Executor the Release is void Aliter had the Obligation been joynt and several 1 Keb. 936. Scot and Littleton When two are joyntly bound in an Obligation tho' none of them is bound by himself yet none of them shall plead Non est factum for they had sealed and delivered it but he may plead in Abatement of the Writ and every of them is bound in the Entirety therefore if they two are sued and one appears and the other makes default and by process of Law he is Outlawed he which appeared shall be charged with the whole 5 Rep. 119. Whelpdale's Case The Defendant pleads he was bound simul cum R. G. to whom the Plaintiff had released all Actions the said first day of May that being the date in the Declaration The Plaintiff by Replication shewed that after the Obligation sealed by R. G. he released to him and after viz. the same day the Plaintiff sealed the Bond absque hoc quod simul tenetur cum R. G. The Plaintiff demurs this Release doth not discharge the Defendant And per Cur ' the Traverse is ill because R. G. was bound with the Defendant But because the Defendant had not taken advantage of it to shew it on Demurrer but confess'd it Judgment pro Querente Cro. Eliz. p. 161. Mannings and Townsend Against a Servant or Receiver GOdb sealed a Bill to E. T. thus Mem. that I have received of E. T. to the use of my Master c. the Sum of 40 l. to be paid at Michaelmass following E. T. brought an Action upon this Bill The Defendant demurs to the Declaration supposing that he receiving it as a Servant to anothers use he shall not be charged as a principal Debtor Per Cur ' The last Clause of the Bill is for payment of the Mony generally and doth not say to be repaid by his Master and so shall bind him that sealed it 1 Brownl Rep. 103. Talbot and Godbolt Of Actions and Suits Action brought before Cause of Action THe Writ was dated Mich. 30 Eliz. The Condition was if F. died before the Age of 21 years then if the Defendant caused an 100 l. to be paid to H. within three Months after the death of F. then c. F. died 30 Septemb. 30 Eliz. The Plaintiff hath no cause of Action as appeareth by the Record 1 Leon. 186. Woodshaw and Fulmerston Condition to pay an Annuity at Lady-day or within twenty days after Issue being joyned on a Collateral matter and found pro Quer ' It was moved in Arrest of Judgment that the Original was brought the 8th of April and he alledgeth the Breach to be Lady-day last past which was within the twenty days and so the Action brought before he had cause of Action Apparent fauâ— Cro. Eliz. 565. Blunden's Case After Verdict and Judgment it was assigned for Error that the Teste of the Original was before the day of payment in the Condition Judgment was reverst Mâ—râ— N. 776. Williams and Buckley Cro. Eliz. 325 mesme Case If there had been no Original it had been good after Verdict but this is not aided by Stat. 18 Eliz. Bill Filed before the Obligation dated the Record was amended Siderfin p. 252. Manning and Warren Joynder in Action Vid. supra sparsim Bond where suable BOnd made in Virginia in partibus transmarinis it may be sued in the Admiralty 2 Rol. Rep. 497. Tucker and Caps Vid. supra Et supra tit Pleading to the Jurisdiction Declarations PEr Stat. 6 R. 2. it s provided the Original shall not be laid in one County and the Declaration upon a Bond made in another County if so the Writ shall abate Therefore if one plead the Bond was made in another County than where it was alledged in the Declaration it s an ill plea Allen Hill 22 Car. p. 17. Shalmer and Slingsby In Debt on Bond the place of the making of the Obligation ought to be shewed in the Count but if the Defendant plead Duress or Acquittance by which he confesseth the Deed this makes the Count good 28 H. 8. Dyer 14. In Debt on Bond Annuity or Praecipe of a Rent-charge the place where the Deed bears date ought to be alledged Aliter of a Release of Lands or Rent for this is Executory upon the possession 5 H. 7.14 28 H. 8. Dyer 14. 14 H. 8.16 a. To be paid at his Mansion-house c. this may be paid at any place 3 Bulstr. 