers Coleshil A Condition for performance of Covenants though the Covenants broken be released yet the Bond remains under Forfeiture Hob. p. 168. Where an Act is to be done according to a Covenant he who pleads the performance ought to plead it specially otherwise where it is a permittance then it is as in the negative in which Case permisit is a good Plea and then it shall come on the Plaintiffs part to shew how the Defendant non permisit ● Leon. 136. Littleton and Perne If the Defendant pleads generally performance of Covenants where some in the negative and some in the affirmative and the Plaintiff doth demur generally upon it without shewing cause of Demurrer Judgment shall be given according to the truth of the Case for that default of Pleading is but matter of form and is aided by the Statute 27 Eliz. except the Plaintiff for cause sheweth some are in the negative and some in the affirmative but if any of the Covenants be in the disjunctive so as it is in the election of the Covenantor to do the one or other then it ought to be specially pleaded and the performance of it for otherwise the Court cannot know what part hath been performed 1 Leon. 311. Oglet horp and Hide A Condition was for the performance of Covenants within a certain Indenture whereof some of the Covenants were in the affirmative and some in the negative he pleaded the Indenture and performance of the all Covenants therein generally and it was thereupon demurred and without argument adjudged for the Plaintiff Cro. El. p. ●91 Cropwel and Peachy In Debt sur Bond conditioned to perform Covenants of Under-sheriffs Bailiff part in the negative and part in the affirmative the Defendant as to those in the negative pleaded negatively and as to those in the affirmative that he had observed them to which the Plaintiff replieth that the Defendant was not assisting at the Arrest of J. S. to which the Defendant demurred Per Cur. the Plea is ill without shewing how he had performed them and yet the Replication is good to shew a cause of Action for the naughty Plea was a trap that the Plaintiff should have demurred to and so no cause of Action would appear Judgment pro Quer. nisi c. 2 Keble 405. Cl●vel versus Galler By the course of the Court upon Bonds of vast Sums to perform Articles or Covenants in Debt for non-performance may be common Bail or according to the value of the Breach assigned at the discretion of the Judges 1 Keble 124. Siderfin 63. Boothbyes Case A Condition to perform Covenants and Agreements one was that the Plaintiff had covenanted with the Defendant that it should be lawful for the Defendant to cut down Wood for Fire-boot and Hedge-boot without making waste or cutting more than necessary the Plaintiff assigns a Breach in that Covenant which is in truth the Plaintiffs Covenant exception was That the Condition ought but to extend unto Covenants to be performed on the part of the Lessee non allocatur it is the agreement of the Lessee though its the Covenant of the Lessor 1 Leon. 324. Stevensons Case A Condition for performance of Covenants one is against the Statute of buying Offices the other is a good Covenant and not concerning that the Obligation is void in all but for the good Covenant Action of Covenant will lie Cro. El. 529. Lee and Coleshil Q. Debt on Bond to perform Articles the Plaintiff Covenants to assign over his Trade to the Defendant and that he should not take away any of his Customers and in consideration of performance thereof the Defendant covenants to pay the Plaintiff 60 l. per annum for Life and pleads that after the agreement the Plaintiff before any thing done did work to J. S. a Customer the Plaintiff demurs Judgment pro Quer. this is not a Condition precedent but these are mutual Covenants the Plaintiff need
not stay to wait for performance perhaps then he may stay as long as he lives but as on Bonds of Abritrament on breach of either Party hath remedy 2 Keble 674. Modern Rep. 64. Siderfin 464. Humlock and Blacklow In Debt for performance of Covenants they must be set out in Latin Allen p. 87. Of Assignment of a Breach on Bonds of Covenant IF Breach be assigned after the Action brought its ill the Defendant demands Oyer of the Obligation and it was for performance of Covenants the Plaintiff replies and assigns a Breach in non-payment of the Rent the 20th day of June 17 Car. and the Bill was filed Trin. 17 Car. which Term ended the 14th of June therefore ill Siderfin 307. Champions Case Bond of Covenants to perform the Indenture of a demise the Plaintiff declares he made the Lease the 28th of May to the Defendant and that postea scil 27th of the same month of May the Defendant broke the Covenant Demur because the breach is set forth before the Lease began and so