of Exeter and Star A Condition to appear in B. R. where the Process is returnable c. the Defendant said in facto that he had appeared secundum formam c. Et hoc petit c. there was a Repleader awarded for it must be tried per the Record A. is bound to appear such a day c. and A. at the said day goes to the Court but there no Process is returned then the Party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance Vide the Form of Entry in such Case if the other Party pleaded nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court of Common Pleas cannot write to the Justices of the Kings Bench to certifie a Record hither 1 Leon. p. 90. Bret and Shepard Debt upon a Sheriffs Bond Jones for the Bail prayed the Principal being now in Person may be admitted to plead discharging th Amerciaments which is the course of the Court where the Prosecution is fresh but where the Defendant in the Original Action i. e. the Principal is become insolvent per Cur. the Bail Bond is the only remedy and they will not discharge that on the ordinary Rules but in this Case because the Bail appeared on the very day of the return and the default is the Plaintiffs own and the Bond not above a year old paying the Amerciaments and Costs the Bail was discharged and the Principal admitted to plead 2 Keble 545 553. Flood and Williams If the Defendant appears not to the Sheriffs Bond according to the Condition thereof the Plaintiff may by leave of the Sheriff sue the Bond in the Sheriffs Name but it s at the Plaintiffs Election to amerce the Sheriff Stiles Pract. Register p. 221. When Bail is put in de bene esse as Bail taken in a Judges Chamber is the Plaintiff cannot sue the Sheriffs Bond till it be refused or set aside but he ought to except against it in the Judges Chamber 1 Keblâ— 478. Anonymus The Court cannot compel a Sheriff to assign his Bond the Party was arrested and through his default in not returning his Writ the Defendant died Per Cur. in this Case he shall not take advantage of his own wrong but shall now assign the Bail Bond or pay the utmost Amerciaments 2 Keble 388. Hill and Browning A Bail Bond was discharged upon motion the Mony being paid before the return of the Writ and appearance ordered 3 Keble 316. Randuls Case In Det sur Bond the Defendant pleads Stat. 23 H. 6. and shews that V. was in Execution and the Bond made for his deliverance against the Statute The Plaintiff replies tempore confectionis of the said Bond V. was at large absque hoc that he was in Prison tempore confectionis c. The Traverse is not good for one may be in prison and make a promise to make a Bond for which he is enlarged and within an hour after he makes the Bond the same is within the Statute it ought to be absque hoc that it was made pro deliberatione 2 Leon 107. Bowes and Vernon 2 Keb. 512. Die and Adams The Condition was if Thomas Manningham keep the Sheriff without damage against our Lord the King and one Th. P. and at all times be at the Commandment of the said Sheriff as a true Prisoner and appear before the Justices c. then the Obligation to be void The Defendant pleaded the Statute of 23 H. 6. and that the Body of Tho. Mannigham was in Execution upon a Recognisance and that the Sheriff made the Obligation for the Delivery of the said Thomas Manningham and demanded Judgment si actio i. e. if the Plaintiff ought to maintain his Action this is no good Conclusion of the Plea he ought to have concluded issint nient son fait For the Statute saith it shall be void and if it shall be void then it is void from the beginning and then it is not his Deed. And farther the Defendant had not wisely concluded his Plea for this special Conclusion had straitned the Defendant so that if the Obligation be void for any other cause the Defendant shall not have benefit of it and yet because it appeared to the Judges on the matter in Law that the Plaintiff had no cause of Action the Court gave Judgment against him for the Obligation is void by the Letter of the Statute for it makes void Obligations taken in other manner which extends to avoid Obligations for bayling those which are contained in the 2d Branch as those in Execution c. Plowd 66 67. Dive and Manningham Yet the Condition was that the Defendant should appear in B. R. to answer in a Plea of Trespass and satisfie the Damages The Defendant pleads the Statute of 23 H. 6. that the Bond was made for his enlargement and issint not his Deed. The Plaintiff demurs specially upon the Conclusion of the Plea which ought to be Judgment si actio and agreed the Plea to be naught Allen p. 58. Leech and Davies Det sur Obligat dated 25 Sept. The Defendant pleads a Ca. sa was awarded against B. who was taken on it 30 Sep. and that the Obligation was made for the enlargment of B. The Plaintiff demurs and had Judgment because it appears the Bond was made before the Arrest and so could not be avoided by 23 H. 6. but he ought to have pleaded that with a primo deliberat after the Arrest Noy 23. Collins and Phillips Det sur Bond by the Sheriff dated 13 Junij the Defendant demanded Oyer of the Condition which was that if he appear here Veneris prox post tres Trin. and pleads Veneris prox post tres Trin. was 14 Junij and that he was imprisoned by the Plaintiff till 19 Jun. and that the Obligation supra fuit primo deliberat per le def 19 Junij absque hoc that this was delivered as his Deed before the 19th of June The Defendant demurs Per Cur. this is not a good Traverse it ought to have been absque hoc that this was delivered as his Deed before die Veneris prox post tres Trin. For if the Traverse supra be allowed the Plaintiff shall be excluded from answering to the time alledged of the Return although it be false Siderfin p. 300. Courtney and Phelps 2 Keb. p. 108 109 122. mesme Case The Defendant pleads to the Sheriffs Bond that that there was no Writ ever delivered to the Sheriff and so would avoid it per Stat. 23 H. 6. The Sheriff after the Writ sent out but before delivery takes Security which per Cur. he may if the Defendant will give it 1 Keb. 554. Brumfield versus Penhay The Defendant pleads Stat. 23 H. 6. and that he was in Custody by Warrant of a Writ returned Veneris post Oct. Pur. The Plaintiff replied the Defendant was taken by a Warrant on a Writ returned Sab.
Obligations and Conditions and of avoiding them An Award was that the party shall pay unto a Stranger or his Assigns 200 l. before such a day the Stranger befor the day dieth and B. takes Letters of Administration Per Cur. the Obligor shall pay the Mony to the Administrator for he is the Assignee and so if the Assignes had been left out 1 Leon. p. 316. Mony awarded to be paid to a Stranger if the Stranger will not accept of the Mony the Obligation is saved 3 Leon. 62. Norwich and Norwich If the Award be ill of your own shewing then you have no cause of Action and so you cannot have Judgment though the Defendants Bar be not good Stiles 136. Wood and Clemenee If the Plaintiff shews the Award but assigns no Breach he shall not have Judgment though he hath a Verdict for the Obligation is not for any Debt for this is guided by the Condition which goes in performance of a collateral thing viz. of an Award And though the Defendant had not answered to the Breach if it had been assigned yet the Court ought to be satisfied that the Plaintiff had cause to recover otherwise they shall not give Judgment and though the Verdict is found for the Plaintiff yet this fault in the Replication is matter of Substance not aided Yelv. p. 152 153. Barret and Fletcher An Obligation to perform a void Award is void Latch 207. 10 Rep. 131. b. If a Man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Mony he may have his Action of Debt for the Mony and declare upon the Award and afterwards he may have another Action upon the Obligation for not performing the Award per. Câ—r 1 Brownl Rep. 55. If one countermand the Authority of his Arbitrator as he may he shall forfeit his Obligation 8 Rep. 82. a. Vynior's Case A Condition is annexed to the Award as paying so much Rent yet Debt upon Bond lies 〈◊〉 Non-payment Cro. El. 211. Parsons and Frowd A Condition to stand to the Award of J. S. The Defendant pleaded the said J. S. had arbitrated that the Defendant should pay to the Plaintiff 10 l. and he said he had paid it to the Plaintiff Wise who had received it The Plaintiff demurs and Judgment pro Quer. Payment to the Wise not being good 1 Leon. 320. Frowd and Bâ— Recognisance to stand to the Arbitrament of A. and B. who awarded that Robins should have the Land yielding and paying 10 l. per ann Rent is behind The Plaintiff brought Debt The Defendant pleads the special matter and concludes Judgment if the Plaintiff shall have Execution against him Per Cur. it is ill for here is not any Execution of the same Debt but an Original Action of Debt port and he ought to conclude Judgment si actio These words yielding and paying 〈…〉 not a Condition for it s not knâ— to the Land by the Owner himself but by a Stranger sâ— the Arbitratoâ— But it is a good clause to make the same an Article of the Arbitâ—ment which the Parties are bound to perform upon the penalty of the Recognisance and this Rent shall not cease by Eviction of the Land 3 Leon. p. 58. Treshal and Robins An Award was that the Defendants Brother J. for whom the Defendant was bound to perform the Award should pay the Plaintiff 30 l. viz. 20 l. at the Annunciation and 10 l. at Michaelmas after and shewed that the said J. had payd the 20 l. and as to the 10 l. he pleaded that J. died before the Feast of M. The Plaintiff demurs Per Cur. the Bond is forfeited because the Sum awarded by the Arbitrament is now become a Duty as if the Condition of the Bond had been for payment of it 2 Leon. f. 155. Kingwel and Chapman Debt on Bond to stand to an Awards and the Defendant pleads Nil debet On Demurrer it was excepted the Action is grounded on the Award and therefore the Award ought to have been brought into Court which is not done for ought appears here Per Glyn It is not necessary to produce it in Court though he must plead the Award in Writing for the Action is not brought upon the Award but upon the Submission for the Award is but the Inducement and the Court hath nothing to do with the Award but to see whether it be in writing or not For a Deed that I confess must