244. Meletine and Hall Surrey was in the Margent and the Defendant in the Declaration was named of D. in the County of Sussex and that he made that Obligation at D. in Geni prâ—d and on Non est factum it was tryed in Surrey and Error assigned because Com' praed ' refers to the County last named Non allocutur for it shall have relation to the County where the Action is brought and that named in the Margent For the other County mentioned was by way of Recital and so it shall not relate thereto Cro. Eliz. 481. Shirly and Sâ—câ— vile Time A Declaration upon an Obligation made ultimo die Augusti upon Oyer of the Bond it bore Date the 19th of August The Defendant pleaded Non est factum the Jury found it his Deed and the Plaintiff had Judgment For the Count was not of the date but of the making and the Jury have found the Deed Hobart p. 249. Thorp and Taylor A Bill Filed before the Obligation dated the Record was amended in B. R. Siderfin p. 252. Manning and Warren An Obligation made to accord with the Indenture of Covenants in point of Time with Averment there was no other Indenture 3 Keb. 117. Countess of Falmouth Form of the Declaration IN the King's Bench it is said Sigillo suo sigillat ' but in the Common Pleas it is Per scriptum suum Obligatorium concessit se teneri c. without saying Sigillo suo sigillat ' delivery is never alledged and when it 's said Per scriptum suum Obligatorium all necessary Circumstances are intended to concur viz. Sealing and Delivery otherwise it is not a Writing Obligatory Cro. Eliz. fo 737. Penson and Hodges 2 Keb. 630. Cubitt and Green Three bring Debt and declare that the Mony was not paid to them and say not Nec alicui eorâ—m yet it 's good For payment to one is payment to all the Obligees Noy p. 69. Warner's Case Debt of 300 l. upon two Obligations dated 20 December to pay 150 l. c. and averred he had not paid it and did not say Nor any part of it yet good Winch p. 72. Foster's Case The Plaintiff declared that the Defendant such a day concessit se teneri c. profert hic in Curia scriptum praedictum quod debitum praed ' c. The Defendant demands Oyer of the Condition and pleads payment after a Verdict Judgment pro Querente It was assigned for Error because he doth not declare according to the usual Course Quod per scriptum suum
construe â—e contrary to the express wâ—ds Vid. aâ—a 9 H. 7.20.17.22 Conditions ought to be construed according to the intent of the parties if it may constare and Conditions of Obligations are not broken unless the intent be broken A Condition to appear such a day in such a Term and the Obligoâ— appears at a day in the same Term before the day mentioned in the Condition at the Suit of another Man which is 〈◊〉 appearance in Law for all Suits which shall be commenced against him the same Term yet because this is but an appearance by fiction in Law and not an actual appearance at this day the Condition is broken for peradventure had he appeared actually special Bail might have been required 1 Roâ— Abr. 426. Sir Richard Bullers Case If the Lessee of an House covenant not to lease the Shop Yard or other things pertaining to the House to one that sells Coals and after he lets all the House to one that sells Coals he had broken the Condition for he had broken the intent 1 Rolls Abridg. 427. Bonner and Langley A Condition that the Lessee shall not do any wast and the Lesse suffers the House to fall for want of covering and repairing though this is not a Feasance but only a permission yet the Condition is broken 1 Rolls Abr. 428. Qu. The Condition of the Obligation was if the said R. â— shall not at any time or times be aiding or assisting to T. E in any Actions Suits Vexations c. The Plaintiff assigns a Breach that before the Obligation he brought Trespass against the said T. E. and R. T. and that he had Judgment against both and that after the making the Obligation T. E. and R. T. brought Error Per Cur. it is no Breach for it is not the intent noâ— reason he should be barred to defend himself by joyning with T. E. against the unjust proceedings of the Plaintiff And so if after Verdict the Plaintiff had released and yet took Judgment by Execution they two might have joyned in Audits Queâ—el Hobart p. 30â— 1 Rolls Abr. 429. Lamb and Tompson This is not properly 〈◊〉 Action but a Suit to discharge him of a â—oâ—tio Action wherein they must joy A Condition if the Plaintiff might quietly take and enjoy Woods sold and if the ground where upon it groweth be four Miles distant from Rye c. then c. The Defendant pleads the Plaintiff had quietly c. and that the said Land by the next high and usual way for Carriages is 4000 Paces from the Town of Rye Per Cur. the intent was that the Plaintiff by selling that Wood should not inour the danger of the Statute of 23 Eliz. c. 4. And it ought to be pleaded that it is every way distant four Miles from Rye and not not by usual ways and the