no cause of Action but by Bacon where the postea scil are repugnant as here they are the postea shall be good to signifie the time of the Covenant broken and the scil shall be void Stiles p. 45. Anonymus If an Obligation conditioned for payment of Mony become payable hanging the Action this had made the Action good otherwise where it is conditioned for performance of Covenants and there is a Breach pendent the Action Q. Siderfin in Champions Case p. 308. The Plaintiff must assign a Breach to intitle himself except in some Cases vide infra on a Bond of Covenants that the Defendant should not deliver possession to any but the Lessor or such Persons as should lawfully recover the Defendant pleaded he did not deliver but to such Persons as lawfully recovered it the Plaintiff demurs Judgment pro Quer. Per Twisden on affirmative Covenants general pleading of performance is sufficient and so on negative for its sufficient for the Defendant to plead an excuse and the Plaintiff must assign a breach to entitle himself 1 Keble 380 413. Nicholas and Pullen One Covenant was That J. B. her Heirs c. should perform Covenants in a Deed Poll whereof one was That if I. died before the Plaintiff had satisfaction on Judgment assigned then the Administrators de bonis non of H. B. should farther secure that Assignment the Defendant pleaded performance generally the Plaintiff replies such a day I. died and sets not forth any Breach Judgment pro Defendente 2 Keble 288 301. Truss● and Mading The Plaintiff is not bound to alledge a special Breach when the Defendants Plea contains speciall Matter A Condition to perform Covenants in an Indenture one was That I. the Defendant should permit Guy the Plaintiff from time to time to come and see if the House leased by Guy and K. his Wife were in repair I. pleads in Bar that I. B. and K. his Wife were Tenants in Tail of the House and had Issue that I. B. died K. married Guy the Plaintiff and they two make a Lease to him for 20 years and that W. the Issue in Tail such a day entred before which entry the Condition was not broken Guy replies That William came with him upon the Land to see if Reparations c. and traverses the entry of William in manner and form prout and Issue joined upon the Traverse c. and found pro Quer. and Judgment it was assigned for Error that there was not any breach of Covenant in I. assigned and so had shewn no cause of Action but per Cur he need not in this Case for the special Plea of the Defendant had disabled the Plaintiff that he could not assign any breach of Covenant but of necessity ought to answer to the special Matter alledged It s not like the Case of Arbitrament in Debt on Bond to perform Award the Defendant pleads nul ●iel Award then the Plaintiff in his Replication ought to set forth Award and assign his Breach because the Defendants Plea 〈◊〉 general but if in such Case the Defendant should plead a Release of all Demands after the Arbitrament by which he offers a special point in Issue there it sufficeth if the Plaintiff answer to the Release without assigning any Breach Yelv. p. 78. Hob. cont ● Brownl p 89. Jeffry and Guy 2 Keb. 46 74. ●arch and ●lacka● The Condition was That wher● Ed. Tailor had bargained c. to the Plaintiff a Close c. and whereas the said Ed. T. hath already ●ort gaged to J. S. divers Lands in G. whereby the said Close is either mortgaged or supposed to be mortgaged c. if therefore the said Close of Pasture at the day mentioned in the said Indenture of a Mortgage be redeemed and set free c. the Defendant pleads the Close was not mortgaged to J. S. sic dicit quod clausum praed c. fuit redempt liberat exonerat c. the Plaintiff replies That the said Close was mortgaged to the said J. S. and upon this Issue joined and found pro Quer. and 't was moved in Arrest of Judgment that the Replication was not good for he ought to have replied quod pignoratum fuit to the said Smith and is not redeemed for it might be redeemed before the day Per Cur. it s a good Replication 1. The Defendant hath offered a particular point in Issue that it was not mortgaged and the Plaintiff answers it when he saith it was mortgaged and need not alledge that it was not redeemed for there shall never be intended any redemption because the Defendant pleads it was not mortgaged as J. S. is bound to marry the Daughter of J. D. upon Easter-day next in Debt on this Obligation if J. S. pleads in Bar that the Daughter of J. D. died before Easter-day it s a good Plea and its a good Replication that the Daughter was living on Easter-day without saying farther that he had not married her because a special Plea in Bar is always answered with a special Replication in the Point alledged 2. Because the Mortgage is supposed to be made between a Stranger and the Defendant to whose Acts of Redemption c. the Plaintiff is not privy and cannot have conusance or notice of theire Acts its excellent Learning which hath made me more at large recite it Yelv. M. 44 and 45 Eliz. R. R. fol. 24. Baily and Tailor Cro. Eliz. p. 899. mesme Case the difference is such pleading after Verdict should be good but not if demurred to as the Condition was the Defendant should render account of all such Goods of A. as came to his hands or pay his part for them The Defendant pleads nothing came to his hands The Plaintiff replies a silver Bowl came to hands Demurrer Ill Replication for he should have said and had not paid for it Siderfin 340. 