be produced in Court that the Court may judge whether it bind the party or not and you your selves have here set forth the Award in Pleading In all Cases where things cannot be demanded but by Deed the Deed must be produced but here is no Deed in this Case for an Arbitrament under Seal is no Deed it is but a Writing under Hand and Seal Stiles p. 455. Dod and Herbert Condition to stand to the Arbitrament of J. S. If the Defendant pleaded Nullum fec arbitriâ— the Plaintiff by Replication ought to shew the Arbitration in certain and assign a Breach for the Plea of the Defendant is so general it doth not offer any Issue therefore the Plaintiff in his Replication ought to lay a Breach or else there appears no cause of Action to the Court and the offer of the Issue comes from the Plaintiff Award is if J. pay to D. 10 l. then D. shall assure to J. the Mannor of Sale D. pleads in Debt upon this Bond J. paid him not 10 l. it is a good Replication for J. to say he had paid him 10 l. without saying over that J. D. had not assured the Mannor for the Plaintiff had given a direct Answer to the special matter alledged in Bar Yelv. 24. Baily and Taylor But this was after a Verdict Vid. 1 Sanders p. 103. Hayman and Gerrard The Plaintiff ought to assign a Breach in his Replication because the Defendants Plea Nul tiel award is general but if in such Case the Defendant 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 or other special matter alledged by the Defendant without assigning a Breach 1 Brownl Rep. 89 90. Condition to perform an Agreement already set down by J. S. The Defendant pleads no Agreement was made ill Plea Aliter had it been to perform all Agreements 1 Rolls Rep. 430. King and Perseval Condition to perform an Award they awarded the 24th of March the Defendant to pay at Mich. following 20 l. The Defendant pleads the Plaintiffs Release of all Actions and Demands made to him the 10th of Apr. Per Cur. the Release is no Baâ— of the Plaintiffs Action Aliter if had been a Debâ— or Duty presently Cro. Jac. 300. Tynan and Bridges In Debt on Bond to perform an Award Defendant pleads no Award Plaintiff sets it forth which was that the Defendant should pay Mony and they give mutual Releases to the time
Obligatorium concessit nor any Writing mentioned in the former part of the Declaration Sed non allocatur The Writings are produced and the Defendant by his Plea shews it 's an Obligation with Condition and it appears to the Court that the Plaintiff hath a just Debt and good cause to recover Cro. Car. 209. Sir William Courtney's Case In Debt sur Bond the Defendant confess'd the Action and because it 's not said in the Declaration Hic in Curia prolat ' it was adjudg'd a fault in Matter and Error Cro. Jac. 32. Dawbenny and Bannister Vid. le noveâ— Statute If a Bond be made to one and he doth not say in the Bond it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him tho' not expressed in the Bond 1 Brownl 72. Anonymus If any of the Bond be received it must be acknowledged in the Declaration Debt on two Obligations one was 100 l. the other 110 l. and he brought an Action generally of 200 l. upon these Obligations and acknowledgeth satisfaction of 10 l. but sheweth not of what Obligation it was that he acknowledgeth the payment of 10 l. it s no Error 1 Rols Rep. p. 423. Hale and Malyâ— vid. 3 Bulstr p. 244. Plaintiff declares upon a Statute Obligatory Solvendum upon Request and on Oyer it appears to be payable at a day certain Incurable fault Crook Jac. 316. Fox and Inkes Debt upon a Bill of 14 l. Solvendum 〈◊〉 cum 6 l. upon Account between them the Plaintiff only declares for 14 l. and good for that which comes after the Solvendum is void Crook Eliz. 537. Woodward and Parry Declaration is upon three several Obligations and upon Oyer of the several Conditions it appears one of the sums in the Condition was payable after the Bill exhibited Issue was joyned on Conditions performed and Verdict for the Plaintiff and intire Damages and upon Release of Costs and Damages Judgment was given for the two first Bonds only For tho' the Bill be an entire sum yet by the Court it appeareth they be as several Demands and Suits Hobart p. 178. Andrews and Delahay 1 Brown 68. Mesme Case One Declaration is naught After appearance the Plaintiff pleads de novo Noy p. 63. Rossiter and Bussey In B. R. the first Declaration was in Debt on Obligation 5 Feb. and the second was on an Obligation dated 15 Feb. and the pleading and Judgment was thereupon and held good for it was held as a Declaration without an Original which being after Verdict was ayded Crook Jac. p. 89. cited in Sir Michael Dormers Case Debt on Bond dated 13 Feb. The Defendant imparles and after a second Declaration was made and therein he declares on an Obligation dated 15 Feb. Defendant pleads non est factum it was amended and made according to the first Declaration for the first is the principal and the Plea always refers thereto Crook Jac. p. 105. Burrel versus Sir William Bowes Debt by Baron and Feme on an Obligation made to the Feme dum sola fuit and the Declaration is ad damnum ipsorum its good Stiles 134 Anonymus In Debt due upon a Bond or Contract there needs not a special Demand to be laid but licet saepius requisitus is sufficient Aliter if it were due by Arbitrement cum requisitus fuisset for then there must be a special demand Cro. Jac. 640. Waters and Bridges 1 Brownl 30. In inferior Court of Record 50 l. in figures is Error Stiles p. 165. Joson and Beale A thing that doth not intitle the Plaintiff to Action need not be contained in the Count. If the Condition be Endorsed or Subscribed it need not be contained in the Count but if it be contained before the in Witness then it ought to be contained in the Count. If a Man be bound to pay 10 l. when the Obligee carries 200 Load of Hay to his House there the Condition is precedent and it ought to be contained in the Count What comes after the in Witness be it a Proviso or Memorandum it may be as a Condition or Defesance and need not be contained in the Count 2 Brownl Rep. 97. Hammond and Jethro Be it known that J. C. bind me to R. in 40. l. to discharge and save harmless the said R. against W. Solvenâ— tali die c. there the Count is good generally without saying the Defendant had not saved harmless 22 Ed. 4.42 One ought to declare specially according to the Bill the Bill was to pay as I pay my other Creditors The Plaintiff declared generally that he was indebted to him in 5 l. Solvend ' upon request It s ill Cro. Eliz. 256. Bright and Metcalf Declaration for Outlandish Mony DEclares upon a Bill Obligatory wherein the Defendant was obliged to pay him â—00 Gilders of legal Mony Polonish viz ad valorem 220 l. legalis monetae Angliae and that the Defendant had not paid unto him the said 220 l. monetae Angliae nor the said 600 Gilders monetae Poloniae per quod Aâ—tiâ— accrevit c. Defendant pleaded non est factum and found pro Querente and the value of the Mony was enquired by the Jury viz. that the value of the 600 Gilders Polish was at the time of the Bill and now 220 l. The Action is well brought in the deâ—inâ— because he is to recover the value and the demand is not of any sum certain Cro. Jac. 617. Rands and Peck Cro. Eliz. 536. Bayshaw and Plaine Latch p. 4 77.8â— Wards Case The Court cannot compel the Plaintiff to set forth the Condition in his Declaration but till he doth it on Oyer demanded the Defendant shall not be compelled to plead Stiles 125. Sir Charles â—ot and Plunket On Oyer demanded unless the Plaintiff will shew the Bond the Court will set aside the Judgment as irregular 2 Keb. 275. Beadly and Beach When the Plaintiff counts on Bond it ought to remain in Court unless the Defendant after Oyer demanded suffer it to be delivered out then on non est factum the Court will not order it to remain there on prayer of the Defendant although anciently it hath been so 1 Keb. 486. Williams and Hulleâ— In Debt on Bond to deliver up Goods in a Schedule annexed per Cur. on demand of Oyer of the Condition they shall have also Oyer of the Schedule being all as one Dâ—ed but Oyer of Indenture for performance of Covenants shall not have Oyer of the Covenants but yet must set them forth and if he have no counterpart he may move the Court and obtain it 2 Keb. 4. Waterman and Adams Variance between the Obligation and Declaration DEbt on Bond the Plaintiff declares of a 1000 l. to be paid to him and the Defendant demands Oyer and he was bound to J. R. to be paid to J. K. to the use of J. R. The Defendant Demurs the Solvend ' to the Stranger is void and the Court seem'd
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 â—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
' its ill and per Curiam the Action for the Debt depending in this Court cannot be Attached 3 Leon. 210. After Imparlance Foreign Attachment not to be pleaded 3 Leon. 322. Babington's Case The Defendant pleads to Debt on Bond of 80 l. that the Plaintiff pendant the Bill brought against him a Plaint in London and there by Custom had attached 40 l. of a Debt due to the Defendant in the hands of J. S. in satisfaction of 40 l. due on this Bond and demanded Judgment of the Bill Per Cur. it s a Plea in Bar and not in Abatement for the Plaintiff for this part is to be barred for ever and this receipt of parcel is lawful and a Recovery in Law Aliter of a bare Acceptance Cro. Eliz. p. 342. May and Middleton The Debt follows the person and it s therefore called a Foreign Attachment because let the Debt rise where it will its attachable if the Debtor cometh or the Mony be brought into London 2 Keb. 320. Mollam and Hern. W. was bound to K. in a Recognizance of 400 l. and K. was bound to W. in a Bond of 100 l. W. according to the Custom of London affirmed a Plaint of Debt in the Guild-Hall against K. upon the said Bond of 100 l. and attached the Debt due by himself to W. in his own hands and now K. sued Execution against W. upon the Recognizance and W. brought Audita Querela and it was allowed 1 Leon. 297. Wallpool and King An Obligation for an 100 l. on Condition to pay 50 l. before the 25th of March. The Defendant pleads a Foreign Attachment of the 50 l. the 17th of February in the hands of Watts and a Retorn that it was attach'd but there was no Scire facias till April after Before the day of payment a Creditor of the Plaintiffs scilicet c. attaches the 50 l. and gives Security in the Court according to the Custom to pay the Debt if it be disproved within the year and day The Plaintiff demurs as being no sufficient Attachment being before the Mony was due The custom of London is to attach a Debt before its due contrary to 3 Cro. 184 yet it may not be levied till after the time of payment of the Obligation there is only a seizure and a Cesset Executio till the Mony be due Also the party against whom the Execution is sued is not to give Security but to pay the Mony but the party that sueth the Execution is to give it to return the Mony if the Debt be disproved within a year and a day Also the Judgment had there is pleadable Also per Cur ' its a good Bar for the whole but if it were for part as 20 l. this Record of the Attachment shall be pleaded in Bar for part i. e. pro tanto Siderfus p. 327. 