Executor the Release is void Aliter had the Obligation been joynt and several 1 Keb. 936. Scot and Littleton When two are joyntly bound in an Obligation tho' none of them is bound by himself yet none of them shall plead Non est factum for they had sealed and delivered it but he may plead in Abatement of the Writ and every of them is bound in the Entirety therefore if they two are sued and one appears and the other makes default and by process of Law he is Outlawed he which appeared shall be charged with the whole 5 Rep. 119. Whelpdale's Case The Defendant pleads he was bound simul cum R. G. to whom the Plaintiff had released all Actions the said first day of May that being the date in the Declaration The Plaintiff by Replication shewed that after the Obligation sealed by R. G. he released to him and after viz. the same day the Plaintiff sealed the Bond absque hoc quod simul tenetur cum R. G. The Plaintiff demurs this Release doth not discharge the Defendant And per Cur ' the Traverse is ill because R. G. was bound with the Defendant But because the Defendant had not taken advantage of it to shew it on Demurrer but confess'd it Judgment pro Querente Cro. Eliz. p. 161. Mannings and Townsend Against a Servant or Receiver GOdb sealed a Bill to E. T. thus Mem. that I have received of E. T. to the use of my Master c. the Sum of 40 l. to be paid at Michaelmass following E. T. brought an Action upon this Bill The Defendant demurs to the Declaration supposing that he receiving it as a Servant to anothers use he shall not be charged as a principal Debtor Per Cur ' The last Clause of the Bill is for payment of the Mony generally and doth not say to be repaid by his Master and so shall bind him that sealed it 1 Brownl Rep. 103. Talbot and Godbolt Of Actions and Suits Action brought before Cause of Action THe Writ was dated Mich. 30 Eliz. The Condition was if F. died before the Age of 21 years then if the Defendant caused an 100 l. to be paid to H. within three Months after the death of F. then c. F. died 30 Septemb. 30 Eliz. The Plaintiff hath no cause of Action as appeareth by the Record 1 Leon. 186. Woodshaw and Fulmerston Condition to pay an Annuity at Lady-day or within twenty days after Issue being joyned on a Collateral matter and found pro Quer ' It was moved in Arrest of Judgment that the Original was brought the 8th of April and he alledgeth the Breach to be lady-Lady-day last past which was within the twenty days and so the Action brought before he had cause of Action Apparent fauâ— Cro. Eliz. 565. Blunden's Case After Verdict and Judgment it was assigned for Error that the Teste of the Original was before the day of payment in the Condition Judgment was reverst Mâ—râ— N. 776. Williams and Buckley Cro. Eliz. 325 mesme Case If there had been no Original it had been good after Verdict but this is not aided by Stat. 18 Eliz. Bill Filed before the Obligation dated the Record was amended Siderfin p. 252. Manning and Warren Joynder in Action Vid. supra sparsim Bond where suable BOnd made in Virginia in partibus transmarinis it may be sued in the Admiralty 2 Rol. Rep. 497. Tucker and Caps Vid. supra Et supra tit Pleading to the Jurisdiction Declarations PEr Stat. 6 R. 2. it s provided the Original shall not be laid in one County and the Declaration upon a Bond made in another County if so the Writ shall abate Therefore if one plead the Bond was made in another County than where it was alledged in the Declaration it s an ill plea Allen Hill 22 Car. p. 17. Shalmer and Slingsby In Debt on Bond the place of the making of the Obligation ought to be shewed in the Count but if the Defendant plead Duress or Acquittance by which he confesseth the Deed this makes the Count good 28 H. 8. Dyer 14. In Debt on Bond Annuity or Praecipe of a Rent-charge the place where the Deed bears date ought to be alledged Aliter of a Release of Lands or Rent for this is Executory upon the possession 5 H. 7.14 28 H. 8. Dyer 14. 14 H. 8.16 a. To be paid at his Mansion-house c. this may be paid at any place 3 Bulstr. 244. Meletine and Hall Surrey was in the Margent and the Defendant in the Declaration was named of D. in the County of Sussex and that he made that Obligation at D. in Geni prâ—d and on Non est factum it was tryed in Surrey and Error assigned because Com' praed ' refers to the County last named Non allocutur for it shall have relation to the County where the Action is brought and that named in the Margent For the other County mentioned was by way of Recital and so it shall not relate thereto Cro. Eliz. 481. Shirly and Sâ—câ— vile Time A Declaration upon an Obligation made ultimo die Augusti upon Oyer of the Bond it bore Date the 19th of August The Defendant pleaded Non est factum the Jury found it his Deed and the Plaintiff had Judgment For the Count was not of the date but of the making and the Jury have found the Deed Hobart p. 249. Thorp and Taylor A Bill Filed before the Obligation dated the Record was amended in B. R. Siderfin p. 252. Manning and Warren An Obligation made to accord with the Indenture of Covenants in point of Time with Averment there was no other Indenture 3 Keb. 117. Countess of Falmouth Form of the Declaration IN the King's Bench it is said Sigillo suo sigillat ' but in the Common Pleas it is Per scriptum suum Obligatorium concessit se teneri c. without saying Sigillo suo sigillat ' delivery is never alledged and when it 's said Per scriptum suum Obligatorium all necessary Circumstances are intended to concur viz. Sealing and Delivery otherwise it is not a Writing Obligatory Cro. Eliz. fo 737. Penson and Hodges 2 Keb. 630. Cubitt and Green Three bring Debt and declare that the Mony was not paid to them and say not Nec alicui eorâ—m yet it 's good For payment to one is payment to all the Obligees Noy p. 69. Warner's Case Debt of 300 l. upon two Obligations dated 20 December to pay 150 l. c. and averred he had not paid it and did not say Nor any part of it yet good Winch p. 72. Foster's Case The Plaintiff declared that the Defendant such a day concessit se teneri c. profert hic in Curia scriptum praedictum quod debitum praed ' c. The Defendant demands Oyer of the Condition and pleads payment after a Verdict Judgment pro Querente It was assigned for Error because he doth not declare according to the usual Course Quod per scriptum suum
THE LAW OF Obligations and Conditions OR An Accurate TREATISE wherein is contained the whole Learning of the LAW concerning Bills Bonds Conditions Statutes Recognizâ—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 â—â—…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
time it is adjudged that he must conclude to the Country Et issint nient son fait de hoc ponit c. 3 Keb. 26 30. Forth and Fletcher Edwards and Webb ib. p. 142. Manning Bucknal contra Per Hale An Escrow may be given in Evidence on non est factum as well as Suspension on nil debet in Manning and Bucknal's Case 3 Keb. 142. If a Man be obliged to perform things in such a Deed it is no Plea to say he delivered this as an Escrow c. issint non est factum 1 Rol. Rep. per Cook 84. in Fletcher and Tarrer's Case Sealing THE Plaintiff declares that the Defendant per scriptum suum obligatorium concessit se teneri c. without saying sigillo suo figillat and good in the Common Bench for there the Presidents are so Delivery is never alledged so neither is it necessary to alledge the Sealing When he saith per Scriptum suum obligatorium all necessary Circumstances are intended to concur Crook Eliz. p. 738. Penson and Hodges Witnesses ONE ought not to be allowed to be a Witness to prove an Obligation or other Deed which he takes in the name of another For if he might be so admitted this is on the matter to suffer him to prove a Deed or Bond made to himself Stiles Pract. Reg. 221. Obligations are either Single called a Bill Joynt Joynt or Several Bill A Bill penal is called a single Bond and a Bill may be without a penalty In Debt on Obligation no Oyer being demanded it is intented a single Bill As to the Frame of the Bill and by what Words and in what Form it shall be good I have shewed before in Title The Frame of Obligations Now I shall set down some Cases as to Declarations and Pleadings on Bills A Bill Obligatory written in the Plaintiffs Book and the Defendants Hand and Seal to it is good Crook Eliz. p. 