1 Keb. 275. Hayman and Gerrard Though in Obligations put in Suit for
it presently for the Covenant is peremptory 1 Anders p. 122. Case 117. Andrews and Eddon 1 Rolls Abr. 424. Wotton and Crook 2 Rep. Mansers Case The Condition is that he shall make a good absolute perfect Assurance in Fee of Copyhold Lands and after he renders this upon Condition of payment of Mony it is not any performance for the Assurance ought to be absolute so if it were to make farther Assurance if he make Assurance on Condition it is not a performance 1 Rolls Abr. 425. Risbon and Gayre It must not only be an absolute but an effectual Conveyance If a Man be bound to surrender a Copyhold to the use of A. and his Heirs on consideration of Mony if he surrender into the Tenants hands he must get it presented for it must be an effectual Surrender as if a Man be bound to make a Feoffment to me upon Request if I request him him to make a Deed of Feoffment with Letter of Attorny to B. to make Livery to me and he doth so this is a good inception yet if Livery be not made it is a Forfeiture of the Condition 1 Rolls Abridg. p. 425. Shan and Belby A Condition to make assurance of Lands to the Obligee and his Heirs and the Obligee dies yet he must make assurance to the Heir for the copulative shall be taken as a disjunctive 1 Rolls Abr. p. 450. Horn and May. Dubitat in Jones p. 181. Eaton and Laughter For it was the intent the Heir should take by descent and not by purchase A Condition to enfeoff two before such a day and one dies before the day yet he ought to enfeoff the other 1 Rolls Abr. 451. Horn and May. 5 Rep. 22. a. Benl n. 31. contra A Condition to give and grant to him his Heirs and Assigns The Defendant pleads he hath been ready to give and grant ill Plea for he must plead that he did it Aliter if the words had been as Counsel should advise 1 Brownl Kep 75. Chapman and Pescod Condition to enfeoff Lands of such an yearly value The Defendant pleads he enfeoft him of the Mannor of D. in Com. W. and of the Mannor of S. in the County of S. Cave Replication for it cannot be tryed 11 H. 7.14 One is obliged to assure 20 Acres of Land the Acres shall be accounted according to the Estimation of the Country where the Lands lie and not according to the measure limited in the Statute Cro. Eliz. p. 665. Some and Taylor One by Indenture bargains and sells to the Obligee all his Lands in D. and covenants that he will make farther assurance of all his Lands the Breach assigned was because he did not make farther assurance of those Lands and it appears by the pleading that the Bargainor had enfeof● the Bargainee before all his Lands there so as he had not any Lands at the time of the Bargain and Sale and if he then had not then the Breach is not well assigned and so held tota Curia But if one enfeoffs another of his Lands and afterwards bargains and sells them by name and covenants to make assurance he is bound to make assurance accordingly Crook Eliz. p. 833. La● and Hodges The Condition was whereas the Defendant had granted an Annuity to the Plaintiff that the Defendant should make farther assurance to the Plaintiff for the enjoying thereof within one Month when he should be thereunto required the Month shall begin from the time of the Request Stile● p. 242. Wentworth's Case A Man by Deed indented bargained and sold Lands to another in Fee and covenanted by the same Deed to make him a good and sufficient Estate in the said Lands before Christmas next and afterwards before Christmas the Bargaino● acknowledged the Deed and the same is enrolled per tot Cur. by the Act the Covenant was not performed for he ought have levied a Fine or made a Feoffment c. 3. Leon. p. 1. Anonymus Condition of Covenant for quiet Enjoyment D. was bound to H. on Condition that H. and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleads the Surrender and that the Plaintiff entred and might have enjoyed the Lands The Plaintiff replies that after his Entry one G. entred upon him and ousted him Per Cur. Replication ill because he did not shew