2 Keb. p. 202. Robins and Standard Vide Co. Intr. 142. Ra. Entr. 158. Pleading to the Jurisdiction IN Debt on an Obligation in the Palace-Court averring neither of the parties were of the King's Houshold After Judgment on Non est factum the Defendant assigns for Error that the Plaintiff was the King's Brazier To which the Plaintiff demurred because the Defendant by the Record is estopt to say that but should have taken Issue on the Averment Which the Court agreed as on alledging a Cause infra that was out of the Jurisdiction this must be pleaded and cannot be assigned for Error 3 Keb. 372. Newnan and Rivet Condition to deliver a certain quantity of Tin at a certain place within the Jurisdiction of the Stannary And the Defendant pleaded to the Jurisdiction of the Court that it was a Tin Cause The Charters are to the Cause and shall not be restrained to persons though the Defendant be not alledged in the Plea to be a Tinner It was allowed 1 Rol. Rep. Pinson and Smale Obligations Conditions Recovery pleaded in Bar. THree are bound pro toto in solido the Obligee had Judgment to recover against one of them and afterwards sues an Action against the others this Recovery is not a Bar because no satisfaction of the Duty but Execution is a good Plea 4 H. 7. 8. b. Co. Rep. 6.46 a. Higgin's Case As long as Judgment remains in force a man shall not have an Action on the same Bond for the Debt is changed into a higher nature of Record Cro. El. p. 817. Preston's Case An Action of Debt brought by the Executor on Bond made to the Testator The Defendant pleads that the Testator in vita sua in Curia de Banco hic recuperavit debitum praedict ' cum 40 s. pro misis without alledging the Execution quod quidem Recordum recuperationis was removed per breve d'Error ibid. remanet minimè reversat ' The Plea was good 6 Rep. 44. Higgin's Case Aliter if Recovery be by Debt sur Bond in the Courts per Justices Ibid. And though the Recovery be erroneous yet so long as it remains in force it ought to be executed and when it is Reversed the Obligee is restored unto his new Action upon the said Obligation Ibid. If a man bring Debt upon Bond and he is barred by Judgment so long as the Judgment stands in force he cannot have a new Action So when he hath Judgment in an Action upon the same Bond so long as the Judgment remains in force he shall not have a new Action Ibid. The Defendant pleads the Plaintiff brought another Action upon the same Bond in London to which the Defendant there pleads Non est factum and so found there And upon this Verdict the Entry was That the Defendant should recover Damages against the Plaintiff and the Defendant be without Day but no Judgment that the Plaintiff Nil capiat per Billam And so per Cur ' no Judgment to bar the Plaintiff 1 Brownl p. 81. Levet and Hall Vid. 7 Cro. Jac. p. 284. Debt sur Bond of 600 l. vers K. in Bristol The Defendant pleads a Recovery in B. R. upon the same Bond against the same Defendant per the Plaintiff Et hoc paratus est verificare The Plaintiff Replies Nul tiel Record unde petit Judicium debitum suum praedict ' sibi adjudicari The Defendant Rejoyns Quod habetur tale Record ' prout per Record ' in B. R. apparet Per Cur ' he that will joyn Issue sur Record ought to say Et hoc paratus est verificare prout per Recordum illud vel verificare prout Curia hic consideravit and so are all the Presidents yet in Error Judgment was affirmed for the Defendant in the Writ of Error and that the first Judgment should be affirmed notwithstanding it was prout per Record ' illius plenius liquet Siderfin p. 329. Knight and Pitt Vide 2 Keb. 250 278. Two were joyntly and severally bound In Debt brought the Defendant pleads the Plaintiff recovered against the other the same Debt and had Execution It s a good
Dudeney and Collier In Debt on a Bill of 40 l. to be paid at H. which is out of the Jurisdiction of the Court of Jernemutha being in the County of the City of N. which is Error the Count being upon payment generally 1 Keb. p. 378. Annison and Perkin A Condition to perform Articles one whereof was to pay Mony which the Plaintiff should disburse in composition of a Fine set on the Defendant by the Judges of Assize The Plaintiff averred he had paid 50 l. ad recept suam apud Westm and saith not in Com. Midd. The Defendant demurred the Averment was ill 2 Keb. 204 Ansly and Anslow Condition to pay Mony upon Marriage THE Condition was to pay 100 l. to the Plaintiff on his Marriage-day The Defendant pleads he had no notice given him of his Marriage-day Ill Plea for no notice need to be given 2 Bulstr 254. Selby and Wilkinson A Condition to pay 300 l. in consideration of a Marriage between the Plaintiff and his Daughter which 300 l. was to be paid within three Months after that he shall come to the age of 18 years or within 18 days of the Marriage after notice made which shall first happen Per Cur. the notice shall relate to both because it is uncertain which of them shall happen first Latch p. 158. Read and Bullington In Debt on a Bond to pay Mony upon Marriage the Jury may try Wife or not Wife but not the Legality of Marriage and it need not be alledged that the party was married at the time of the Bill The Issue here is not legitimo modo maritatus as in Dower which shall not be tryed by a Jury but in Debt on Bond it doth not draw the Right of Matrimony in question 1 Keb. 105. Tr. 13 Car. 2. Glascock and Morgan Conditions to pay Mony concerning Children or Bastards THE Condition was for the payment of Childrens Portions when they married or came to the age of 21 years The Defendant pleads that he had paid the same cum quam cito they came to their full age generally It is an ill Plea he ought to have shewed the time when they came to age and when he paid this Mony that so upon this Issue might be taken 2 Bulstr 267. Haulsey and Carpenter A Man was bound to pay to the three Daughters of a Stranger 10 l. a piece at 21 years of age The party being sick makes his Will and in performance of the Covenant for which he was bound in an Obligation devised to each of the Daughters 10 l. to be paid at 21. One sues for her Legacy and a Prohibition was granted for the intent of the Devise was he should not be twice charged More n. 368. Margery Davies Case A Condition for the payment of 120 l. at the full age of J. B. if it be demanded The Defendant pleads the Plaintiff did not demand it after the full age of J. B. Judgment for the Plaintiff for the bringing the Action is a sufficient demand Crook Jac. p. 242. Dockray and Tanning The Condition was to pay 10 s. weekly secundum ordinem fact per Justiciar c. for keeping a Bastard Child The Defendant sur Oyer pleads nullum talem ordinem fecerunt Judgment pro Quer. Otherwise if it had been secundum ordinem faciend Latch p. 125. Jermin and Randal for the one is an Estoppel to the Defendant the other is Executory Noy p. 79. vide plus sub Tit. Conditions to save harmless A Condition to pay Mony upon proof or if such a thing be proved then c. A Condition to pay within three months next after his Arrival from Rome 10 l. the Obligee proving the same by Testimonial or Witnesses the proof might be by Witnesses or Testimonial under the Seal of several Persons at Rome Moor n. 307. The Condition was If such Lands be proved to be parcel of the Mannor of Dale if then c. the Defendant pleads they were not proved to be parcel of the Mannor and demurs Per Cur. he ought to have pleaded they were parcel of the Mannor so as proof might have been made in this Action Cro. Eliz. fol. 232. Elve and Sabe Judgment pro Quer. Vide plus sub Tit. Apprentices Bonds Special Conditions for payment of Mony on Contract Agreements Contingency c. and pleadings thereon A Condition to pay 300 l. to the Plaintiff and to add 3 l. to every Hundred if it were demanded the Defendant pleads he paid the 300 l. and that he added 3 l. to every hundred secundum formam Conditionis praedict Verdict pro Quer. but Judgment pro Defendente upon Arrest because the Plaintiff ought to have alledged a Demand and this being matter of substance without which the Plaintiff had no cause of Action it was not helped by the Issue or Verdict though the words secundum formam Conditionis seem to imply a Demand Allen p. 55. Hill versus Armstrong A Condition if the Obligor pay to the Obligee 100 l. within one month after notice of his return from Constantinople into England that then c. the Defendant pleads no notice was given to him of the return c. Verdict pro Quer. Error assigned because it is not averred that the Mony was not paid and then no cause of Action but per Cur. it s no Error for when the Defendant said he had no notice this is a confession per nient dedire that he had not paid it and Issue being taken upon a collateral Matter and found for the Plaintiff he shall have Judgment Cro. El. p. 320. Griffin and Spencer The Condition was to pay 40 l. per ann quarterly so long as he was to continue Register to the Arch-deacon of C. the Defendant saith the Office was granted to A. B. and C. for their Lives and that he enjoyed the Office so long as they lived and no longer and that so long he paid the said 40 l. quarterly the Plaintiff replies The Defendant did enjoy the Office longer and had not paid the Mony the Defendant demurs per Cur. the Replication is not double for the Defendant cannot take Issue upon the non-payment of the Mony for that would be a departure from his Plea in Bar Mod. Rep. p. 227. Gaile and Bets. A Condition if they or either of them two Obligors upon request made should pay for so many Barrels of Beer as should be delivered to them so much for every Barrel as should be agreed upon between them c. the Plaintiff sets forth he had delivered so many Barrels of Bear and agreed for 10 s. per Barrel which Mony he had requested of one of the Obligors he may require payment of one or the other 3 Bulstr p. 210. Ratcliff and Clerk A Condition to pay so much per dolium breach is assigned for the Defendants non-payment of so many Tuns and three Hogsheads which per Cur. is ill the Condition being not to pay secundum ratam as in Needlers Case of