four Miles by 4000 Paces is well 2 Leon. p. 113. Mingâ— and Barl. The Condition was that if the within bounden J. L. shall happen to dye without Issue of his Body lawfully to be begotten that then if the said J. L. by his last Will or otherwise in Writing shall in his Life time lawfully assure c. The Condition being made in benefit of the Obligor shall have Construction according to the intendment of the parties to be collected out of the words of the Condition and the intention of the parties was that a Conveyance should be made by the Obligor in his Life time by his Will or otherwise of the Lands Jones Rep. p. 180. Eaton and Laughter The Condition if the Obligor pay so much then the Obligation to be void or otherwise it shall be lawful for the Obligee quietly to enjoy such Lands The Defendant pleads quiet enjoyment The Plaintiff demurs for that the Condition depends on the Payment or Non-payment and that concerning the Land is idle Per Cur. Conditions are to be taken according to the intent of the parties if it may constare but as these words then to be void are placed here it cannot refer but to that which precedes and not to the Land which ensues Regula Words in the beginning or end of things refer to all but those in the middle refer ad media tantum as Lease for Life Remainder for Life rendring Rent this goes to both Estates but Lease for Life rendring Rent Remainder for Life aliter Siderfin p. 312. Ferres and Newton In the Condition it was recited that the Sheriff had constituted the Defendant Bailiff of an Hundred within the County If therefore the Defendant shall duly execute all Warrants to him directed then c. Warrants shall only be intended Warrants directed to him as Bayliff oâ— the Hundred Horton and Day cited 2 Sanders 414. And such only as are to be executed within the Hundred And the Plaintiff must shew the thing to be done was within the Hundred Allen p. 10. Sâ—angâ—on and Day mesme Case A Condition that his eldest Son shall marry the Daughter of the Obligee and the Son lye the second Son shall not marry her that was not the intent 27 H. 4.14 When a Man is bound to do or permit a thing he ought to do or permit all which depends upon this in the performance of the thing 11 H. 4. 25. b. 1 Rolls Abr. 422. Collateral things must be done or permitted a Covenant to levy a Fine it shall be at his Costs who levies it A Man is bound to carry my Corn it is no Plea for him to say he had no Cart for he is bound by implication to provide a Cart and all other necessaries for the Carriage So to mow my Grass he must find Instruments to cover my Hall he is bound to find necessary Stuff 16 H. 7.9 A Condition that J. S. shall have ingress into his House he ought to have a common entrance at the usual Door and shall not be put to enter in by a hole backward or by the Chimny nor may the other make a Ditch before the Door If a Man hath Right to a Chamber he must not be barred of his ingress and yet the Doors ought not to stand open at Midnight If I am bound to suffer J. S. to have a Way over my Land if I lock the Gates I have broken the Condition Latch p. 47. Climson and Pool A Condition is to be performed as near as may be The Condition is that J. S. and R. G. shall come in their proper persons before such a Feast to London and to bring two Sureties to be bound with them to the Plaintiff in the Suit contained in the Obligation then c. J. S. dyes yet R. G. must do this and although 〈◊〉 Condition be not performed in the whole yet 〈◊〉 he may perform this by any possibility he must do it 15 H. 7.2 4 H. 7.3 A Condition that he or his Heir shall surrender c. before such a day to the use of the Plaintiffs Executors his Heirs and Assigns c. The Defendant pleads the
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
Paine On a Bond made to a Bishop Parson Vicar Master of an Hospital or other sole Body Politick the Executor or Administrator shall have this Action Except in the case of the Chamberlain of London where it goes to the Successor and so in the case of a Corporation aggregate Dean and Chapter Mayor and Comminalty the Successor shall have the Action 4 Rep. 65. Fulwood's Case Cro. Eliz. 480. Bird and Wilsford Per two or three to whom the Obligation is made IF Obligation be made to three and two bring their Action they ought to shew the third is Dead Siderfin p. 238. Osborn and Crossborn But in Whelpdales Case This advantage was waived on non est factum pleaded Also the Obligation being Obligamus