613. Fox and Wright I acknowledge my self to owe and be endebted to J. F. and W. S. in the sum of 91 l. 1 s. 8 d. to be paid the first of Novemb. following for which payment to be made I bind my self to J. S. in 100 l. Qu. Whether F. ought to bring the Action for the 100 l. or both of them for the 91 l. 12 s. 8 d. Crook Jac. 291. Foxal and Sands versus Corderoy A Bill was made in this manner Memorandum That I Will. Jethro do owe and am indebted to Edmond Hamond in the Sum of Ten Pounds for the payment whereof I bind my self c. In witness and after the In Witness it was thus subscribed Memorandum That the said Will. Jethro be not compelled to pay the said 10 l. until he recovers 30 l. upon an Obligation against A. B. c. And in the Count no mention was made of this Subscription but this appears when the Defendant prays Oyer of the Bill the which was then entred verbatim on Record Upon which the Defendant demurs because it is not mentioned in the Count it being a Condition precedent aliter of a Condition subsequent But per Curiam this which is after in witness is not part of the Deed but may be a Condition or Defeasance and so need not be contained in the Count but then the Defendant ought to have pleaded so and not demurred for this makes the Bill conditional Judgment pro Quer. 2 Brownl 97. Hamond and Jethro Bill of 68 l. with Covenant to pay it when such Bills be stated c. the Covenant being in the same Deed works as a Defeasance 2 Keb. 624. Holday and Otway Debt for 40 l. upon a Bill Obligatory and declares that the Defendant by his Bill dated c. confessed himself to be indebted to the Plaintiff in 20 l. solvend at Michaelmas next following ad quam quidem solutionem he bound himself in 40 l. and for Non-payment of the 40 l. the Action brought The Declaration is ill because it is not therein alledged that the 20 l. was not paid at the day for if otherwise the 40 l. was not due for it is not an Obligation with a Condition Crook M. 1 Car. 515. Bains and Brighton 1 Rolls Abr. 414. M. 14 Car. Mesme Case Danes and Brett But in Stiles p. 23 Car. B. R. Debt on a Bill Penal and Verdict pro Quer. It was moved in Arrest of Judgment that the Plaintiff shewed not that the Defendant did not pay the Mony at the day limited in the Bill but only saith non solvit c. 2. He declares the Defendant was bound to pay such a Sum legalis monetae and doth not say Angliae the Court over-ruled both Exceptions and the Plaintiff had Judgment Bill of 70 l. to be paid on demand it is a duty presently and there needs no actual demand Cro. Eliz. p. 548. Cap and Lancaster If the Plaintiff declares generally that he often requested c. and the Defendant demur to the Declaration per Cur. he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good demurrer because a special demand was in the Bill and no special demand alledged in the Declaration 1 Brownl Rep. 56. On a collateral promise to pay mony on demand there must be a special demand but between the Parties it is a debt and sufficiently demanded by the Action Aliter if the Mony be to be paid to a third person or where there is a penalty 3 Keb. 176. Ashenden's Case Debt on Bill to pay 50 l. on demand and on Non-payment the Defendant to pay an 100 l. Action is brought for the 100 l. the Defendant pleads there was no demand the Plaintiff demurs per Cur. the Action is a demand for the 50 l. but no cause to forfeit the 100 l. the Defendant should plead tender of the 50 l. uncore prist But where the Condition of an Obligation is to pay on demand that is a distinct deed from the Bond and there is no Title to the Forfeiture without demand But the debt here of 50 l. is not lost by not demanding therefore in Bar the Defendant must say uncore prist Judgment pro Quer. 3 Keb. p. 577. Ramsey and Rutter Debt on a Bill penal with these words To be paid as I pay my other Creditors The Plaintiff declares generally that he was indebted to him in 5 l. solvend upon Request The Defendant demands Oyer of the Bill and it was entred in haec verba and pleads an insufficient matter upon which it was demurred And this Exception was to the declaration for variance from the Bill for per Cur. he ought to declare specially according to the Bill Judgment for the Defendant Crook El. 256. Bright and Metcalfe The Defendant demands Oyer of the Bill by which it appears the Defendant and two others are bound The Defendant demurs per Cur. pro Quer. The Defendant ought to have pleaded two others sealed the Bill Obligatory who
be presented so that he would resign when the Son of J. was qualified Whereupon the Defendant entred into a Bond of 1000 Marks on Condition having first recited the Agreement that if the Defendant within three Months after request should absolutely resign the said Benefice that then c. In Debt on this Bond the Defendant pleads non requisivit which was found against him And in Arrest of Judgment it was moved that this Bond was made on Simoniacal Contract and so void But the Court gave Judgment for the Plaintiff 1. Because there was no Averment of the Simony 2. That it was not material as to the Bond because that Statute doth not make the Bond or Contract void but only the Presentation The sense of the Court in that Case was that in truth if a Man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take of such person as he shall present a Bond to resign when his Son is become capable of such Living But if a Patron take a Bond absolutely to resign upon Request without any such cause as the Presentment of a Son or to avoid Pluralities or Non-Residence or such reasonable cause but only to a corrupt end to exact Mony by this Bond from the Incumbent or attempt it tho the Bond may be good against the Obligor yet it makes the Church become void and gives the Presentation to the King It seems in this Case if Simony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was Crook Trin. 8 Jac. 248 274. John and Lawrens Sir Simon Degg p. 54 55 56. Such a Condition was in Wood and Babington's Case to resign into the hands of the Bishop of London Upon Oyer of this Bond and Condition the Defendant demurred Judgment pro Querente But per Cur. If the Defendant had averred that the Obligation had been made with intent to exact Mony make a Lease c. which in it self had been Simony then it might have been a Question whether this Bond had been good or not but upon this Demurrer it doth not appear there was any Simoniacal Contract and such Bonds might be for good and lawful ends ut supra Crook Car. 180. A Condition to resign on Request which was If Jo. Watson do and shall upon the first of Octob. next or before if the said William Baker at the Parsonage-House of Cowley shall request the same and before John Watson shall take another Benefice in due manner resign the said Rectory Parsonage or Benefice of Cowley aforesaid unto the Bishop or Ordinary of the Diocess whereby the Rectory may become void and the said William Baker may lawfully present to the same then this Obligation to be void The Defendant after Oyer pleads Resignation the Plaintiff replies he did not resign Et hoc petit c. The Defendant demurs for that the Condition is void Per Cur. it hath been above a dozen times adjudged that the Condition is good Quaere if the Resignation shall be tryed per pais or by Certificate 2 Keb. 446. Siderfin p. 387. Baker and Watson M. 20 Car. 2. B. R. In Debt on Bond for payment of Mony at a day certain The Defendant pleads it was made upon a Simoniacal Contract for the Presentation to a Benefice c. per Cur. it is no Plea because it was averred by matter debors and appeared not within the Deed and an Averment shall not be that it was paid for other causes than the Obligation expresseth More n. 729. Noy p. 72. Gregory and Older The Condition was if Web the Patron presented the Defendant and if the Defendant continued Incumbent for a year and after the year at all times within three Months after Notice and Request was ready to resign and did resign the Benefice to the Ordinary to be presented thereto again by Web and should not before resign that then c. The Defendant pleads Stat. 13 14 Eliz. and that after he was inducted he made a Lease to the Plaintiff of the Benefice for 21 years and averred the Obligation was made for enjoying the Land by Lease The Plaintiff demurs Per Cur. the Plea was good but the Averment not sufficient Judgment pro Quaer More n. 835. Web and Hargrave Against Stat. 13 Eliz. c. 20. 