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
1 Rolls Abr. p. 425. Q. 1. A Condition to perform Covenants in a Lease one was That he should enjoy such Lands let to him quietly without interruption and the Plaintiff in his Replication sheweth in facto that the Defendant the 20th of March 30 Eliz. had disturbed him and in that assigned the Breach the Defendant by Rejoynder sheweth that in the Indenture there was a Proviso that if he paid 10 l. the 31 of March 30 Eliz. that the Indenture and all therein contained should be void and alledged he paid 10 l. at the day but this was after the disturbance supposed and the Plaintiff demurs Judgment pro Quer. for by the Covenant broken before the Condition performed the Obligation was forfeited and it s not material that the Covenants became void before the Action brought but by Wray if the Proviso had been that upon the payment of the 10 l. as well the Obligation as the Indenture should be void â—lâ— for then the Bond was void before the Action brought so where a Parson made a Lease for years in which were divers Covenants and after he became non resident by which the Indenture became void yet he may maintain an Action of Covenant for a Covenant broken before his non Residency Cro. Eliz. p. 244. Hill and Pilkington Dyer 57. Bylones Case The Condition was If the Obligee his Heirs and Assigns shall and may lawfully hold and enjoy a Mesuage c. without the let c. of the Obligor or his Heirs or of every other Person discharged or upon reasonable request saved harmless by the said Obligor from all former Gifts c. the Defendant pleads no request was made to save him harmless Judgment pro Quer. because the Defendant hath not answered to all the the Conditions viz. to enjoying of the Land and there were two Conditions viz. the enjoying and saving harmless Moor n. 756. Creswell and Holmes Debt to perform Covenants in a Lease one was for quiet enjoyment against all claiming Title the Plaintiff assigns for Breach that a Stranger entred but saith not habens titulum Hales habens titulum at that time would have done Dyers Case is another entred claiming an Interest but that is not enough for he may claim under the Lessee himself If the Covenant had been to save him harmless against all lawful and unlawful Titles yet it must appear that he that entred did not claim under the Lessee himself Mod. Rep. 101. 3 Keble 246. Norman and Foster Hob. 34. Tisdale and Essex Moor 861. The Condition was if neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of such Lands by indirect means but by due course of Law The Defendant pleads that neither J. S. nor J. B. nor J. G. did disturb the Plaintiff by any indirect means but by due course of Law Q. if Plea good 2 Leon. 197. Dighton and Clark K. was seized and leased for years to J. H. Husband of Isabel and J. H. being so possessed by his Will devised that the said Isabel should have the use and occupation of the said Lands for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired J. H. died Isabel entred to whom the said Kidwilly conveyed by Feoffment the said Lands in Fee and covenanted that the said Lands from thence should be clearly exonerated de omnibus prioribus barganiis titulis juribus omnibus aliis oneribus quibuscunque Isabel married and the Son entred Per Cur. this possibility which was in the Son at the time of the Feoffment though it was not actual yet the Land was not discharged of all former Rights Titles and Charges by the Marriage of the said Isabel it s become an actual Charge and the Term is not extinct by the acceptance of the Feoffment 1 Leon. p. 92. n. 120. Hamington and Rydear I am bound in a Statute and afterwards sell my Land with Covenant prout supra here the Land is not charged but if the Condition in the Defeasance be broken so as the Conusee extends now the Covenant is broken 1 Leon. p. 93. ibid. On Covenant to enjoy absque legali molestatione of the Defendant the Defendant pleads performance the Plaintiff replies by entry of the Defendant Lessor which is intended tortious and and so no breach for which cause the Defendant demurs Per Moreton Entry and lawful Entry are all one as to the Lessor and Rainsford conceived a general Entry no Breach the general Covenant being restrained by special Covenant against any lawful let 2 Keb. 717. Lee and Dalfton Debt on Bond to perform Covenants one of which was That the Plaintiff should not be interrupted in his possession of certain Lands by any Person that had lawful Title and particularly that he should not be interrupted by one Thomas Antony by vertue of any such Title the Defendant pleads performance the Plaintiff replies 1 No. 20 Car. The Defendant made the Lease to the Plaintiff and 3 No. he entred and that 17 Aug. 20 Car. before the Defendant made a Lease to Antony for years yet to come who 20 Aug. 20 Car. entred the Defendant pleads the Lease to Antony was on Condition of re-entry for non-payment of Rent and that before the Lease made to the Plaintiff the Rent was behind legitâ— demandat secundum formam Indenturae and he re-entred and made the Lease to the Plaintiff upon general Demurrer per Cur. the Demand was not sufficiently alledged for he ought to set forth when and where it was made that the Court might know if it were legal but for a â—w in the Plaintiffs Replication because he alledged his Entry after the Lease made to Antony so that it appears not he was interrupted by him the Opinion of the Court was against the Plaintiff Allen p 19. Colman and Painter Debt on Bond conditioned that if the Obligee his Executors and Assigns from the time of the Obligation may enjoy such Land c. The Defendant pleads that post obligationem until the day of the Bill the Plaintiff had enjoyed that Land Plaintiff demurs 1. Because the Defendant doth not say a die confectionis scripti obligatorii semper post non allocatur a Bar is good to common intent and it shall be taken he always enjoyed it unless the contrary be shewn which must come on the Plaintiffs part 2. Because he does not plead the Plaintiff and his Assigns enjoyed it non allocatur for it shall not be intended the Plaintiff made an Assignment unless he himself had shewn it Judgment pro Def. but it was moved to have the Plaintiff discontinue his Suit for otherwise he should be barred of his Debt whereas he had good cause of Action and the Court adjourned it till next Term that in the interim he might discontinue Cro. Car. 195. Harlow and Wright The Plaintiff
this Verdict is found against the Defendant the Plaintiff is not estopt to say that the Deed shewn is not the Deed of the Baron and Feme but he is estopt by the Condition to say that there is not any such indenture Cro. Eliz. p. 796. Ship and Steed Release Pleaded If before the breach of any of the Covenants the Obligee releaseth the Covenants and afterwards one of the Covenants is broken the Obligation is not forfeited for there is not now any Covenant which may be broken and so the Obligation is discharged but if the Release had been made after the Covenant broken aliter 3 Leon. 69. What is confessed by pleading Conditions performed Obligation to perform Covenants the Covenant was If the Plaintiff pay the Defendant 100 l. at Michaelmas that the Defendant would pay him yearly after 10 l. for his life and averred he did not pay him 10 l. yearly but did not mention the payment of 100 l. by him which was assigned for Error Per Cur. it s no Error because the Defendant by pleading Conditions performed had confessed the payment of the 100 l. to him by the Plaintiff Moor n. 474. Goodwin and Isham If the substance be answered though not the very words its good as the Condition was if he perform all the Covenants Conditions Agreements and Articles and when the Defendent cited them in his Plea which are all the Covenants Conditions Agreements and leaves out Articles and so hath not pleaded performance of the Condition but per Cur. Agreements is all one with Articles and if many words contain one thing in signification if he answer to them in substance its good and the Condition was If the Defendant and T. and their Assigns perform c. and he pleads he and T. had performed but saith not he and T. and their Assignes had performed c. and it may be they had assigned it over but per Cur. it appeareth not there is any Assignee and it shall not be intended except it be specially shewn and a Bar it good to common intent Cro. Eliz. p. 255. Eniot and Cole Where an Act is to be done according to a Covenant he who pleads the performance of it ought to plead it specilly but where no Act is to be done but only a permittance permifit is a good Plea one Covenant was That the Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have free ingress c. at his pleasure the Defendant pleads quod permifit D. querentem habero intrationem exitum c. in tales tâ—rtâ— quales tunc jacobant frisca secundum conâ—uetudinem pâ—triae he need not shew in certain what Lands did lie fresh and it shall come on the Plaintiffs part to shew in what Lands the Defendant non permifit 1 Leon. p. 136. Littleton and Perne The Defendant is not bound to plead performance of any more than his own Grants and Covenants vid. Dyer 26 H â— 27 b. One Covenants with J. S. that he shall enjoy the Land and farther that A. a Farmer of the Tithes shall pay 8 l. per annum and is bound to performance in Debt on Bond its good to plead performance of the Covenants ex parte sua perimplend for this implies the Farmer had paid the 8 l. and express mention of that needs not be Dyer 23 El. 372 373. In Debt for non-performance of Covenants the Plaintiff ought to shew how the