nos it shall not be intended the others did not Seal but if they had not the Count should have been on writing by three whereof two did not Seal 1 Keb. 840. Mesme Case If two or three are bound joyntly and one dies the Executor of him that is dead is altogether discharged And the Action may not be brought against the Survivor and the Executor Siderfin p. 238. Osborns Case Debt versus Excutor Plaintiff profert joynt Obligation without saying jam defunct Q. if this be saved upon a General Demurrer If the Executor had been Plaintiff in Debt upon such Obligation he ought to have said jam defunct to entitle himself to this his Action Siderfin p. 272. Osborns Case Obligation made to three to pay Mony to one of them they ought all to joyn in the Suit for they are all as one Obligee and if he which ought to have the Mony dye the Survivors ought to Sue tho' they have no interest in the sum contained in the Condition Yelv. p. 177 Rolls and Yate By Baron and Feme THe Husband after she Marries must joyn with her in the Suit where the Bond was made to the feme dùm sola fuit for if cause of Action arise before Coverture tho' but Trespass where damages are only recoverable they must joyn 1 Keb. p. 440. Hardy and Robinson Upon such Bond made to the Wife dùm sola fuit by the Husband only Judgment staied 37 Ass 11. If Bond be made to a Feme-covert and the Husband disagree in Action brought the Obligor may plead non est factum for by his disagreement the Obligation is no Deed. 10 Rep. 119. Whelpdales Case On Bond made to Baron and Feme Feme Administers and brings Debt upon the Bond as Administratrix she dies before Judgment her Executors cannot bring Debt upon that Obligation for she hath waved it and that personal duty being a thing in action may well lie in Joynture between Baron and Feme aliter of other persons Noy p. 149. Norton and Glover By Alien ON Bond made to an Alien Enemy he may have an Action for personal things More n. 852. Walford and Marsham F. makes a Bill of Debt to A. by which F. acknowledges to have received of one P. 40 l. to be equally divided between A. and B. and to their use Per Cur. B. need not joyn in the Action tho' Tenants in Common ought to joyn in personal Actions for they are several Debts as 20 l. to one and 20 l. to the other Yelv. p. 23. VVhorewood and Shaw By Executor or Administrator AS to Suits brought by or against Executors that more properly belongs to another Title in our Law and the Pleadings stand altogether upon other Reasons Yet I shall say something here so far as refers to Obligations as to Payment Satisfaction Release Gist of the Action and the like Two Men made an Obligation joyntly for Debt the principal made his Surety his Executor who pays the Mony generally Q. if he paid it as Executor or as Obligor 3 Leon. p. 197. Carter and Marten B. As Executor brought Debt upon Obligation made to his Testator the Defendant Pleads he paid a lesser sum to the Testator and that he did accept thereof in full satisfaction per Rolls you may Traverse either the payment or the acceptance of the Mony but more proper to joyn Issue on the payment Stiles p. 239. Bois and Cranfeild Executor port Debt on Bond in the debâ—t detinet and had Judgment by Default but it was Reverst because it ought to have been brought in the detinet only Stiles p. 278. Lydall and Lister Administrator Sues J. S. upon Obligation and had Judgment and after the Administration is revoked yet the Plaintiff took the Defendant in Execution And upon motion the Execution was adjudged void and the second Administrator shall not have Execution for he is no party to the Record Yelv. p. 83. Barnhurst versus Sir Charles Yelverton Six Executors brought Debt named in the Writ after three were summoned and severed the other three bring Debt upon a Bond the Defendant Pleads non est factum and found against him Per Cur. there needs no mention of the other three who were severed Cro. Car. 420. Price and Parkhurst Debt port by Executors upon an Obligation the Defendant pleads payment of the Principal and Interest to one of the Executors of 18 years and a Release by him no good Plea for he not being at Age could not Release except he had the entire Forfeiture the Chancery in such case will releive Cro. Car. M. 13. p. 490. Kniveton and Latham Debt by Baron and Feme Exacutrix upon a Bond made to the Testator Upon non est factum pleaded it s found to be made to the Testator and another Judgment pro Querente The matter of variance