14 Eliz. c. 11. Of Non-Residence NO Lease to be made of any Benefice or Ecclesiastical Promotion or any part thereof and not being impropriated shall endure any longer than while the Lessor shall be ordinarily resident and serving the Cure of such Benefice without absence above 80 days in any one year And all Bonds and Covenants for suffering any such Parson to enjoy any such Benefice with Cure shall be void 13 Eliz. c. 20. 14 Eliz. c. 11. either by Parson or Curate the Lease was made to the Curate who leaseth over Qu. If the absence of the Parson shall make the Lease void 1 Leon. p. 100. St. John and Petit's Case Upon the Statute 13 Eliz. of Leases made by Parsons that upon Non-Residence for 80 days the Lease shall be void this Statute voids Bonds for Non-Residence If the Condition be that after Institution and Induction he shall at all times after be ordinarily resident and serve the Cure without being absent 80 days during any one year that he shall be Parson of the said Church this is a good Condition without Averment taken to be for a Simoniacal purpose 1 Rolls Abr. 417. Cary and Yeo. The Condition was that if the Defendant be not absent 80 days from his Benefice nor resign without the assent of his Patron then c. The Defendant pleads Stat. 13 Eliz. That all Leases of Parsons made of their Benefices where they are absent 80 days ultra and all Obligations for enjoying them shall be void and saith he was absent by the space of 80 days and saith not ultra it was held an incurable fault in the Plea Cro. Eliz. p. 88. Gosnal and Kindlemarsh Such another Case in Crook Eliz. p. 490 Earl of Lincoln versus Hoskins Such a Plea was naught 1. The Statute was misrecited tam diu where the words are tam cito 2. Because it is not alledged that he was absent for otherwise neither Lease nor Bond are void Against Statutes of Usury 13 Eliz. c. 8. 21 Jac. 12 Car. 2. c. 13. How and when such Obligations become void or not and the Pleadings thereon IF the Contract be not usurious it shall not be made Usury by mater ex post facto A Bond for 60 l. and gave Bond to pay it and 6 l. Interest at the end of the year and before the end of the year the Obligor pays 6 l. for Interest it is not Usury 1 Bulstr 17. Anonymus A Condition to pay 20 l. per annum during Life it is no Usury but an absolute Bargain had there been any provision
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. Trussâ— 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 â—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 â— Brownl p 89. Jeffry and Guy 2 Keb. 46 74. â—arch and â—lackaâ— The Condition was That wherâ— Ed. Tailor had bargained c. to the Plaintiff a Close c. and whereas the said Ed. T. hath already â—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
performance of Covenants the Breach ought to be more precise and particular than Actions of Covenants because of the Penalty yet if what is material and the substance of the Covenant be alledged it may suffice as a Covenant was that the Defendant a Bayliff should not let at large any Prisoner that should be arrested without Licence of the Plaintiff an Under-Gaoler The Breach was that the Defendant had let at large at Westminster sans licence c. such an one who was arrested but shews not the place or time of the Arrest Per Cur. he need not the Escape being the material part of the Covenant Siderfin H. 12 Car. 2. f. 30. Jenkins and Hancocks Debt by a Brewer on a Bond to perform Articles against his Clark one was that the Defendant should deliver such Ale and Beer weekly as should be delivered unto him to such Customers as he had in his Charge and to receive the Monies due for the same and should accompt with the Plaintiff every Saturday weekly for such Monies he should receive for Breach the Plaintiff assigns that the Defendant did not account with him for such Monies as he had received on Saturday the 25th c. Verdict pro Quer. Judgment was arrested for the Breach was uncertainly alledged because the Plaintiff doth not shew the Defendant had any Customers in his charge or who they were or that he had delivered Ale or Beer to them or received any Mony of them Stiles p. 473. Arnold and Floid A Covenant that he and his Executors and Assigns would repair a Mill and alledgeth that the Mill was defective in Reparations and the Defendant his Executors and Assigns did not repair it Def. demurs because he did not alledge that he not his Executors or Assigns did not repair it for if any of them did repair it the Action lies not and per Cur. it is naught But upon motion of the Court the Defendant waved his Demurrer and the Plaintiff amended Crook Eliz. p. 348. Cole and How If the breach of the Condition of an Obligation be ill assigned the Verdict shall not aid this Default Sanders 2 part 179. Hele and Wotton Kerby and Hansaker there cited Though the Action be well brought upon the Obligation yet when it appears the Condition was for performance of Covenants there can be no cause of Action without some Covenant broken and so shall not have Judgment though he hath a Verdict Hob. 14. in Sir Daniel Norton's Case Disability wherein the Obligor hath disabled himself to perform the Condition IF a day be limited to perform a Condition if the Obligor once disable himself to perform this although he be enabled afterwards before the day yet the Condition is broken as if the Condition be to enfeoff me before Michâ—mas if before the Feast he enfeoff another yet the Condition is broken 21 E. 4.55 The Condition is if he permit and suffer all his Lands c. to descend remain or revert to such an one his Son immediately after his decease without any Act c. The Obligor â—ells parcel of the same Lands though he purchase them again yet the Obligation is forfeited Benlow n. 34. p. 9. Sir A. Main by an Indenture demiseth Lands to Scot for 21 years and covenants at any time during the Life of Scot upon Surrender of his Lease to make a new Lease c. and an Obligation to reform the Covenants Sir A. Main pleads in Debt upon this Obligation that Scot did not surrender Scot replies that after the said Demise Sir A. M. had accepted a Fine sur omisance de droit come ceo and by the same Fine grant and renders the Land to the Conisee par 80 ans Defendant demurs Per Cur. 1. Sir A. M. by the Fine levied had disabled himself either to take a Surrender or to make a new Lease and so hath broken his Covenant 2. Though the first Act was to be done by Scot viz. the Surrender and Scot may surrender if the term for 80 years be the Interest of a future term yet Scot shall have his Action without making any Surrender for after Surrender Sir A. M. cannot make a new Lease which is the Effect of the Surrender he hath disabled himself 5 Rep. 20. b. Sir Anthony Mains Case Poph. 109. Benl n. 121 125. So if he disable himself to perform it in the same plight as Feoffee on Condition to re-enfeoff grants a Rent-Charge marries a Wife c. this is a forfeiture of the Condition 44 E. 3.9 b. Coke on Litt. But if the Feoffee on a Condition to re-eneoff a Stranger and after another recovers the Land against him by default yet until Execution sued the Condition is not broken 44 E. 3.9 b. One promiseth to perform an Award which is that he shall after deliver an Obligation to another in which he is bound to him without limiting any time when this shall be performed If he bring Debt on the Bond and recover and after deliver the Obligation yet this is not any performance of the Condition for he ought to deliver this as it was at the time of the Award made Tr. 15 Jac. B. R. 1 Rolls Abridg. 447. Nichlâ— and Thomas If no time is limited if the Obligor be once disabled he is perpetually disabled 21 E. 4.54 b. Vid. Cases del Disability 1 Rolls Abr. 447 448. Conditions to perform particular Covenants To make Assurance TO make such Assurance as Counsel shall advise A Condition to make to the Obligee or his Assigns so good a Lease as Counsel shall advise and the Obligee appoints him to make a Lease to J. S. he must do it for it is not as shall be advised by Counsel Per Coke if the words were he shall make as good a Lease as Counsel shall devise he ought to have brought a Lease drawn by the advise of Counsel 1 Rolls Abr. 424. 1 Rols Rep. 373. Allen and Wedgwood To make such Assurance c. as the Plaintiffs Counsel shall devise it is not sufficient to plead he made such Assurance but that the Plaintiffs Counsel devised such Assurance which he had made Crook Eliz. 393. in Hutchinson's Case One covenants to make such Assurance c. as the Plaintiffs Counsel shall advise and he pleads performance of Covenants he cannot afterwards say Consilium non dedit advisantentum in Specot and Sheer's Case Crook Eliz. 828. The Defendant covenants to assure such Lands by such Assurance as by the Counsel of the Plaintiff shall be devised the Breach assigned in this the Plaintiff caused such an Assurance to be drawn and ingrossed and put Wax to it and required the Defendant to execute it and he refused The Defendant demurs per Cur. it is no Breach because the Plaintiff himself devised it Crook Eliz. p. 297. More versus Roswel On Covenant that before such a day he would make sufficient Estate of Lands to such value to the Plaintiff for term of his Life as by the Plaintiffs Counsel