Covenants are broken and if it be in non-payment of Rent he ought to shew in certain what day the Rent was arrear 9 H. 6.18 Debt to perform Covenants one was to many the Plaintiffs Daughter before such a day 2. That Sir E. S. and his Wife should levy a Fine of such Lands c. 3. Whereas he granted a Lease of c. to S. that he had not made any former Grant nor would afterwards make any Grant thereof without the Plaintiffs assent the Defendant quoad the last Covenant in the negative pleaded that he had not made any former Grant of the Lease nor had made any Grant after the Obligation without the Plaintiffs assent Et quoad omnes alias conventiones that he had performed them the Plaintiff demurs 1. Because the Covenant to levy a Fine is an Act to be performed by a Stranger and to be performed on Record and it s not sufficient to plead general performance 2. Because the Covenant being in the disjunctive he ought to shew specially which of them and not generally 3. He pleaded he did not grant without the Plaintiffs assent which is negativa prognans Per Cur. for these Causes the Plea not good Cro. Jac. 560. Lee and Luithil Issue Trial. COvenants in a Lease of an House the Defendant pleads he was an Alien born at Paris in France and an Artificer and so by 32 H. 8.16 the Lease void the Plaintiff replies The Defendant was not an Alien and Artificer the Defendant demurs Per Cur. Alien and Artificer are but the same Person and but one Breach 2. This Issue cannot be tried because the Replication should have been that he was a Denizen born at Islington in England and that he is no Alien generally 2 Keble 315. Freeman and King 98. On performance generally pleaded the Plaintiff may reply with particular Breach hoc paratus c. and leave the Issue to the Defendant contra on Condition to pay Mony at several days the Defendant pleads particular payment the Plaintiff replies he did not pay such a day certain hoc paratus c. it s ill 1 Keble 759. Charleton and Fine The Defendant pleads Covenants performed the Plaintiff assigns a Breach in not delivering up an House the Defendant rejoins before the end of the Term the Plaintiff gave him leave to continue it longer Per Cur. it s a departure the parol Agreement was pleaded in Bar 1 Keb. 678. Brooks and Lake The Defendant pleads the Obligation was for performance of Covenants and shews what and alledgeth farther that in the said Indenture is a Proviso si aliqua lis vel controversia oriatur imposterum by reason of any clause that then before any Suit thereon the Parties should choose four indifferent Persons for the ending thereof which being done the Obligation to be void and in facto saith that Controversy did arise the Plaintiff demurs per Cur. because the Defendant hath not shewed what strife and what clause the Bar is not good for it extends not to every Covenant only where strife ariseth 1 Leon. 37. Parmort and Griffin A Condition for performance and sets forth the Covenant and shewed farther that the Plaintiff after sealing procured J. S. to rase the Indenture and shews wherein and so the Indenture became void Per Cur. it s against the Defendant the Rasure not being in a place material an the Rasure trencheth to the advantage of himself who pleads it and if the Indenture had become void by the Rasure the Bond
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.
762. Cantor and Hurtwel Bond to collect all the Amerciaments he Pleads he collected all and good being in the Affirmative aliter if the Condition be of matter of Record as to be Non-suit in all the Kings Courts 2 H. 7.15 a. 4 H. 7.12 b. Certainty THe express certainty regularly ought to be pleaded according to the express words of the Condition and to shew the performance 15 Eliz. Dyer 318. vid. Kel p. 60. Covenant in a Lease that he hath full Power and Authority to Demise the Land Lessee brought an Action on this Covenant it sufficeth him to say the Lessor had not full Power and lawful Authority and this Assignment of breach is good for he persues the words of the Covenant Negative and the Lessee is a stranger to the Lessors Title and therefore the Defendant ought to shew what Estate he had in this Land tempore dimissionis by which it may appear to the Court he had full Power and lawful Authority to Demise 9 Rep. 60 61. Bradshaws Case A Man is bound in the Copulative that he and his Assigns persolverent omnia onera He ought to Plead that he and his Assigns have done this 28 H. 8 Dyer 27. b. Condition to pay 10 l. within six Months after the Marriage of the Plaintiff the Defendant Pleads the Plaintiff was not Married the Plaintiff replies he was Married Defendant demurs because it doth not appear but the Defendant hath paid the 10 l. Adjudged for the Defendant he ought to answer the Condition Aliter after Verdict Siderfin p. 340. in Hayman and Gerards Case Though it be a good Plea regularly to the Condition of a Bond to persue the words of the Condition and to shew the performance Yet Coke said there was another Rule that he ought to Plead in certainty the time and place and manner of the performance of the Condition so as a certain Issue may be taken As Condition to pay 30 l. to H. S. J. S. and A. S. tam cito as they should come to the Age of 21 years The Defendant Pleads he paid those sums tam cito as they came to Age The Plaintiff Demurs because it s not shewed when they came of Age and the certain time of the payment It s an ill Plea So if the Condition be for performance of Legacies in such a Will he Pleads performance generally not shewing the Will nor what the Legacies are Cro. Jac. 359 360. Hally and Carpenter If I am bound to enfeoff you of all the Acres in such a Fine and I shew the Record of the Fine and averr that I have enfeofft you this is good But if it be of Acres in Middlesex he ought to shew the Acres in certain 28 H. 8. Dyer 28. Conditions to deliver all Writings concerning such Lands it s a good Plea to say generally that he has delivered all the Writings Doct. placitandi 62.4 H. 7.12 vid. pluis for Conditions performed pleaded generally and not shewing the certainty 12 H. 8.6 b. Sir John Cutts Case 12 H. 7.14 b. In pleading Negatively he ought to Traverse all the Condition as if a Man be bound to pay for so much Bread as the Defendant shall deliver at the common Hall whensoever he shall be requsted by C. he shall say he was not requested by C. to pay to him any Mony for any Bread delivered at the Common Hall c. 4 H. 7.12 Where the Party is bound with Condition to warrant Land the Defendant shall say expressly that he had warranted the Land for pacificè gavisus is no Plea 30 H. 8. Dyer 42. Condition was if neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said Lands by any indirect means but by due course of Law then c. The Defendant Pleads that neither J. S. nor J. B. nor J. G. did disturb the Plaintiff by any indirect means but by due course of Law Q. if it be not a Negative Pregnant i. e. a Negative which implies an Affirmative Not disturbed by any indirect means such a Plea had been good or not disturbed contra formam conditionis Adjurn ' If I am bound I shall not go out of Westminster Hall till night but tarry in the Hall till night or that I will not return to Serjants Iun the direct way but by St. Giles in an Action brought on that Bond I may plead in totidem verbis 2 Leon. p. 197. Dighton and Clark Where a certain Duty accrews by the Deed at the beginning as by a Covenant Bill or Obligation to pay Mony this ought to be avoided by a matter of as high a nature viz. by Deed vid. suprà tit ' Accord pleaded and 9 Rep. 78. Peytoes Case Sometimes matter un fair shall avoid an Obligation as well as a matter in Writing as to say the Feme was Covert de Baron c. 4 H. 7.15 The Defendant Pleads after the Mony became due he and the Plaintiff did by parol submit to an Award and sets forth the Award and performance per tender Per Cur. it s an ill Plea Submission by parol cannot discharge a Debt by Specialty Stiles 350. Ludding and White Coxal and Sharp 1 Keb. 937. Inter alia a Bond may be put in Arbitrament yet in such case the Arbitrament cannot be pleaded in Bar of the Obligation Q. if the party hath his remedy on the promise to perform the Arbitrament A Bond inter alia may be Arbitrated and mixt with other things And where the Award is good the party must resort to Action thereon 2 Keb. p. 734. Morris and Creech A Special Plea in Bar is always to be answered with a Special Replication in the point Whereas such a Mortgage was made of such Land to J. S. c. if therefore the said Land at the day be redeemed and discharged from all Tithes c. the Defendant Pleads the Close was not Mortgaged to J. S. The Plaintiff replies it was Mortgaged he need not alledge it was not redeemed J. S. is bound to Marry the Daughter of B. at Easter next J. S. Pleads in Bar she died before Easter it s a good Replication to say she was living at Easter day without saying he had not Married her Yelv. p. 24. Bayly and Taylor Vid. good Learning as to this Rule supra Titulo Assignment of a Breach In Monox and Warleys Case It was taken as a Rule that the Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment altho' the Issue be found for him as in Debt on Bond against A. and B. A. Pleads Non est factum B. Pleads the Release of the Plaintiff and it s found the Deed of A. and the Plaintiff hath Released to B. The Plaintiff shall never have Judgment for upon the Verdict it appears he hath no Cause of Action 2 Leon. p. 100. Pleas in Abatement IN Debt on Bond the Defendant demands