he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer Vaugh. p. 121 122. Hammonds Case The Defendant leased to the Plaintiff an House by the words of Demise and Grant which words import a Covenant in Law and the Lessor covenanteth that the Lessee shall enjoy the House during the term without Eviction by the Lessor or any claiming under him which express Covenant was narrower than the other and gave Bond to perform Covenants The Plaintiff grants his term over to a Stranger The Plaintiff assigned for Breach that one S. entred upon the Assignee and upon Ejectment recovered against the Assignee Debt was brought upon this Bond per Cur. by this Covenant in Law the Assignee shall have a Writ of Covenant and for this breaking the Covenant in Law the Obligation was forfeited but because the Plaintiff did not shew that S. had an ancient Title for otherwise the Covenant in Law was not broken therefore Judgment against the Plaintiff 4 Co. Rep. 80. b. Nokes Case Cro. El. p. 674. id Case If I. covenanteth with B. to enter into a Bond to him for enjoyment of such Lands and do not express what Sum he shall be bound in such a Sum as amounteth to the value of the Land 5 Rep. 78. a. in Samons Case The Defendant pleads performance of Covenants the Plaintiff alledgeth a Breach upon this Covenant that the Lessee should enjoy the Land without any lawful interruption or disturbance of the Lessor or his Executors and shews that the Executors entred upon him and ousted him and shews not any interruption for a just cause and adjudged good 1 Brownl 80. Ratcliffs Case Debt on Bond to perform Covenants the Covenant was for quiet enjoyment without let trouble or interruption c. the Plaintiff assigned his Breach that he forbad his Tenant to pay his Rent Per Cur. it s no Breach unless there were some other Act 1 Brownl p. 81 Witchcot and Liveseys Case Vide Moor n. 156. Broughton and Conrey Where the Defendant is not bound to warrant peaceable possession to the Vendee but only for Acts by himself done or to be done The Condition was If the Defendant warrant and defend an Ox-Gang of Land to the Plaintiff against J. S. and all others that then c. Resolved that the word defend shall be taken as a Defence against lawful Titles and not against Trespasses And per Anderson one Covenants to make a Lease of all his Lands in D. and in D. he hath as well Copyhold as Freehold Lands he is not by this Covenant to make a Lease of his Copyhold Land for
Debt on Obligation in which Outlawry goes in Bar he failing of the Record the Plaintiff had Judgment Cro. Eliz. 203. Smith and Bernard The Defendant pleads Outlawry in the Plaintiff and shews it in certain the Plaintiff pleads nul tiel Record in the mean time the Plaintiff reverseth the Outlawry The Defendant shall not be condemned but a Respondeas ouster Failer of the Record not peremptory the Defendants Plea being true at that time Yelv. p. 36. Green and Gascoigne 1 Browel Rep. p. 83. The Defendant pleads Outlawry of the Plaintiff and shewed the Outlawry in certain by the name of J. S. of D. in the County of c. The Plaintiff shewed that at the time of the Suit begun against him the said J. S. upon which the Outlawry was pronounced was dwelling at S. absq ' hoc that he was dwelling at D. Per Anderson it s a good Replication to avoid the Outlawry without a Writ of Error for he cannot be intended the same Person 1 Leon. p. 87. Anonimus In Debt on Bond The Defendant Imparles till next Term after he may plead that the Plaintiff is Outlawed for the King shall have the Debt on Bond aliter in Trespass or Debt on simple Contract 16 Ed. 4 4. a. per Brian The Defendant pleads Attainder of himself after a Debt due to the Plaintiff it s no Plea More n. 982. Hall and Trussel Bro. Eliz. 516 Banister and Trussel 2 Anderson 38 45. Mesme Case The Defendant pleads at the time of the Obligation made he was non sanae memoriae its non Plea Cro. Eliz. p. 398. Stroud and Marshal The Defendant pleaded that the Plaintiff is a recusant Convict in Bar Litt. Rep. 235. Rooksby versus Bridge Debt upon Obligation in Norwich The Defendant confest it to be his Deed but according to the Custom there prayed quod inquiratur de ●debito and the Inquest was awarded and returned and found to a certain sum for which sum the Plaintiff had Judgment to Recover this was assigned for Error But because it was done according to the Custom it was not Reversible Cro. Eliz. 894. Grice's Case In Debt on Obligation against the Lord Monteagle The Defendant pleads his Peerage and prays to be Discharged Per Cur. Plead in chief this is but a Dilatory Plea Stiles p. 257. Lord Monteagles Case Arbitrament pleaded in Bar. Vid. Supra titulo Rules of Pleading Foreign Plea THe Condition was that in case the Ship were Cast-away in