and to be inrolled within six months otherwise they will be void as to Purcâ—sors 27 Eliz. c. 4. But now by the Statute of Frauds and Perjuries the day of the month and year of the inrolment of the Recognizances shall be set down in the Margent of the Roll where the said Recognizances are acknowledged and no Recognizance shall bind any Lands c. in the hands of any Purchasor bona fide and for valuable consideration but from the time of such inrolment 29 Car. 2.1 By whom acknowledged and how BAron and Feme enter into a Statute or Recognizance this binds not the Wife albeit she survives her Husband 10 Rep. 43. 2 Inst 673. If an Infant acknowledge a Statute or Recognizance its voidable by Audita Querela during his minority but he cannot avoid it after his full age neither by Audita Querela nor Writ of Error because of Infancy only Moor n. 206. Yelv. 88. Randale and Wale Co. 2 Inst. 673. Dyer 132. and the way to avoid it must be by inspection which cannot be after his full age 1 Bulst 187 188. Infant acknowledgeth a Statute and was taken in Execution and at full Age he brought Audita Querela to avoid the Execution Per Cur. the Audita Querela shall abate he shall not avoid it it being matter of Record but if he will avoid it it must be during his minority Moor n. 196. Worsleys Case 1 Anderson 25. Noy p. 16. A Recognizance acknowledged by an Infant and he was inspected and adjudged to be within Age and thereupon had a Scire Fac. against the Conusee and upon a niâ—hil returned it was adjudged the Recognizance should be void and he be discharged whereupon Error was brought for that there ought to be two nichils returned for two nichils amount to a Garnishment and without Garnishment and Oyer of the Party to whom the Recognizance was made it ought not to be adjudged to be cancelled and for this cause it was reversed And now because the Conusor is at present of full Age and cannot have a new Writ of Audita Querela to be inspected it was moved that he may have a new Writ comprehending the first Inspection and the Judgment thereupon and shew that the first Judgment was only reversed for Error in the Proceedings and upon all the matter to be relieved and so it was done Cro. Jac. 59. Yelv. p. 88. Randale and Wale A Recognizance within the Statute 23 H. 8. c. 6. cannot be good except the Seal of the Party be to it Before whom taken THey may not be acknowledged before any other Persons but such as are appointed by the Statutes Other Recognizances besides those on 23 H. 8. may not be acknowledged before any but such as have Power ex Officio as the Judges of the Courts at Westminster or by special Commission to take them Dyer 220. Out of the Commonalty of London there shall be two Merchants chosen and sworn and before one or both of these Merchants the Recognizances may be taken Stat 14 Ed. 3.11 8 R. 2.4 The Recognizance upon the 23 H. 8. c. 6. in nature of a Statute-Staple is always to be acknowledged before the Chief Justice of the Kings Bench or Common Pleas in the Term time or in their absence out of Term before the Mayor of the Staple at Westminister and the Recorder of London All the Judges may out of Term take Recognizances in any part of England and if it be taken before the Chief Justice of the Common Pleas at Serjeants-Inn in Fleet-street out of Term its good Hob. 195. Every Court of Record of any note hath this Authority incident to it to take Recognizances for all things which concern the Jurisdiction of the Court and of all things which arise of or by reason of the Matters there depending so it is taken before the Mayor and Aldermen of London 1 Leon. 384. Holinshead and Kings Case The Custom of London to take Recognizances and the Form of the Declaration Cro. El. p. 186. Chamberlein and Thorp 1 Leon. 130 131. Where Actions to be brought on Statutes and Recognizances H. Brought Debt against W. and declared upon a Recognizance taken before Chief Justice Hobart at Serjeants-Inn in Fleet-street London out of Term and laid his Action in London whereupon the Defendant demurred The Question was whether the Action ought to be brought in Middlesex where the Recognizance is recorded or in London where it was acknowledged Now in this Case the inrolment of the Record that the Recognizance was taken before Hobert at the time and place aforesaid by which it was a Record ipso facto then and there and the inrolment is but a confirmation of the same Record and makes no change but because they both concur to the making it a perfect Record the Action may be brought in either County but by Hobert in London as the more worthy part of the Act and a Scire fac upon such a Recognizance shall be directed to the Sheriff of London and not of Middlesex but if the entry of the Record were general that the Recognizance was taken before Hobert it shall be understood in Court and then the Action shall be brought in Middlesex Hob. Rep. p. 195. Hall and Winkfield 2 Rolls Rep. 182. 1 Brownl p. 69. Allen Rep. 12. Andrews and Harborn In the Common Pleas its good both ways in B. R. it ought to be where the Recognizance is taken Stiles p. 9. Andrews Case Debt brought in the Common Bench on a Recognizance in London Cro. Eliz. Wilfords Case Statute Staple suable in the Kings Bench or Common Pleas as well as in Chancery Cro. El. p. 208. Clavel and Mallory Audita Querela in the Common Bench for that the Conusor was within Age at the time of the acknowledgment and well brought there mesme Case 1 Leon. 303. so in B. R. and the entry of the Inspection vide Cro. El. 208. A Recognizance taken by the Custom of London makes the Debt local vide 1 Leon. 130 131 284. Scire Facias SCire Facias in the Kings Bench on a Recognizance may not be general without shewing the time of the Recognizance and other particulars for it is but a Pocket Record therefore it is to shew what date it is for otherwise the Party may not know what Matter to plead and perhaps it is released or cancelled and a Man may not plead a Release after nul tiel Record Qu. 2 Siderfin p. 156 159. B. R. Alston and Body He that sueth forth a Scire fac in Chancery to defeat an Execution on a Statute-Staple shall find Surety to prosecute with effect If the Statute hath but one Seal it shall take effect as an Obligation Moor n. 520. 2 Rolls Abr. 149. Aiscue and Hollingsworth Cro. El. p. 494. contra A Recognizance is entire and being discharged in part is discharged in the whole but if the defeasance be to be paid in several Sums there an Acquittance of part is not a