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 5â— 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 to come and say that it was first delivered 17 Sept. 2 Jac. which is a year after is no good argument but naught without taking a Traverse absque hoc that it was made the 3d of Sept. 1 Jac. 1 Brownl p. 104. Green and Eden Yelv. p. 138. id Case Debt on Bond 18 Car. 2. to pay 300 l. in six Months next after the Defendants Marriage The Defendant pleads primo deliberat 22 Car. 2. and that no Marriage was Post 22 Car. 2. hucusque per Curiam though there can be no primo deliberat before the day of the date yet after it may on Goddard's Case Coke But Condition to pay Mony three Months after the precedent Marriage is impossible and so the Condition single and good 3 Keb. 332. Newland and Dendy In Debt sur Bond which in truth was made to A. H. of London Merchant to the use of A. H. his Factor beyond Sea now Plaintiff the Defendant pleads that A.J. sealed and delivered a Bond to A. H. of London Merchant absque hoc that he sealed to A. H. the Plaintiff the Plaintiff demurs being but the general Issue Not guilty if Evidence be that its sealed to the use of the Plaintiff it is all one as if sealed and delivered to him 3 Keb. 738. Hawtry and White If the Defendant plead the Delivery after the Condition impossible to be performed then is the Obligation become single Yelv. p. 138. Green and Eden The day of the Delivery of a Deed is not traversable unless it be upon a special Cause as if one be bound in an Obligation dated primo die Octobris to pay 10 l. at the Feast of All-Saints next after the delivery of the Obligation and the Obligation is not delivered till the 2d day of November In Debt upon this Bond the Plaintiff declaring of a Deed delivered primo Octob. the Defendant pleads that it was primo deliberat 2 do Novemb and that he tendred the 10 l. at the Feast of All-Saints then next ensuing absque hoc that the Deed was delivered primo Octob. Jones Rep. 66. Bishop of Norwich versus Conrwallis If Evidence be that it was sealed to the use of the Plaintiff it s all one as if sealed and delivered to him 3 Keb. 739. in Hawtry's Case Delivery as in Escrow AN Obligation cannot be delivered as an Escrow unto the Obligee himself but it may be delivered to another to the use of the Obligee as an Escrow For the delivery of it to the Obligee himself and his receiving it makes it work as a Deed in the very instant of the delivery of it according to the effect of the Deed but being delivered to another to the use of the Obligee it cannot operate so because he is no party to the Deed nor can take any thing by it and doth but only take it as an Escrow and as an Instrument to deliver to the Obligee at such time and in such manner as the Obligor shall direct and if he deliver it otherwise the Obligor may plead non est factum Stiles Pr. Reg. 222. Therefore an Obligation may not be delivered as an Escrow to the party himself upon Condition to be his Deed upon special delivery for this is absolute being made to the party himself for delivery is sufficient without speaking words and when the words are contrary to the Act they are of no effect Cook Lit. 36. a. 9 Rep. 136 137. Thoroughgood's Case Vid. Hob. p. 246. Holford and Parker More n. 836. Williams and Green Though the Plea that he delivered it to the Plaintiff as an Escrow to be his Deed upon performance of Condition be not good yet being pleaded and replyed to and admitted for good and Issue being joyned and found false the Verdict is good and Judgment well given Vid. Crook Jac. 85. Blunden and Wood. If the Deed be delivered to the party himself first as his Deed upon Condition the Deed is absolute but when it is first delivered as an Escrow though to the party himself it is not his Deed till it be performed One brings Obligation to me and prays me to deliver it as my Deed and I say do such a thing and take it as my Deed otherwise not It is clear it is not my Deed until the thing performed here the Condition is precedent so as it was not his Deed until it was performed and therefore a Conditional Delivery may be averred sans writing but if once delivered as his Deed it cannot afterwards be defeated it the Condition be not in writing Quaer Crook Eliz. 835. Hawksland versus Gatchel contra Crook El. p. 884. Williams and Green The Defendant pleads the Writing was his and delivered to one W. as a Schedule until certain Conditions performed and then to deliver it to the Plaintiff ut scriptum and saith not ut factum yet per Curiam all is one in Construction of Law 2 Keb. 690 733. Twiford and Barnard The Defendant pleads it was delivered as an Escrow on future Condition and so non est factum hoc paratus est verificare The Plaintiff demurrs specially quia minus apte conclusit Per Curiam sic non est factum is a full Issue and the hoc paratus is ill Judment pro Quer. 2 Keb. 805. Goslin and Broad id p. 836. Edwards and Web. Of later
he is not bound to pay before Request 1 Rolls Abr. 438. Qu. A Condition to make assurance before the 10th of March and if the Obligee refuse the assurance and shall make Request to have 100 l. in satisfaction of it then if upon such Request within five Months after he pay it then c. he refused the assurance and ten years after he makes Request to have the 100 l. Per Cur. it is good and he may make Request during his Life Crook Eliz. p. 130. Boyton and Andrews Id. Case 1 Leon. p. 185. The Condition is to do a thing upon Request the Plaintiff must make Request to the person and not by Proclamation giving notice of the Request 1 Rolls Abr. 443. Gruit and Pinnel Request to c. Bridgm. Rep. 39. Allen and Wedgwood 1 Rolls Rep. 373. Crook Eliz. p. 62. Gallies Case Keilway 95. Place of Payment or Performance Where a Place is limited A Condition to pay Mony at London the Action laid in Shrewsbury 2 Leon. 37. Jay's Case If the Condition of an Obligation be to appear coram Justiciariis apud Westm he ought to appear in B. and not in B. R. Musgrave and Robinson 1 Rolls Abr. tit Condition 445. If a place of Payment be limited by the Condition he is not bound to pay this in any other place 17 E. 3.16 1 Rolls Abr. 445. If a place be limited by the Condition where it shall be performed the othere is not bound to receive this in another place If the Condition be to come to A. at Dale to aid him with his Counsel it is not performed if he tender his Counsel at the day at another place 1 Rolls Abridg. p. 446. In Debt on an Obligation to pay at the House of Y. in Woodstreet magna The Defendant pleads payment at the House of Y. generally and the Visne is from the Parish of Woodstreet generally Verdict and Judgment pro Quer. It is no Error it is only in Fact and should have been pleaded 1 Keb. 440. Ashburnham versus Braham The Condition was if he paid such a Sum of Mony at Newton Petrarch that then c. The Defendant pleads payment at the day at Newton praedict the Venire Fac. being at Newton only A Ven. de novo was awarded Crook Jac. p. 326. Dennis Case A Condition to pay 10 l. at S. such a day or 10 l. at S. such a day tender at D. the first day saves the Condition 22 Ed. 4.52 1 Rolls Abr. 444. A Condition to pay 10 l. at D. if the Obligee accept this at another place it 's a good performance sans fail 1 Rolls Abr. 456.11 Where no Place is limited IF no place be limited in the Condition for payment of the Mony he must tender the Mony to the person of the Obligee but if the Condition be to deliver 20 Quarters of Wheat or 20 Load of Timber c. The Obligor before the day must go to the Obligee and know where he will appoint to receive it and there it must be delivered If the Condition be to make a Feoffment it is sufficient to tender it upon the Land for there the Livery must pass Co. Lit. 210. b. If the Obligee be out of England he is not bound to seek him ibid. If a Man be bound to pay 20 l. at any time during his Life at a place certain the Obligor cannot tender the Mony at the place when he will for then the Obligee should be bound to a perpetual attendance but the Obligor must give the Obligee notice that at such a day he will pay the Mony and the Obligee must attend there to receive it for if the Obligor then and there tender the Mony he shall save the penalty of the Bond for ever Co. Lit. 211. a. But if the Obligor at at any time meet the Obligee at the place he may tender the Mony ibid. There is a difference between a place of payment limited in the Obligation and a place limited in the Condition of the Obligation For if I am bound to you in 20 l. to be paid at D. if I pay it to you at another place this shall not excuse me but if I am bound in 20 l. on Condition that I shall pay it you at D. if I pay this 20 l. at another place it is good if you receive it 11 H. 7.17 9 H. 7.20 b. Lord Cromwels Case If the Mony be paid at any other place and received before the day it is good Cook Lit. 211. a. A. is bound to B. that C. shall enfeoff D. such a day C. is bound to seek D. to give him notice and request him to be on the Land to receive the Feoffment ibid. Debt upon a Bond for payment of Mony there being no place named in the Obligation where it shall be paid The Defendant pleads the Plaintiff was beyond Sea at the day of payment and saith not uncore prist Per Cur. this a good cause of demurrer Siderfin p. 30. H. 12 13 Car. 2. B. R. Hobson and Rudge A Condition for a common Chirurgeon to instruct his Apprentice in his Trade and to keep him in domo sua propria servitio If he send him a Voyage to the East Indies to exercise his Trade it is a Forfeiture but he may send him to any place in England to a Patient Aliter if it were a Merchants Apprentice 1 Rolls Abr. tit Condition p. 445. Coventre and Boswel The Lessee is bound by an Obligation to pay the Rent the Lessee is not bound to seek the Lessor to tender it on the Land Hobart p. 8. Baker and Spain In Debt on an Obligation to pay at the House of one Y. in Woodstreet magna The Defendant pleads payment at the House of Y. generally and the Visne is of the Parish of Woodstreet generally Verdict pro Quer. and Judgment It is no Error it is only in Fact and should have been pleaded 1 Keble p. 440. Ashburnham versus Braham Debt in an inferior Court the Condition was for the payment of Mony at a time but no place was limited in the Condition for the payment thereof Judgment pro Quer. 'T was Error because there appears no place of payment So that by that it cannot appear whether the cause of Action lyeth within the Jurisdiction of the Court where the Action was brought or not therefore it should have been made appear by some part of the Record that the Mony was to be paid within the Jurisdiction of the Court which is not here done and therefore Judgment erroneous Stiles p. 2. Masterman's Case Judgment in the Court at Barnstaple upon an Obligation and assigns for Error that the Condition was to pay Mony at W. which is not within the Jurisdiction of the Court Per Rolls if it appear by the Declaration that the Mony was to be paid out of the Jurisdiction of the Court the Judgment is not good and it is not necessary to swear this Plea Stiles p. 225.