goes but in Abatement and cannot be pleaded in Bar 5 Rep. 119. If the Defendant in this Case had demanded Oyer and caused it to be entred in haec verba he might have Dâ—murred to the Declaration and the Court ex officiâ— ought to have abated the Bill Allen p. 41 42 Holdwych and Chafe In Debt by Executor after imparlance the Defendant shall not have Oyer of the Testament or of the Obligation or other Deeds Q. de hoc doct placitandi 272. Two Executors made Partition of the Testators Specialties and then one of them did release to the Debtor an Obligation which did appertain to the part of the other the Debtor having notice of the Partition between them the other Sued in Chancery for relief Chancery would not relieve him but if the release were obtained by Covin for a lesser sum than the Debt was the Debtor should satisfie the overplus More n. 802. A. Administrator of B. de bonis non per G. against H. and Avers that H. had not paid it to B. nor to A. not saying he had not paid it to C. its good enough for the Declaration is quas ei injuste detinet which per Cur. cannot be if it were paid to C. Also this lieth on the part of H. to plead in discharge of himself 1 Keb. 232. In Debt on Bond per B. Administrator de bonis non of G. The Plaintiff saith the
to pay 11 l. on the 12th of February the Defendant pleads Accord the 8th of February that if he paid 8 l. on the said 12th of February that he would accept it for 11 l. and pleads Tender at the day uncore prist Per Cur. Concord is no Plea without satisfaction Cro. M. 32 33 Eliz. Tassal and Shaw Agreement to pay part and promise to pay the rest no Plea to a Bond Cro. M. 35 36 Eliz. Balston and Baxter Had he pleaded a lesser Sum paid before the day and at another place in satisfaction of a greater sum it had been good Ibid. Condition to deliver twenty Quarters of Barly the Defendant pleads in Abatement that pendente billa that the Plaintiff had accepted fifteen parcel of the said twenty Ill Plea for it is Collateral and not parcel of the Sum contained in the Obligation and if it be a Plea it s a Plea in bar and not in abatement Cro. Eliz. 253. Doct. pla 6. Vid. pluis in titulo Payment infra Condition to make a sufficient account of all Rents Revenues c. The Defendant pleads That before the Feast he Let to the Defendant an House c. in full satisfaction of all manner of Accounts to which he agreed and entred Nul Plea Dyer 1. Case 1. Vid. pluis ibid. Payment pleaded OF payment and acceptance of a lesser Sum before the day in satisfaction of a greater Vid. supra tit Pleading Acceptance Concord c. Payment of parcel hanging the Writ is a good Plea to the Writ 5 H. 7.4.1 an Acquittance of the receipt of part hanging the Writ goes to all the Writ Et Nota Where payment is not a Plea in bar receipt pendant the Writ is no plea to the Writ Doct. placit 108. The Defendant pleads acquittance for parcel if the Plaintiff acknowledge his own Acquittance he abates the whole Writ Per Cokaine the Plaintiff shall recover all that the Defendant acknowledged and as to what he had received the Plaintiff is to be amerced 3 H. 6.48 The Defendant pleads after the day of the Writ purchased viz. such a day he paid to the Plaintiff 60 l. parcel thereof which he received Judgment of the Writ The Plaintiff demurs specially because he shewed not any Acquittance or Release testifying it Judgment for the Plaintiff Cro. Eliz. p. 884. Colbroke and Foster In Debt on a single Obligation payment without acquittance is no plea. Otherwise in Debt on Obligation with Condition 28 H. 8. Dyer 25. b. 15 Ed. 4.6 a. 33 H. 8. Dyer 50. b. 51. a. Payment with acquittance pleaded in an Action of Debt on a Bond is not double because the Acquittance only is issuable and the payment is but Evidence 1 H. 7. 15. b. If the Plaintiff by Deed had confessed himself to be satisfied of the Debt though he had received nothing yet this a good bar 30 H. 6. tit Bar 37.5 Rep. Pinnel's Case fo 117. b. Condition to pay 70 l. viz. 35 l. at one day and 35 l. at another day at the Temple-Church The Defendant pleads payment of the 70 l. at Ludlow secundum formam effectum Conditionis praedict Verdict pro Querente Assigned for Error for that he ought to have pleaded several payments but per Cur. its good enough reddendo singula singulis secundum formam effectum c. Cro. Eliz. p. 281. Fox versus Lee. Condition was to pay 20 l. the 7th day of Mdy 1558 at the House of the Defendant in S. It was found by Verdict that the Defendant