to a new Scire Fac. or to Debt on Recognisance Where there is a Condition it may be returned at a day certain and so may a Scire Fac. to revive a Judgment 2 Keb. p. 396 397. Allen versus the Manucaptors of Cutler Debt lies on the Recognisance of Bail 3 Keb. 707 734. Miles and Bateman but not before a Cap. and second Scire Fac. returned and filed on Judgment in Term Cap. may be at any time on Rule four days after Judgment W. recovered against B. in Debt and B. was brought to the Bar by Habeas Corpus procured by his Bail and the Plaintiff prayed he might be committed in Execution and also the Bail that he might be received in their discharge but B. having brought a Writ of Error it could not be hanging that Hob. 116. Wicksteds Case The Scire Fac. was to shew cause why Execution si sibi viderit expedire not saying fieri non debet Per Cur. it is ill and it is not amendable 3 Keb. 190. Mannel and Coltlowe After the Return of the second Scire Fac. it is too late to bring the Principal in and that is the reason that in such case a Writ of Error for the Bail to reverse the Judgment against the Principal Debt against the Principal and Judgment on Nihil dicit but no Ca. sa issued against him afterwards two Scire Fac. were taken out against the Bail and two Nihils thereon returned and on that Judgment given against the Bail The Judgment is erroneous but the Bail cannot bring a Writ of Error causa qua supra but he shall have an Audita Querela Stiles p. 323 288. Barcock and Thompson When the Judgment is grounded upon a Scire Fec the Bail is remediless 2 Keb. 51. Reynolds and Duel There ought to be a Cap. against the Bail before he can be charged and it ought to be shewed that the Capias was returned and filed against the Bail 3 Bulstr p. 341. Calf and Bingly If the Principal be dead before the Return of the Capias this must be avoided by an Audita Querela in Judgment against the Bail 2 Keb. 51. Reynolds and Duel The Course of the Kings Bench is that Default ought to be assigned in the Principal upon the Return of the Capias before the Bail shall be charged so in Com. Banc. Qu. which cannot be if the Principal be dead If the Principal render his Body though the Plaintiff refuse to take that yet that is a discharge of the Bail Winch p. 61. Sparrow and Sowgate How and when the Bail is discharged and of the rendring the Principal and the time of doing it THE rendring of the Principal to Prison is no discharge of the Bail till the Bail-piece which remains with the Secondary be discharged c. 2 Keb. p. 2. Booth and Nortrop One may plead reddidit se well enough without averring prout patet c. for that is only filed with the Bail-piece entred into at the Judges Chamber upon which the Secondary writes a reddidit se and so the party goes to the Marshal into Custody and thence returns to the Secondary and he enters a Committimus in exonerationem manucaptorum and if this Render be before the Return of the second Scire Fac. on the Bails Recognisance it may be well enough pleaded prout patet c. and this is the Course of the Court 2 Keb. p. 237. Anonymus Per Rolls Out of Indulgence to the Bail it hath been the use of later times that if the Bail do bring in the Principal before the Return of the second Scire Fac. which was taken out against the Bail thereupon to discharge the Bail But anciently it was not so but then it was counted too late to bring him in Stiles p. 134. M. 24 Car. 1. B. R. Quatermans Case The manner of Entry upon the yielding of the Body upon the Bail and if the party or his Attorny be present he must make his Election to take him in Execution or refuse him whereof Entry is to be made Qu. If he may after take him by Casa Hob. p. 210. Welby and Canning Judgment against a Bail on Scire Fac. which was sued out and two Nichils returned after the Party had rendred himself in Execution on the first Judgment Scrogs moved to have the said Judgment set aside Per Cur. there is cause of an Audita Querela but otherwise no remedy But the Attorny ought not to sue any Scire Fac. against the Bail after the Bail-piece dischaged but before he may 2 Keb. 475. Goreham and Boxhamâ— On affirmance of Judgment against the Principal Jones prayed the Bail may render the Principal before any Scire Fac. which the Court granted and his Render here is a Render below the Recognisance being removed and it may be done before any Judge in discharge of the Bail 2 Keb. 635. Bodam's Case Gardner prayed that the Principal may be accepted to tender himself there being no Capius issued against the Principal yet a Scire Fac. and two Nichils against the Bail are returned Sed non allocatur this is cause for an Aundita Querela And were there a Scire Fac. returned the Defendant may plead it but the Bail cannot otherwise be relieved 2 Keb. 536. Staunton's Case Duport recovered Debt against Wildgoose Upon this a Capias issued out against Wildgoose and the same returned and before it was filed a Scire Fac. issued out against the Bail the Bail for his discharge did suggest an Action against Wildgoose the Principal and had his Body in Court and being in Court he moved to have Wildgoose delivered in Execution for the Debt of Duport in dischage of himself in regard that if he should die before next Term he could not plead this to the Scire Fac. but should be then charged with the Debt which was granted Note that Duport did not intend to pray the Body of Wildgoose in Execution for his Debt though present in Court but his purpose was to have had his Surety in Execution for the same the Bail perceiving this for prevention did bring the Body of Wild-goose into Cour and prayed him to be committed in Execution for the Debt in exonerationem of him which the Court did 2 Bulstr p. 352. Duport and Wildgoose Capias must first be awarded against the Principal before Scire Fac. against the Bail for the Recognisance is that the Principal should tender himself c. which is intended upon Process awarded against him Cro. Eliz. 597. Hobs and Tedcastle The Mainpernors brought Error because there was not any Cap. ad satisfac awarded against the Principal before the Scire Fac. Per Cur. a Writ of Error lies well upon the Statute of 27 Eliz. but being certified upon diminution that a Ca. sa had been awarded the Judgment was affirmed Cro. Eliz. p. 730. Cokerin's Case One was bound by the Chief Justice to appear in B. R. the Court was moved to discharge him of his appearance because
the first Scire Fac. for hereby the Plaintiff is put by his debt and the Executors may be insolvent 2 Keb. p. 127. Coopers Case Scire Fac. against B. and others as Bail for P. P. being Condemned and not rendring his Body to Prison Scire Fac. was brought against them upon this Recognizance they pleaded that P. such a day before the day in the Recognizance paid the Mony this is a good Plea in it self for the Recognizance as to them is but an Obligation upon a Condition upon which they might well plead performance but the party in the Scire Fac. upon this Recovery cannot plead it except satisfaction be acknowledged on Record for by nude payment he shall not avoid matter of Record Cro. Eliz. p. 233. Brunckhorns Case Cro. Eliz. 31. Ordway Manucaptors in Scire Fac. plead that the principal was taken by Capias and deteined till he paid the Mony payment is a good Plea but no place of payment being alledged its ill and Judgment pro querente 2 Keb. 577. Farrel and Sheen Mod. Rep. 14. Mesme Case Payment before the return of the Scire Fac. by the principal is no Plea yet before the Writ of Scire Fac. brought it is by the Bail Bail pleads payment by the principal before the Scire Fac. viz. the same day after Capias taken out it s no Plea nor saves the Recognizance 3 Keb. 349. Barford and Peel In Scire Fac. Bail pleads that the principal had entred himself before Tho. Twisden Justice c. in discharge of his Bail and the entry was Quod reddidit se in exonerationem manucaptorum hoc Paratus est verificare The Plaintiff demurs because it should be prout patet per Recordum Presidents are both ways Siderfin p. 216. Midleton and the Manucaptors of Silvester P. M. was Bail for the Defendant and before any judgment given the Plaintiff releaseth to P.M. all Actions Duties and Demands afterwards Judgment was given against the Defendant and upon his default Scire Fac. issues against P. M. who pleads the said General Release The Plaintiff demurs Per Cur. This Release shall not bar the Plaintiff for the Words of the Bail are conditional Scilicit si contingeret predict debita damna illa praefat querenti minime solvere aut se prisonae non reddere c. and it s not any duty certain till Judgment given and note diversity between a duty certain upon condition subsequent for this may be released before the day of the performance of the Condition and a duty uncertain at first and upon condition precedent to be made certain afterwards this in the mean time is but a meer possibility and may not not be released this Recognizance doth not create a duty presently but shall produce a duty after on a contingence 5 Rep. 70. Hoe and Marshal Audita Querela by the Bail after judgment against him for debt on Scire Fac. because he was within Age at the time of the Bail and