the Voyage and did not return it should be void The Action was laid in London and the Defendant pleaded she was Cast-away at Falmouth It s ill had the Plea been local it ought to be sworn The Action being Transitory the Defendant shall not by any thing Transitory alter the Venue but ought to alledge the Ship was Cast-away at St. Maria de Arcubus in Warda de Cheap in the same County the Action is brought 1 Keb. 750. Collins's Case The Declaration is that the Obligation was at Barnstable and the Plea is that it was at Chichly and payment alledged there which is a Foreign Plea The Plea was not sworn nor demurred to but received and Day given to swear it and for not swearing it accordingly Judgment is given by default whereas it ought to have been by Nihil dicit for want of a Plea And per Rolls If one plead an Insufficient Plea although it be a Foreign Plea it s not necessary it should be sworn Stiles p. 200. Wyatt and Harbye In a Corporation Court if the Defendant plead a Foreign Plea which is Collateral as in Debt on Bond he pleads a Release made in a place out of the Jurisdiction it need not be received without Oath But if in Covenant or Debt for Mony to be paid in another place he pleads payment accordingly or the Covenants performed in a place limited which is out of the Jurisdiction it ought to be received without Oath Lit. p. 236 Corporation Court Condition for performance of Covenants Breach assigned for Non-payment of Rent The Defendant pleads performance till such a day and that the Plaintiff entred in Surry where the Lands are leased But the Action being in B. R. the Court made him swear his plea yet because the Council offered to try it by Nil debet which is no Plea but by Consent which the Plaintiff refused the Court allowed the Plea 2 Keb. p. 386. Jones and Comport Debt on Bond in Bristol Recovery pleaded in the Kings Bench the Plea must be sworn and though it be sworn if they have cause to presume it not true they may refuse it Siderfin in Knights and Pitt's Case fo 330. Foreign Attachment pleaded THe Defendant pleads Foreign Attachment in London to Debt on Bond The Plaintiff demurs 1. Because the Defendant had Attached Mony in his own hands by way of Retainer 2. The Custom is in London that the Recoveror ought to find Sureties that if the Defendant be discharged within a year and a day then to pay the Mony and it did not appear by the Record that he found Sureties This was held an incurable Fault 1 Brownl Rep. p. 60. Hope and Holman L. brought Debt against H. on Obligation H. pleads how one J. J. affirmed a plaint of Debt in London against the said L. and by the Custom there Attached that Debt now demanded in the Hands of the said H. and pleaded the Recovery and Judgment there The Plaintiff replies that before Attachment J. J. brought Debt in the King's Bench against the said L. for the same Debt whereupon he made an Attachment whilst the Suit was depending Et hoc c. H. demurs Per Cur. notwithstanding this that J. J. had commenc'd a Suit in B. R. for his Debt and the Suit there depending yet the Debt in the Hands of H. may be Attached For tho one cannot Attach a Debt in London for that a Suit is here depending in the King-Bench as Cro. Eliz. 691. Humfrey and Barnes yet one who hath conceived an Action here may affirm a plaint in London for the same Debt and may make Attachment of the parties Debt according to the Custom For there the Debt in question is not touched by the Attachment and the Plaintiff might now have pleaded this Attachment in Bar for so much of his Debt in the Action brought in the King's Bench Cro. Eliz. 593 712. Leuknor and Huntly The Defendant pleads that the Plaintiff was Indebted to him concessit solvere and pleads a Foreign Attachment in London The Plaintiff protestando quod non habetur tale Record ' pro placito dicit that he pro diversis denariorum summis per ipsum prafat R. prius debit ' non concessit solvere the said Sum modo forma prout Adjudg'd a good Plea in Bar for the Debt is well Travelable Cro. Eliz. 830. Coke and Brainforth The Defendant pleads Tender and so to Issue and after the Defendant pleads that after the Darrein Continuance Foreign Attachment Per Cur