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 Curiâ— 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 compeâ— 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 â— 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. â—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. Clâ—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
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 enfeofâ— 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. Laâ— 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 Stileâ— 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 Bargainoâ— 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
Session pacis in Comitâ— praedict tenend ad stand â—ct in Curia siquis versus cum loqui voluerit de diversis feloniis transgressionibus unde idem R. B. judicatus existit ut dicitur ad respondend dicto Domino Regi de iisdem prout debet dat c. Recognisance of Bail Kanc. ss Memorandum Quo â—quinto die A. D. de c. G. H. de c. J. K. de c. personaliter venerunt coram nobis C. D. E. F. Justiciar dicti Dom. Regis ad pacem suam in Com. suo praedict conservand assignatâ— recogneverunt se deberâ— eidem Dom. Regi modo forma sequen viz. praedict A. B. 20 l. legalis c. uterque praedictorum G. J. 10 l. confiâ—lis â—nita de seperalibus bonis catalliâ— terris tenementis sâ— seperalis fieri le vari ad opus usum dicti Dom. Regis hared successor suorum si defult fieret in performatione conditionis indors Condition for appearance for Felony or suspicion of Felony The Condition of the Recognizance is such That if the within bound A. B. do personally appear before his Majesties Justices of Gaol-delivery at the next general Gaol-delivery to be holden for the within named County of Kent then and there to answer to our Sovereign Lord the KING for and concerning the felonibus taking and stealing of c. or for suspicion of his felonious taking c. wherewithal he standeth charged before c. and to do and receive c. and do not depart the said Court without licence for the same then c. If it be to appear at Sessions say Do personally appear before his Majesties Justices assigned to keep his Peace in the within named County of K. at the next General Sessions of the Peace to be holden for the said County of T. in the County aforesaid then and there to answer c. If the Party thâ— is bound to appear on Surety for the Peace be so sick that he cannot appear the Justices in their discretion have forborn to certifie or record such Forfeiture or Default and that they have taken Sureties for the Peace of some Friends of his present in the Court till the next Sessions If the Husband be bound that he and his Wife shall appear at such a Sessions and that they shall keep the Peace in the mean time c. and at the day the Husband appears alone Qu. if the Recognizance be forfeited A Supplicavit out of Chancery directed to the Sheriff and Justices to bind F. and two others to the Good Behaviour the Sheriff returns that the two non sunt inventi and quoad F. that such a Recognizance was taken before the Justices and that he had broken the Good Behaviour and F. pleaded to Issue in Chancery the Record being sent into the Kings Bench per manus Dom. Cancellaris thereupon a Writ of Nisi Prius issued and found for the Defendant this Recognizance was not well certified into the Chancery for they who take the Recognizance ought to certifie it Cro. Jac. 669. Ford against the King If a Man find Sureties for the Peace before the Justices of the Peace in the County yet if the same Party come in B. R. and there make Oath that he was afraid he shall be hurt by the said Party he may have surety of the Peace there against the Party and a Supersedas to the Justices to discharge the Bond taken before them for the Peace and Behaviour Moor n. 126. Upon motion on Affidavit that he was bound to the Peace for Malice his Recognizance was discharged Stiles p. 364 Sir Tho. Revels Case It s the Course of the Court when any are bouâ—d over to appear in B. R. and in the mean time to keep the Peace or be of Good Behaviour the Cause is to be exprest in the Recognizance also when ever the Court binds any Man to the Peace or Good Behaviour it s always for a year 1 Keble Hill 16 and 17 Car. 2. B. R. Sandford versus Atkinson What is or amounts to a Breach or Forfeiture THE Surety of the Peace is not broken without Affray made or Battery bujusmodi 2 H. 7.2 b. Words which threaten a Battery of the Body may forfeit a Recognizance but not to call one Lyar Drunkard and to say I will make him a poor Kirton Moor n. 378. If he threaten to beat him to his Face it s a Forfeiture or if he threaten in his absence and afterwards lies in wait to beat him Keb. Inst 615. If he that is bound do but command or procure another to break the Peace upon any Man or to do any other unlawful Act against the Peace if it be done it s a Forfeiture of his Recognizance 7 H. 7.34 a. There is a Surety of the Peace and a Surety of the Good Behaviour the Surety of the Peace cannot be broken without some Act as an Affray or Battery or the like but the Surety de bono gestu consisteth chiefly in doing nothing that may be cause of the Breach of the Peace the word Lyar Drunkard c. are not Breaches nor entring his Close nor taking Goods What is a Breach of the Peace is a Breach of the Behaviour riding with War-like Weapons but that is not Law now or in Company with riotous Malefactors Cro. El. 86. k. 4 Inst 180 181. Kings Case In Sc. Fac. upon a Recognizance for the Good Behaviour taken in the Crown Office the Breach is assigned because he assaulted land bâ—t â—ne on the Way and he saith not vi aâ— and for this Cause after Verdict Judgment was stayeth Cro. Jac. 412. The King and Hutchings Scire Facias upon a Recognizance of the Good Behaviour Breach assigned was That he said to a Constable in executing his Office thou art a lying Rascal and to a Woman that she was a Whore and a Jade c. The Defendant pleaded not guilty and found for the Defendant though the manner of speaking may be good cause in discretion to bind one to his Good Behaviour yet one being bound words only which tend not to the Breach of Peace terrifying others or to sedition c. shall not be sufficient cause of Forfeiture Nota In this Case the Witnesses in the behalf of the King did not prove that these words were iâ— disturbance of the Execution of his Office Cro. Car. 498. The King versus Hayward Farther Considerations of Bonds in respect of Assignment Statute of Bankrupt and Forgery c. Assignments of Obligations Vide Creditors as to Statute of Bankrupcy IF a Man assign an Obligation to another for a precedent Debt due by him to the Assignee that is not Maintenance but if he assign it for a Consideration then given by way of Contract this is Maintenance Noy 53. Harvey versus â—man Alit in Case of the King 3 Lion 234. Scoth and Marsh Upon the Statute of 33 H. 8. cap. 39. the Case
by Deed indented leased to the Defendant a Farm called D. except one Close by Name Lessee Defendant was bound in a Bond to perform all the Covenants and Agreements in the said Indenture and pleaded he had performed all the Covenants the Plaintiff assigns for breach that the Defendant entred into the Close excepted the Defendant demurs Per Cur. the Obligation is not forfeited by this disturbance this Exception is not such an Agreement as is within the intent of the Condition it s an Agreement that the Land excepted shall not pass by the Demise but no Agreement that he shall occupy but sometimes an Exception is an Agreement that shall charge the Lessee but this when he agrees on his part that the Lessor shall have a thing dehors which he had not before as except a Way or Common or any other Profit a Prender that is Agreement of the Lessee that he shall have the Profit and if he bound to perform all Covenants and Agreements if he disturb him in this he shall forfeit the Obligation Cro. Eliz. p. 657. Lady Russel versus Gullwell Moor n. 713. id Case In a Lease for years the Defendant Covenants that the Plaintiff should enjoy it during the Term on Demurrer the Case was Tenant pur vie levies a Fine to him in Reversion come ceo c. the uses were to the Conusee and his Heirs on condition to pay to the Tenant pur vic 4 l. per ann during his life and upon default that it should be to the use of the Conusor for his life the Conusee made a Feoffment to the Defendant who leased to the Plaintiff the 4 l. was not paid nor demanded the Tenant pur vie enters on the Plaintiff this is a breach of the Condition without any demand of the Rent for its a Sum in gross and not issuing out of the Land the Covenant is that the Lessee shall absolutely enjoy it and this Condition is properly to be performed by him who hath the Freehold and it was held that this Feoffment had not destroyed the future use which is to arise for non-performance of the Condition Cro. El. 688. Smith and Warren Two make a Lease for years by Indenture and covenants that the Lessee should not be disturbed nor any incumbrance made by them one of the Lessors makes a Lease to a Stranger who disturbs on Bond to perform Covenants it s a breach of the Condition for them shall not be taken jointly Lach. p. 161. Merritons Case Condition of the Obligation was That the Plaintiff should have hold and enjoy Lands acquitted from all Charges and Incumbrances and for breach the Plaintiff shew there was a Rent-charge granted by the Predecessor under whom the Defendant claimed which is yet undischarged the Defendant demurred because the acquittal goes to the having and holding the Land and it s not shewed that the Plaintiff was ever in possession nor that he was charged or endamaged to which Twisden and Keeling agreed but by Windham the Defendant ought to shew how he had discharged and acquitted from the very Rent and not to let it perpetually hang over him but by all the Court if the Acquittal refer to the Land it self or to the Person the Defendant must