by the Audita Querela he was discharged cited in Sir John Apsleys Case Cro. Eliz. 645. Yelvertons New Book of Entries p. 87. p. 155. Markam and Turner He cannot plead his Infancy to the Scire Fac. for this Suit goes in affirmance of the Recognizance and demands Execution of this at the day of the second Scire Fac. The Bail pleads nul tiel Record and then brings the Body of the principal into Court and prays that his Body may be taken in Execution Per Cur. if the Bail before or at the return of the second Scire Fac. bring in the Body of the principal his Body shall be put in Execution only but here they have pleaded and therefore if the party Plaintiff do not pray to have the Body in Execution he is not compellable to take him 2 Rolls Rep. 367. Cage and Doughty Second Scire Fac. is joint against the Bail Capias may issue out against one only for the nature of the Recognizance is not changed by the judgment in the Scire Fuc. brought upon this but that the Execution may be joint or several according to the Recognizance although the Scire Fac. was joint Siderfin p. 339. Gee versus Sir Francis Fane If three bind themselves jointly in a Recognizance Execution must go against them all and if they are bound severally there if the Scire Fac. be against all the Execution must be so too for by the Judgment they have made their election 2 Siderfin p. 12. Capias aginst the Principal and Judgment and after Scire Fac. against the Bail and Judgment thereupon the Plaintiff cannot take out one Execution of Scire Facias against ihe Goods and Chattels of the principal and Bail for there ought to be several Executions upon the several Judgments Stiles Rep. p. 290. Newton and Goddard Trin. 1651. Banc. sup Removal Error Hab. Corpus IN Scire Fae against Bail on removal of the principal by Error the Defendant pleaded the Writ of Error is yet depending this was on Bail below no Scire Fac. will be against the Bail especially out of an Inferior Court till the principal be determined Scire Fac. cannot be until Judgment be affirmed 3 Keb. 396 424. Caul and Bezar Debt brought in Inferior Court of Record and issue pro Quer. and Judgment given and had against the Manucaptors and Error brought in redditione judicii and the Record and Plea removed to this Court but not the Recognizance nor Judgment against the Manucaptors per Doddrige they have well done in removing only the Record and the Judgment against the principal and that they may well proceed to Execution and if judgment was not had against the Manucaptors after the Error brought then it ought to be removed by special Writ of Error 2 Rolls Rep. 494. Anonymus A. is Bail for B. Judgment in B. R. is given against B. B. sues Error in Exchequer Chamber there the Judgment is affirmed and Costs assessed A. shall be charged with the Judgment in B. R. but not for the Costs on the Writ of Error Noy p. 18. The Defendant was Bail in Inferior Court in Action of Debt Scire Fac. against him because the Principal did not render nor pay The Defendant pleaded that after the first Action brought and Bail found the Cause was removed by Habeaâ— Corpus and new Bail here accepted and afterwards the Cause was â—manded by procedendo and then Judgment given against the Principal The Question was if the old Bail be discharged by the Record removed Per Cur. If the Bail be here Recorded so as the Court is fully possess'd of the matter and the Term is past there the old Bail is absolutely discharged but if in the same Term the Record is remanded by procedendo it is as if it never had been removed and there is no Record of the removal thereof and the matter doth rest in the inferior Court Statu quo prius the first Bail is revived 2 Bulstr 287. Cro. Jac. 363. 1 Roll 64.
Beston and Buller Mainprise or Recognizance may be taken before an Action brought where the Cause is removed by Habeas Corpus and so is the course in B. Com. The usual and best course to remove the Record is by Mittimus out of Chancery Cro. Jac. p. 97. Hargrave and Rogers Judgment is given in B. R. against the principal and afterwards by Scire Fac. against the Bail Principal and Bail cannot join in a Writ of Error upon these several Judgments and the Bail cannot have a new Writ of Error by himself Quod coram vobis residet because the Scire Fac. is none of the Actions wherein the Writ of Error is given in the Exchequer Chamber Hobart p. 72. Forrest and Sir James Sandland Judgment is in Scire Fac. which is a Judicial Writ and it is not expressly named in Stat. 27. Eliz. Yel p. 157. Prowse and Turner Judgment is given in the Scire Fac. upon the Recognizance Error was brought upon that Judgment and the Judgment affirmed Afterwards a Writ of Error was brought upon the principal Judgment which was reversed hereupon Audita Querela is brought Per. Cur. the first Judgment reversed is no reversal of the Judgment in the Scire Fac. because it is a collateral Judgment by it self yet it is a good cause for Audita Querela for it is quasi dependent on the first Judgment and the first Judgment is the cause that he is charged by this Recognizance and it s but reason the Bail should have remedy to be discharged from the Execution Cro. Jac. p. 645. Sir John Apsley and Ive 2 Roll. Rep. 354. Legris Case Action was for 23 l. 18 s. The Bail on Recognizance was 23 l. 18. Judgment against the principal and Scire Fac. against the Bail for 23 l. 10 s. it was held Error for this mistake Cro. Eliz. p. 855. Kilborn and Trot. Judgment was given in Scire Facias against the Bail that the Plaintiff shall recover super recuperationem praedictam where it should be super recognitionem praedictam No Writ of Error lyes in Exchequer Chamber Causa qua supra neither in this Case in the Kings Bench for this is no Error in process i. e. where one process is taken for another but the Error is only in point of Judgment and no remedy but in Parliament Yel p. 157. Prowse and Turner D. brought a Writ of Error in Camera Scac. and found Sureties to prosecute with effect and for default a Scire Fac. was brought against him who appears and is in Execution Qu. If the Bail be discharged by the appearance of the Plaintiff in the Writ of Error 1 Rolls Rep. 361. Asker and Downs Mainpernors were in Action of Debt pro damnis misis and Scire Fac. issueth de debito damnis and Judgment against the Mainpernors and now a Supersedeas quia erronice fuit for they were not Sureties pro debito Dâ—ddrige ye are put to Aud. Quer. 2 Rolls Râ—p 431. Cola and Yarnon Scire Fac. against Bail upon 3 Jac. c. 8. in a Writ of Error the Defendant pleaded that the Principal did prosecute with effect and that the Judgment was reversed he ought to plead prâ—â—ret per recordum and not hoc paratus c. 1 Keb. 185. Maire and Spencer and p. 318. Borâ— and Hammond The Bail pleads the Recognizance was on Condition to prosecute Error and alledgeth performance the Plaintiff shews that Judgment was affirmed prout patet by Record and saith not unde petit debitum or executionem this being specially alledged as form in demurrer is ill 2 Keb. 581. Barret and Millward In Bail upon a Writ of Error upon the Staâ—e of 3 Jac. c. 8. It s not sufficient to render the Body but he ought to pay the Debt Cro. Jac. p. 402. Austen and Monk The not assigning of Errors is a breach of the Recognizance to prosecute with effect according to the Statute 16 and 17 Car. 2. c. 8. Siderfin p. 294. Cooper and Price But if the Party will come in and tender the principal Debt and Costs the Court will relieve him and not suffer the Plaintiff to take Execution against both and no â—stitution shall be of this Mony on this Recognizance in Case the Plaintiff do after assign Errors 2 Keble 75. Cooper and Price Scire Facias on Recognizance on 10 and 17 Car. 2. c. 8. to prosecute a Writ of Error returnable 6 May in East-Term the Defendant pleads that 〈◊〉 died 18 August and that until his death he prosecuted with effect the Plaintiff replies that the Defendant did not cause the Record of B. R. to be certified into the Exchequer-Chamber in his life-time the Defendant rejoins he was stopt by Injunction in Chancery Per Cur. the Recognizance is not forfeited 2 Keble 53 70. Hâ—chman and Corbet If one of the Principals renders himself this is no discharge of the Bail vide 3 Keble 766 776. Astree and Ballard Defeasance the notiâ— of it It signifies to defeat or undo