paid the 20 l. before the 7th day of May at the said House but not solvit the 7th day of May. It was Adjudged a good payment More N. 400. Bond and Richardson Debt on Bond by a Bishop the Defendant pleads he paid the Mony at the day to J. S. Bailiff of the Plaintiff and by his commandment and avers that this came to the use of the Bishop This Averment makes the plea double for if the Bayliff receives this by command from the Bishop notwithstanding this doth not come to his own use yet this is a sufficient discharge to the Defendant 22 Ed. 4.25 a. But In Debt on Obligation payment of the Mony to J. S. by commandment of the Plaintiff is no plea without shewing that the Plaintiff was indebted to him 27 H. 6. 6. b. Where mistake in pleading the Sum or the Time is aided and where not IN Debt on Bond of 200 l. Condition to pay 105 l. c. The Defendant pleads payment of the aforesaid 100 l. at the day The Plaintiff replies quod non solvit praedict ' 105 l. Et hoc petit c. and it was found he did not pay the 105 l. Judgment pro Quer ' and Error assigned for that there is not any Issue joyned and so the Verdict ill and Judgment erroneous The saying Secundum formam effectum Conditionis shall not help it as if it should be intended the aforesaid 105 l. Cro. Jac. p. 585. Sandback and Turvey Such a Case was in Cro. Car. fo 593. Derby and Hemming and no Repleader could be granted but Judgment was reverst But where the Defendant pleaded to Debt on Bond payment of 50 l. on the 14th of Jun. 11 Jac. The Plaintiff replies he did not pay it the said 14th day of August Anno 11. supradicto quas ei ad eundem diem solvisse debuisset and Verdict found that he did not pay it the 14th day of June yet 't was no Error For the Defendant's Plea was according to the Condition and the Plaintiffs Replication quod non solvit the said 14th day was good and the misnaming the Month August is idle and superfluous praedicto quarto decimo die had been sufficient But in the other cases of mistaking the Sum there was another Sum in the Plea of the Defendant than was in the Condition and another Sum in the Replication than is in the Bar and so no Issue In Debt on an Obligation the Defendant pleads Solvit ad diem de hoc ponit c. where it should be hoc paratus c. for then the Plaintiff should have replied Non solvit Et hoc petit c. so there had been an Affirmative and a Negative Per Cur. forasmuch as the Plaintiff joyns Issue and the Jury find he hath paid its good enough and aided per Stat. Jeofails and Judgment was not arrested Cro. Car. 316. Parker and Taylor So 3 Keb. 29 Car. 2. p. 764. Helder and Brudnall Condition to pay a Stranger at three payments the Defendant on Oyer pleads payment according to the Condition of another Obligation to the Stranger The Plaintiff demurs and the Plea is Ill because the other Bond to the Stranger is not set forth as the particular days of payment 3 Keb. 612. Nichols and Nichols Release Pleaded J. S. makes an Obligation dated and delivered on the first of May and on the first of June following the Obligee makes a
Debt upon Bond the Defendant pleads the Intestate in her Life by the name of Ellen released c. The Plaintiff replied non est factum Elianorae which was found so by Verdict and well More n. 1192. Panton and Chowles Obligation by the name of John and the Condition by the name of James the Declaration is that James per nomen Joh'is became bound it is not good for John cannot be James Crook El. p. 897. Field and Winlow The Plaintiff declared in Debt against Edmond Watkins alias Edward Watkins that he by the name of Edmund was bound c. The Condition was that if Roger W. paid 50 l. to the Plaintiff at a day then c. The Defendant pleads Payment by Roger and Issue and Verdict pro Quer ' and Judgment But it was reversed by Error for Edward is bound and Edmund is sued which cannot be intended one and the same person and no averment can help it for one cannot have two Christian Names and here is no Estoppel Aliter if the Condition had been if Edward W. pay the 50 l. and the Verdict found for the Plaintiff then the Verdict should make it an Estoppel Crook Jac. 558. Watkins and Oliver Debt on Bond brought against him by the name of Jacob he pleads he was called and known by the name of Jaacob and not Jacob it was over-ruled Mod. Rep. 107. Aboabs Who are bound though not named IF a Man bind himself his Executors are bound though not named not so of the Heir for the Executor doth more actually represent the