shew how 1 Keb. fol. 927. King and Standish A Covenant that the Indenture of a Lease at time of the Assignment is a good true and indefeasible Lease and that the Plaintiff shall enjoy c. without the let or interruption of the Defendant or of any claiming by from or under him and shews for breach that before he that made the Lease had any thing one J. S. was seized in Fee and that he which made the Lease entred upon him and disseised and leased prout and that J. S. re-entred upon him upon which Replication the Defendant demurs per Cur. the word indefeasible Lease shall be construed as a distinct Sentence from the last words that he shall enjoy it without the interruption of the Defendant Siderfin p. 328. Gainsford and Griffith 1 Sanders p. 51. Johnson and Vavisor Joyntenants of a Mill by Lease for years Vavisor assigns all his Interest in the Mill to another without Johnsons assent or privity and dies Johnson after recited this Indenture by Lease and that all came to him by Survivorship grants the said Mill and all his Estate Title and Interest to Procter and covenants that he shall quietly enjoy it notwithstanding any Act done by him and Bond of Covenants Act. de Det sur Bond. Johnson pleads that the Plaintiff had enjoyed this notwithstanding any Act done by him Procter replied that Vavisor Joyntenant with Johnson assigned his Estate to J. D. who entred and expelled him The Defendant demurs adjudged against the Defendant for the Grant was never good for he had no power to grant one Moiety and yet he had expresly granted the Mill to Procter And the Condition of the Obligation being to perform all Grants the Grant being defective at the first as to a Moiety which is the Substance of the Agreement of all the Parties this is not qualified by the Covenant ensuing and it is not like to Nokes Cass 4 Rep. for there the Grant was good for the whole and becomes ill by Eviction afterwards and therefore the Covenant ensuing qualified the general Covenant Yelv. p. 175. Johnson and Procter Lit. 206. 1 Bulstr 3 4. A Covenant that the Lessee shall enjoy against the Lessor and all claiming under him The Defendant exhibited a Bill whereby the Lessor appeared to be in Trust and adjudged this was no Breach Selby and Chute cited 2 Keb. 288. 1 Brownl p. 23. The Covenant was if the Defendant sued or troubled charged or vexed the Plaintiff Per Cur. a Suit in Chancery is within the Condition 2 Keb. 288. Ashton and Martin A Condition to surrender a Copyhold and that the Plaintiff shall enjoy this without the let of any claiming under the Defendant and of one Lancelot Simons The Defendant pleaded Surrender and that the Plaintiff had quietly enjoyed this The Plaintiff replies that one Jane Simons claiming under Lanceolet ousts him Demurrer and Judgment pro Quer. The Case was this Copyhold was granted to Patience Hussy for Life the Remainder to Lanceolet S. in Fee and that after and before the Obligation Lancelot surrenders his Remainder to the use of Patience for Life and after to the use of Lancelot and Jane for their Lives and after to Lancelot's Heirs Lancelot and Patience dye and after the Obligation Jane enters The cause of Demurrer was that Jane took nothing by the Surrender for the Surrender to P. H. pur vie was void she having an Estate pur vie before and consequently the Remainders by notice upon this void Estate are void also Dut per Cur. the Estate limited to Jane S. shall be by way of present Estate and mediate Settlement and not by way of Remainder 1 Sanders p. 150. Wade and Balch 2 Keb. 341. Id. Case
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
Judgment of the Bill for that the Plaintiff in the Obligation was named J. Thorny de F. in Com. N. Armig ' and in the Declaration was named J. Thorny Armig. and no more Respond ouster awarded Cro. Eliz. 312. Thornough and Disney After Imparlance one cannot plead in Abatement of the Writ Stiles 187. Weston and Plowden Per Stat. 6 R. 2. c. 2. it 's provided that the Original shall not be laid in one County and the Declaration upon a Bond made in another County if so the Writ shall abete But it s no good Plea to say that the Bond was made in another County than where it s alledg'd in the Declaration Allen p. 17. Shalmer and Slingsby If the Defendant pleads a Plea in Abatement as in Debt upon Bond that another was joyntly bound with him who is in full life not named and concludes in Bar Judgment shall be final against him Siderfin p. 189. Burden and Ferrars Debt on Obligation against the Defendant Knight and Baronet The Defendant pleads he never was a Knight in Abatement No Amendment granted but in Nil Cap. per Billam awarded because tho' the Defendant after Bail put in by himself generally he cannot plead in Abatement yet when the Bai is Special or put in by another he may plead in by Abatement Judgment pro Def. 2 Keb. 824. Sir William Hicks's Case Pleads that the Plaintiff puis darrein continuance was made a Baronet Cro. Car. p. 104. Simon Bennet A Plea may be a good Plea in Abatement though it contain Matter that goes in Bar Med. Rep. 214. In Debt sur Oblig ' against J. S. de S. it 's a good Plea to say that there are two Vills S. within the County and none without Addition 14 H. 6.8 a. In Debt sur Bond. The Defendant pleads that after the Writ purchased the Plaintiff had received parcel and shews the Acquittance the Writ shall abate in the whole and notwithstanding it 's a good Plea in bar as to this part Doctrina placitandi p. 5. Vide pluis in titulo Payment infra Payment of parcel pendant le Suite Two bring Debt on Obligation the Defendant pleads the Obligation was made to them and to one B. and that they three had an Action of Debt depending against him and demands Judgment si actio Demur And because the Obligation was made to two upon which they counted it cannot be intended an Obligation made to three and if it be a Plea it 's in Abatement of the Writ and not in Bar. Judgment pro Querente Cro. Eliz. Isham's Case Debt against J. S. de D. Yeoman It 's no Plea to say there are two J. S. of D. Yeom Sen. and Jun. and none without addition For the Action accords with the Obligation which is J. S. de D. Yeoman without distinction 9 H. 7.21 Pleas after Imparlance IN Debt on an Obligation 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 or simple Contract 16 Ed. 4.4 a. per Bryan Debt against J. S. de D. The Defendant imparles he may after say by Attorny Upper D. and Nether D. and none without addition 18 Ed. 4.9 21 Ed. 4.1 b. contr Variance between the Obligation and the Writ may be pleaded after Imparlance in another Term for the Bond always remains in Court but after Imparlance Variance between the Testament and Letters of Administration shall not be pleaded for the Testament shall be but once shewed in Court 36 H. 6. 32 33. 38 H. 6.2 19 H. 6.7 The Defendant Imparles till another Term and then he pleads Tender of the Mony at the day and place and that no person was there to receive it and that he is now ready and saith not Touts temps prist yet it 's a good Plea For he had excused himself of the Forfeiture by this Plea and no Estoppel shall be by the Imparlance to plead that he is now ready Doct. placitand 388 389. In Debt on Bond the Defendant imparles Specially scil salvis omnibus omnimodis advantagiis and after he pleads the priviledge of the Exchequer that he was Surveyor there Per Cur. he cannot plead so Siderfin p. 318. Trussel and Maddin 2 Keb. 103. A Plea in Abatement ought to be pleaded before Imparlance As the Defendant to Debt on Bond appears and imparles and after Imparlance pleads that he is Earl of Nova Albion in Ireland and ought to be impleaded by that Name Stiles p. 187. Weston and Plowden After Imparlance the Defendant pleaded in Abatement that one Vincent not named sealed c. It 's no Plea after Imparlance and a Respond ' uâ—ster awarded 2 Keb. 795. Putt and Nosworthy Debt for 300 l. The Defendant after a general Imparlance demands Oyer and pleads Specially it was but for 30 l. Non allocatur after general Imparlance then the Defendant pleaded Non est factum which was the proper Plea in the Case 1 Brownl p. 70. It was Ruled that after Imparlance in Debt upon Bond the Defendant shall be received to plead that he was always ready to pay tho' 13 Eliz. 306. Dyer seems contrary and was so urged Replicatio Querentis That the Defendant ought not to be admitted to plead a Variance between the Declaration and the Bond in abatement after Imparlance general Modus Intrandi p. 200. Obligations Pleadings Acceptance Coneord COndition to deliver twenty Quarters of Wheat The Defendant pleads that pendente billa the Plaintiff had accepted fifteen Quarter and demands Judgment of the Bill No Plea for it 's Collateral and not parcel of the Sum contained in the Obligation and if it be a Plea it is in bar and not in abatement Cro. M. 33 54 El. Stone versus Radish Issue is taken that he had not accepted now though it s no Plea and so no Issue yet it s helped by the Statute of Jeofails and the Plaintiff had Judgment Cro. El. p. 260. M. 33 34 El. Andrews and Kinck Debt pro. 7 l. the Defendant pleads solvit ad diem The Jury find 50 s. parcel of it paid and that the Defendant then delivered to the Plaintiff certain Hats to the value of the residue which he accepted It was Adjudged against the Defendant for this is no payment he might have pleaded it specially Cro. M. 35 36 El. Tiblethorp and Hunt Debt fur single Bill The Defendant pleads he enfeoffed the Plaintiff of Lands in satisfaction of that Debt The Plaintiff demurs Per Cur. it 's a naughty Plea to a single Bill otherwise had it been upon a Bond with a Condition to pay Mony 1 Brownl 70. Glyver and Lease Debt sur Bond The Defendant pleads another Bond given to the Plaintiff in satisfaction of that Bond and acceptance at the day of payment Ill Plea for one chose in Action cannot be given in satisfaction of another unless it were payable at a day before the