THere is a diversity between Inheritances executed and Inheritances executory as lands executed by Livery c. cannot by Indenture of Defeasance be defeated afterwards so if a Disseisee release to a Diffeisor it cannot be defeated by Indenture of Defeasance made afterwards but at the time of the Feoffment Release c. the same may be defeated but Rents Annuities Conditions Warranties and such like Inheritances executory may be defeated by Defeasances made either at that time or any time after Co. Lit. p. 237. â— And so may Statutes Recognizances Obligations and other things executory And of Statutes Judgments and Obligations it is the usual practice to make a Defeasance of them afterwards A Defeasance is a conditional Release and a Release is an absolute Defeasance and the difference is as aforesaid between the Defeasance of a thing vested and of a thing excutory as in a Feoffment of Lands the Condition ought to be contained in the same Charter of Feoffment or in another Deed sealed at the same time with the Feoffment or otherwise the Condition is void for by the Feoffment the Estate of the Land is vested and executed 〈◊〉 the Feoffee otherwise of Judgments Obligations c. therefore the Judgment given Hill 21 and 22 Car. 2. B. R. in the Case of Fowel and Forrest was against Law it was thus Debt on Bond dated the 8th of Apr. 16 Car. 2. The Defendant after Oyer of the Condition pleads That after the making of the Obligation viz. the same day and year the Plaintiff by his Deed of Defeasance shewed forth had promised and engaged that if before the last day of J. 〈◊〉 next ensuing he should not produce Testimonieâ— to prove that the Monies mentioned in the Conditionâ— was a true Debt and that the Defendant before the making of the said Obligation had promised to pay this then the Obligation should be void c. and avers that the Plaintiff did not proâ— any Testimonies to make such proof as aforesaid
Weston versus Plowden Condition If the Defendant and his Wife should appear such a day at the Palace Court c. The Defendant upon Oyer pleads That he himself did appear at the day prout patet per Record ' and that he was not Married at the time of the Obligation nor ever after Per Cur. it 's no Plea for he is estopped to deny that he had a Wife Allen p. 13. Paine and Shelltrop Recital in a Bond is an Estoppel to say the contrary but if Issue be tried contrary it 's good As Non damnif pleaded in Debt on Bond with Condition to pay for Meat Drink c. The Plaintiff replies Quod hospitavit on which the Defendant takes Issue quod non hospitavit and Ruled good after Verdict 1 Keb. p. 344. Holt and Harder Debt on Bond to perform Covenants specified in an Indenture betwixt A. and B. The Defendant pleads there was no Covenants Per Cur. this being generally of all is well Contra If it were to perform any certain Covenants but the party is estopt to say there is no Indenture but he must set forth the Indenture it self But the Plaintiff shewing the Indenture if any Covenants be therein the Jury must find for the Plaintiff 1 Keb. p. 381. Brazier and Acton Condition That a Stranger shall release all his Right to the Plaintiff The Defendant pleads that the Stranger had no Right The Plaintiff demurs Per Cur. he is estopt and the Plaintiff must release whether he have Right or no 2 Keb. p. 471. Doughty and Neale Debt on Sheriff Bond to appear in B. R. according to custom at the Suit of M. in Debt The Defendant pleads there is no such custom in B. R. to appear to an Ac etiam Billa He is estopt to plead this 3 Keb. 160. Forth and Ward versus Walker Condition to pay and satisfie out of the Profits of the Coal-Mines clear The Defendant pleads there were no clear Profits The Defendant is not estopt by the Bond to plead this being general 3 Keb. p. 466. Howard and Wych Condition to pay a Legacy devised by the Last Will of J. S. The Defendant pleads it 's true J. S. did by his Last Will give the said Legacy but saith that J. S. did revoke that Last Will and after died and by the later left nothing to the Plaintiff Demurs because being intended a Bond made after the death of J. S. the Defendant is estopt by the Condition of the Bond to say there was no such Last Will especially no time of either Will being mentioned Which the Court Agreed And if the Bond were before J. S. died the Defendant hath undertaken and must pay it at his peril 3 Keb. 303. Bachwell and Barjew Mod. Rep. 113. Condition to pay Mony yearly according to the form and effect of the Indenture made between the Plaintiff and Defendant The Defendant pleads there was no such Indenture He is estopt to plead so 1 Brownl 57. Fitch and Bissye The Defendant was obliged to make an Obligation to appear in B. R. at a day prefixed in the Writ The Defendant pleads there was no day prefixed in the Writ for his Appearance He is estopt to plead thus 1 Brownl 91. Andrews and Robins If a man be bound to pay an hundred Pounds that J. S. owes to him he cannot plead that J. S. doth not owe him 100 l. Per VVilliams in Andrews's Case 1 Brownl 41. Condition to perform things for which he was bound in a Recognizance He is concluded to plead that he is not bound in any Recognizance 2 Rep. 33. Doddington 1 Rol. Rep. 83. Fletcher and Farrer Condition was That if the Defendant do not commence and prosecute any Suit in any Court Spiritual or Temporal against the said A his Wife but shall from henceforth during the Natural life of him and A. his Wife use and maintain the said A. as his lawful Wife to all intents that then c. The Defendant pleads he had not brought any Action c. after the Obligation and that before the said A. was married to him she was married to J. S. who is yet alive for which cause he cannot maintain and use the said A. as his lawful Wife Upon which he Demurs Per Cur. The material part of the Condition did consist in the first part and the Defendant having pleaded an issuable Plea to that it 's not material if he plead to the Later part or not And if his Justification be insufficient the Plaintiff ought not to have demurred upon it But the Court held the Justification good and he is not Estopped to plead the special Matter of her former Marriage because she is called Wife in the Condition for he may confess and avoid it For she may be his Wife to some purposes but not to use her as his lawful Wife Mo. N. 652. Phratt and Planner One is bound to J. S. to enfeoff him of the Manor of D. in Debt upon this Bond he shall not say he had not such a Manor of D. Aliter if one be bound to enfeoff me of all his Lands in such a County 21 Ed. 4.54 b. Pleadings IN treating on this I shall lay down some general Rules and Diversities and apply cases thereunto and afterwards speak of special Pleas as Acceptance Release Payment c. and particularly how and where Non est factum may be pleaded and also of Foreign Pleas. Though in all the precedent Cases I have had an Eye still to the Pleadings under the proper Titles and shall make reference thereto as occasion shall be As to the Rules of Pleading I shall consider Of Pleading or Performance generally and where it must be pleaded specially and particularly In what cases it must be shewed how and where performed and done Of the Certainty of Pleading and where it must be pleaded according to the express words of the Condition or Covenant and where further than the express words Of the partes Placitorum I shall observe some diversities which will better be understood in the application of the following Cases Qui bene distinguit bene docet 1. There is diversity between Pleading in the Negative and in the Affirmative 2. Between Pleading to Negative Covenants and to Affirmative Covenants 3. Between a Condition precedent and subsequent 4. Between a Condition to do a Collateral act as to make a Feoffment render Account c. and where it is to pay Mony 5. Where the Mony in the Condition is a collateral Sum and where it is parcel of the Obligation 6. Between a Condition Copulative and Disjunctive 7. Between payment or performance by or to a Stranger and payment or performance by the Obligor to the Obligee 8. Where an Obligation is void and where voidable 9. Between a delivery to the party himself and delivery as an Escrow 10. Between acts to be done by a Condition which are Transitory or Local 11. Between a Condition void against Common Law or Stature Law 12.