THE LAW OF Obligations and Conditions OR An Accurate TREATISE wherein is contained the whole Learning of the LAW concerning Bills Bonds Conditions Statutes Recogniz●nces and Defeasances as also Declarations on Special Conditions and the Pleadings thereon Issues Judgments and Executions with many other useful Matters relating thereunto digested under their proper Titles To which is added A TABLE of References to all the Declarations and Pleadings upon Bonds c. now extant ALSO Another TABLE to the Forms of special Conditions which lie scattered in our President BOOKS Being a Work necessary for all that Study the Law or follow the Practick Part thereof With an INDEX of the Principal Matters therein contained By T. A. of Grays-Inn Esq LONDON Printed for I. Walthoe at his Shop in Vine-Court Middle-Temple 1693. TO THE STUDETNS OF THE Common Law GENTLEMEN I Have often admired as well at the Confidence as the scribling Fatigues of any particular Persons who pretend to write Abridgments of the whole Common Law of England Non est res unius aetatis such Persons by an impertinent Citation of a Multitude of Cases not duly examined either raise a Confusion in the Minds of Students or else soften them into a careless Humour it being more easie to turn to Hughes or Shepherd than to search into the true Reasons of the Judgment in Cases maturely reported besides these Persons are seldom curious about Declarations and Pleadings their essential Forms and apt Notions which is the very Soul of the Law that plastica vis without which all their Volumes are void of Life and regular Motion a meer rudis indigestaque moles Some indeed have merited well by their particular Treatises and for that they have kept themselves to one Subject have proved very useful This particular Title which I here present to you hath not been hitherto fully and designedly handled and yet there is no Title more frequent in our Books than that of Obligations and Conditions The Method I have used is as exact as a Treatise of this Nature is capable of yet in this I have not been over-curious and systematical I have not treated at large on Arbitration Bonds the Learning of Arbitraments being a large Title of it self and Mr. March hath been very exact therein and for the same Reason I have been very sparing about Bonds sued by or against Executors or Administrators that being a peculiar Learning of it self though hitherto I confess but lamely handled I have added a Reference-Table of Declarations and Pleadings both Ancient and Modern a thing useful for entring Clarks who may at any time compare their own Manuscripts with these I have also added a Table of special Conditions such as are extant though that must generally be left to the Students own Improvement as the nature of the Case will be and it s very easie to change any Covenant into a Condition Some Cases I have cited more largely for the benefit of such who may not have the Books at hand but especially where the Reasons of the Resolutions are Learned and Curious and I have corrected some Cases which have been mistaken in some Reports as Croke Eliz. and others I have ventured to insert many of the Cases reported by Mr. Keble though in some of them I confess I am a little confounded but they are set down in his own Words Gent. If this Piece prove useful to you either in it self or in instructing you in the Method of your Studies as to other Titles of Law I have my Design And if you please to pardon my Mistakes it will lay a farther Obligation on your Humble Servant J. A. The Names of the Books made use of in the Table of Pleadings A Stons Book of Entries in Quarto Printed 1673 Brownlows Declarations and Pleadings in English 2 parts 4to 1653 Brownlows Declarations and Pleadings in Latin fol. 1693 Browns Entries in 2 parts fol. 1675 Modus Intrandi 8 vo 1687 Cokes Entries fol. 1671 Clarks Manual 8 vo 1678 Hernes Pleader Eng. fol. 1685 The Book of Entries fol. 1685 Robinsons Entries fol. 1685 Rastals Entries fol. 1670 Placita Generalia Specialia 8 vo 1674 Tompsons Entries fol. 1674 Vidians Entries fol. 1684 Winches Entries fol. 1680 THE INDEX A. PLEAS in Abatement and where the Court shall abate the Writ 34 35 36 37 359 360 361 362 365 366 402 Acquittance pleaded to a single Bill 31 Acquittance pleaded in discharge of Covenants for Reparations 198 Acceptance Concord pleaded in Bar 406 Condition to accept a Lease 232 Condition to give an Account 237 Of Acts to be performed by a Stranger 188 Action on Bonds 353 By a Corporation 355 By joint Obligee 356 By Baron and Feme 357 By Alien ibid. By Executors and Administrators 358 Action brought on Bond against Administrators and Executors 358 Against Baron and Feme 363 Against Body Politick 364 Against Joynt Obligors ibid. Against a Servant or Receiver 367 Action brought before Cause of Action ibid. Who to do the first Act 352 Conditions on special Agreements Contracts c. 134 Bonds made to Aliens 19 Leases made to Alien Artificers 50 Condition not to alien 234 Conditions for Appearance at a place Vid. Title Sheriffs Bonds 232 Appearance to a Sheriffs Bond how to be pleaded 85 86 87 Apprentices Bonds 305 Condition for Appearance for Felony 314 Inter alia a Bond may be put in Arbitrament yet in such Case the Arbitrament cannot be pleaded in Bar of the Obligation 400 Of Bonds of Arbitrament 