that the Mony was demanded 1 Brownl p. 71. After Imparlance in Debt sur Bond the Defendant shall be received to plead he was always ready to pay Winch. p. 4. Doct. placitandi 388 389. A Bond to pay 500 l. The Defendant pleads after Imparlance Tender at the day place and that none was there to receive it and that he is yet ready to pay The Plaintiff demurs because he doth not plead touts temps prist and although he tendered it at the day whereby he saved it for the time yet if he doth not plead touts temps prist it shall be intended he hath forfeited his Obligation Q. If it be a good Plea Vid. Cro. Jac. p. 617. Steward and Coles The Defendant pleads Tender at the day and Touts temps prist The Plaintiff received the principal sum in Court and Judgment to acquit the Defendant of the sum received And the Plaintiff to have Damages alledgeth a demand of the Mony from the Defendant and thereupon it was demurred and Adjudged against the Plaintiff For if the Plaintiff would have Damages he ought not to receive the Mony but to suffer it to remain in Court for after Judgment Quod eat inde sine die no Issue can be taken Cro. Jac. 126. Harrold and Clothworthy Cro. El. p. 73. Allen and Andrews where he need not plead Uncore prist where an Obligation is made and afterwards a Defeazance is made thereof if he pay a lesser sum c. he needs not say Touts temps prist for by the Tender he was discharged of all Cro. Eliz. 755. Cotton's Case Debt on Bill to pay 50 l. on demand and on Non-payment the Defendant to pay 100 l. Action is brought for the 100 l. The Defendant pleads there was no demand The Plaintiff demurs and per Cur. the Action is a demand of the 50 l. but no cause to forfele the 100 l. But the Defendant should have pleaded tender of the 100 l. and Uncore prist But on Bond on Award to pay on demand being Collateral it s lost sans demand therefore no Uncore prist need be But where the Condition of an Obligation is to pay on demand that is a distinct Deed from the Bond and there is no Title to the Forfeiture sans demand but the Debt of 50 l. here is not lost per not demanding 3 Keb. 577. Remsee and Rutter Condition was that whereas the Defendant was Executor to M. D. that if the Defendant should perform fulfil c. the Will of M.D. in all Points and Articles according to the true intent and meaning thereof that then c. and pleaded further that the same M. by his Will bequeathed to J. S. 3 l. He pleads as to the said 3 l. he is and always was ready to pay the same to J. S. if he had demanded it The Plaintiff Demurs Per Cur. the Plea is well For this Obligation the Condition being general to perform the Will had not altered the nature of the payment of the Legacy but the same remains in such manner as before payable sur Request and not at the peril of the Defendant 1 Leon. p. 17. Fringe and Lewis A. is bound to B. to pay 10 l. to C. and A. teners to C. he refuseth the Bond is forfeited for the Obligor having taken upon him to pay it his Refusal cannot satisfie the Condition So to enfeoff a Stranger and he offers to enfeoff him and the Stranger refuseth the Obligation is forfeit Aliter if the Feoffment had been by the Condition to be made to the Obligee or to any other for his benefit or behoof there tender and refusal shall save the Bond. But if A. be bound to B. with Condition that C. shall enfeoff D. if C. tender and D. refuseth the Obligation is saved for the Obligor hath undertaken to do no act but that a Stranger shall enfeoff a Stranger Co. Lit. 209. a. Non est factum In what cases Non est factum is a good Plea and in what cases and where a special Non est factum may be found IN every case where the Obligation is void he shall conclude Non est factum As a Feme Covert shall plead Non est factum for its void by her So where a Deed is razed or interlined so where the Obligor was not Lettered Otherwise where the Deed is only voidable for there he shall shew the Special Matter and conclude Judgment si actio 1 H. 7.15 Downe's Case As an Infant pleads at the time of making the Bond he was within Age he shall not conclude issint Non est factum but Judgment si actio When the Deed is voidable and so remains at the time of the Pleading as in case of Sealing a Bond by an Infant or Duress here he cannot plead Non est factum but it must be avoided by Special Pleading with conclusion of Judgment si actio 5 Rep. 119. Whelpdale's Case When an Obligation or other Writing is by Act of Parliament enacted to be void the party who is bound cannot plead Non est factum but must plead this Special Matter and conclude Judgment si actio As on Bond made to the Sheriff against 23 H. 6. cap. 10. or a Bond made against the Statute of Usury 5 Rep. 119. Whelpdale's Case Hob. p. 72 166. In all cases when the Obligation was once a Deed and after before Action brought becomes no Deed either by razure addition or other alteration of the Deed or by breaking off the Seal In these cases the Defendant may safely plead Non est factum for at the time of the Plea which is in the Present Tense it was not his Deed 5 Rep. 119. Whelpdale's Case If the Condition of an Obligation be altered or interlined this shall avoid the Obligation as well as the Condition Aliter in a Defeazance 28 H. 8. Dyer 27. b. In Debt on Bond The Special Verdict was That the Defendants were bound to the Plaintiff being Sheriff in 60 l. Noverint nos c. teneri B. Winchcombe Armig ' in 60 l. c. with Condition to appear and after the Delivery these words Vic' Com' Oxon ' were interlined without Notice or Command of the Plaintiff Et utrum factum praedict ' sit factum praedict ' Henrici and Resolv'd per Cur. 1. When a lawful Deed is razed by which it becomes void the Obligor may plead Non est factum and give the Matter in Evidence for at the time of the Plea pleaded it is not his Deed. 2. When any Deed is altered in a Point material by the Plaintiff himself or by any Stranger without the privity of the Obligee be it by addition razing interlineation or tractation of a Pen through the midst of any Material word by this the Deed becomes void As if one be bound in 10 l. and after Sealing 10 l. is added to make it 20 l. it s void So if the Obligee himself alter the Deed by any of the said ways though it