301 Assignee who are Assignees of the Obligee when a thing is to be paid or performed to him or his Assigns 110 111 Assignee to perform Covenants 190 Assignee of Estate and Assignee of Contract 172 Assignment of Obligations to the King 317 Assignment by Commissioners of Bankrupts 343 Assets in the Hands of the Heir 293 300 Condition to make Assurance or farther Assurance 157 c. At whose ●●…sts 161 Condition to assure Land on Marriage 235 Foreign Attachment pleaded 445 Averment 10 35 Audita Querela where lies and where not 257 272 281 B. BOnd 's Vid. tit Obligations Action brought by Baron and Feme on Obligation 357 Against Baron and Feme 363 Obligations assigned by Commissioners of Bankrupts 343 Conditions concerning Bastard Children 132 Bail Bonds Vid. Sheriffs Bonds Bail Recognizance 267 The Nature of it ibid. Process and Scire Fac. thereon 269 How and when the Bail is discharged 272 Pleadings thereon and Execution 277 Removal Error Hab. Corp. 282 The Form of a Recognisance of Bail 313 Bond for the Good Behaviour 309 What amounts to a Breach of the Behavior 309 316 Condition to procure a Benefice 225 Of Bills Obligatory 8 27 Two several Bills in one 11 Assignment of a Breach on Bonds of Covenants 149 C. OBligations made by a Corporation16 Obligations made to a Body Corporate19 Conditions The Nature of a Condition 38 The several sorts of Conditions 39 Of Conditions precedent and their Operation 40 What words make a Condition 41 What
Vide tit Condition Exposition of Conditions 110 Execution on Statutes and Bonds 262 265 410 Actions brought by Executors on Obligations 355 Summons and Severance 359 Release by Infant Executor ibid. Actions brought on Bonds against Executors or Administrators 361 F. FEme Covert makes a Bond how far binds 13 Bonds made to Baron and Feme 18 To Feme Covert ibid. To Feme Sole 19 Actions on Bonds by Baron and Feme 357 Against Baron and Feme 363 Condition to acknowledge a Fine 184 185 186 187 Who to do the first Act 352 Bond when said to be forfeited Vid. sparsim per tot 99 c. 142 179 Forgery of Bonds 345 Foreign Plea 443 Foreign Attachment pleaded 445 Fraudulent Deed need not be pleaded but may be given in Evidence 295 G. OF Bonds given for Gaming Mony 53 Act of God Vid. supra H. DEbt on Bond against the Heir 292 Riens per descent 293 What shall be Assets ibid. Declarations 297 Judgment ibid. I. JEofail 115 Impossibility excuse a Condition 97 98 Condition impossible the Effect of it ibid. Pleas after Imparlance Vid. tit Pleadings Infants entring into Bond acknowledging Statutes Recognisances 14 259 Insensible Conditions 100 Bonds joint or several 32 Actions by joint Obligees 356 Actions against joint Obligors 364 Joyining Issue on payment 461 On a Collateral point 462 Issue Tryal on Bonds Covenants 205 Of pleading to the Jurisdiction 449 Judgment on Bonds sued 465 K. BOnd made to the King Vid. Recognisance Condition to observe the order of the Kings Counsel 240 Assignment of Debts on Bond to the King 318 319 L. OF Bonds on Covenants in a void Lease 195 Condition to accept a Lease 232 Conditions concerning Legacies 239 Conditions about Licence 241 Condition to pay during Life 140 M. BOnd void for Maintenance 47 48 What is Maintenance and what not 317 Condition to pay Mony upon Marriage 131 Condition to convey Land upon Marriage 235 Bod void by Menass 107 Misnomer or Variance in the Names Additions 380 Monstre des faits 141 195 303 381 Bond of Covenants in a Mortgage 196 N. NAme of Baptism Variance between the Bond and Declaration 17 Variance in Names Additions 378 One Non compos mentis entring into Bond 16 One may not plead he was not sane memory at the time of his Sealing the Bond Vid. Pleadings Non est factum where pleaded to a Bond 36 430 c. Vid. tit Pleadings Of Non-Residence and of Conditions against the Stat. of 13 Eliz. c. 10.14 Eliz. c. 11. 58 Notice where requisite and where not in the performance of a Condition 134 135 166 218 224 308 347 351 O. THE Nature of an Obligation 1 Faux Latin in Obligations or incongruous 3 The Frame and wording of Obligations and Bills Obligatory 13 What persons may or may not make Obligations ibid. To whom Obligations may he made 18 Obligations joint or several 32 By what Names bound 16 Of sealing and delivery of Obligations 22 27 Bond to Baron and Feme to Feme covert to Feme sole 18 19 Bond to alien 19 Bond to a Body Corporate ibid. Bond against the Heir Vid. tit Heir Bonds of Arbitrament 301 Bonds of Apprentices 305 Bonds for the Good Behaviour 509 Assignments of Obligations 317 Forgery of Bonds 345 Detinue of Bonds 346 Suits on Obligations 355 Vid. Suits Bond where suable 368 Oyer 381 Outlawry pleaded 441 How and by what means an Obligation good in its Creation may be defeated extinct or discharged by matter ex post facto in Deed or Law 473 478 479 A discharge of a Condition in part is a discharge of the whole 479 Of buying Offices 5● P. Payment PErsons to whom Performance or Payment to be made or done 110 Of Payment of Mony on a Bond in general 112 What Persons are bound to pay or do by the Condition ibid. Of Payment by Collateral satisfaction 113 Of Payment without Acquittance pleaded to a single Bill 31 Payment how to be taken 112 Time of Payment amongst Merchants 119 Place of Payment when a Place is limited 126 455 When no Place is limited 128 Time of Payment Vid. tit Time Of Payment at several days Of Performance of Conditions 122 c. Et sparsim per tot Performance on Bonds of Covenants where to be pleaded specially and where generally 194 Vid. tit Bonds of Covenants Payment of a lesser Sum in satisfaction 408 409 Place of Payment mentioned in the Condition and Venue 455 Joining Issue on Payment or not 461 What things will excuse the Performance of a Condition 353 Pleadings Where Performance generally may be pleaded and where it must be shewed specially and how 392 Of Pleading non damnificatus 209 395 In many cases the Law allows general Pleading to avoid Prolixity 34 396 Of Certainty in Pleading 397 Regularly it is good to pursue the Words of the Condition and yet he ought to plead the Certainty of time and place and manner of performance 398 In Pleading negatively he ought to traverse all the Condition 399 Where a certain duty accrews by the Deed at the beginning this ought to be avoided by a matter of as high a nature 400 Sometimes matter en fait shall avoid an Obligation ibid. A special Plea in Bar it always to be answered with a special Replication in the point 401 The Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment though the Issue be found for him 401 Pleas in Abatement Vid. Abatement Pleas after Imparlance what are good and what not 404 Concord Acceptance pleaded Vid. Concord Payment of a lesser Sum how to be pleaded 408 Collateral things or satisfaction pleaded in performance or for Payment where good or not 410 Payment pleaded and parcel paid 413 By command of another 415 Where mistake in pleading the Sum or the time is aided and where not ibid. Release pleaded Vid. tit Release Tender uncore prist pleaded 425 In what Cases non est factum is a good Plea and in what Cases and where a special non est factum as in Cases of Alteration Rasure Seals broken c. and Delivery as Escrow 430 c. 439 Estopples in Pleading Vid. tit Estoppel Plea per Duress Vid. tit Duress Plea per Heir to the Bond of the Ancestor Vid. supra Actions of Debt against the Heir Outlawry pleaded 441 Attainder of himself pleaded not good 442 Defendant pleads he was non sane memory no Plea 443 Recusant convict pleaded ibid. Peerage pleaded ibid. Of Foreign Pleas ibid. Foreign Attachment pleaded 445 Of pleading to the Jurisdiction 449 Recovery pleaded in Bar in another Court and against another person 450 Bond to be a true Prisoner for Fees 88 Condition to deliver Possession 228 Pleadings on Scire Fac. against the Bail 277 Condition to satisfie embezilled Goods after due Proof made 306 How Proof to be made 307 Pleadings on Sheriffs Bonds 80 R. OF Rasure in Obligations and Conditions 206 431
how non est factum may be pleaded thereon Delivery THE Defendant pleads non est factum The Jury found the Defendant caused the Obligation to be written and signed and sealed it and then laid it upon a Table and the Plaintiff came and took it per Curiam this was not the Defendants Deed without other Circumstances found by the Jury Had the Obligor cast it on the Table and said this will serve and the other took it it had been good Crook Eliz. p. 122 1 Leon. n. 193. Chamberlain and Staunton If an Obligation be delivered to another to the use of the Obligee and the same is tendred to him and he refuseth it then the Delivery hath lost its force and the Obligee can never after agree to it and therefore the Obligor may say it is not his Deed 5 Rep. p. 119. Whelpdales Case Obligation dated 3 Sept. 1 Jac. Condition was that if the Defendant 4 Sept. 2 Jac. pay 100 l. to J.S. at such a place and also save the Plaintiff harmless from any Suit c. The Defendant pleads true it was that he by his Obligation bearing date 3 Sept. 1 Jac. did become bound in 200 l. but further said that the said Obligation was not delivered as the Defendants Deed until the 17th day of Sept. 2 Jac. and then fuit primo deliberat Upon demurrer adjudged pro Quer. for the Bond mentioned in the Declaration is not answered For the Plaintiff shews the Defendant was obliged to him by his Obligation bearing date the same day c. which is laid to be a perfect Bond the same day as the Plaintiff counteth and then for the Defendant