person of the Testator Cook Lit. fo 209. The Ordinary shall be bound if he administers 2 Rolls Abr. 149. In respect of Obligees To whom Obligations may be made and the Effect To Baron and Feme A. Makes a Bond to Baron and Feme Baron dies Feme administers and brings Debt upon the Obligation as Administratrix she dies before Judgment and her Executor brought Debt upon that Obligation It lies not it was in her a sufficient Election and Waver and that personal duty being a chose in action may well lie in jointure between Baron and Feme Aliter of other persons Noy p. 149. Norton and Glover To Feme Covert IF Bond be made to a Feme Covert and the Husband disagree the Obligor may plead n◠est factum For by his disagreement the Obligation is no Deed 10 Rep. 119. Whelpdale's Case To Feme sole THE Husband after she marries must join with her in the Suit for if cause of Action arise before Coverture though but Trespass where damages are only recoverable they must joyn 1 Keb. 440. Hardies Case To Alien AN Alien born under the Obedience of an Enemy may have Debt on Bond for personal things More n. 852. Walford and Marsham To Corporations A Bishop Parson Vicar Master of an Hospital or other sole Body politick cannot take a Recognisance or Obligation but only to their private and not in their politick Capacity and therefore no Chattel either in Action or Possession shall go in Succession but the Executors or Administrators of the Bishop Parson c. shall have them This is regularly true except a Custom enable it to go in Succession as in the Case of the Chamberlain of London for Orphanage Mony there it goes to the Successor But in case of a Corporation aggregate of many as Dean and Chapter Major and Comminalty c. it goes to the Successor for they in Judgment of Law never die 4 Rep. 65. Fullwood's Case Crook Eliz. p. 480. Bird and Wilsford A Man cannot bind himself to two severally in a Bond but a Man may covenant with two severally for that sounds in damages March Rep. p. 103. I shall in the next place come to the Dates of Obligations and though it may be good without a Date yet when it is dated there is good Learning in our Books concerning the Juries finding pleading c. Date OBligation is good though it wants a Date or hath a false or impossible Date 2 Rep. Goddard's Case Declaration sur Obligation made ultimo die Augusti anno c. upon Oyer of the Bond it bore date 19 Aug. an c. The Defendant pleads non est factum Jury found it his Deed. Judgment pro Quer ' For the Count was not of the date but of the making and the Jury have found the Deed Hob. p. 249. Thorp and Taylor One brought Debt and declares the Defendant 4 Apr. 4 Eliz. made a Bond bearing date the same day and year and the Defendant pleads non est factum and it s found that the Deed was delivered at another day before or after than the Plaintiff hath declared yet Judgment shall be for the Plaintiff for the date is not material and the Defendant cannot be twice charged 2 Rep. 5. Goddard's Case If it be a mistaken date as to the King's Reign or no King's Reign be in or an impossible date or if it want a date its good and the party may surmise a date in the Declaration and it is good and the party ought to answer to the Deed and not to the Date Yelv. 194. Dobson and Keyes Crook Jac. 261. id Case The Obligee cannot alledge the Delivery before the Date yet the Jury may find the truth and tho there wants in cujus rei Testimonium yet its good 2 Rep. Goddard's Case Obligation bears date in France it may be sued in England and it shall be alledged to be at Islington in France for it s not traversable whether there be such a place as Islington or not Cook Lit. 261. b. Latch p. 77. Ward 's Case The Defendant pleads quod factum prae◠was made and delivered sans Date and afterwards the Plaintiff put a Date thereto and so not his Deed ill Plea upon demurrer for the Defendant first confesseth it to be his deed by saying factum praed and then concludes its not his deed Crook Eliz. 〈◊〉 800. Cospes versus Turner In det sur obligation fait 1 Novemb. 12 Jac. the Defendant pleads in Bart an Indenture of Defeasance and shews not the date of it but by these words iisdem die anno referring this to the Plea of the Defendant viz. to the date of the Obligation alledged in the Count the Bar is insufficient for the uncertainty for this shall be intended to bear date before the Obligation for that every deed shall be taken most strongly against him that pleads it Doct. pl. 29. If a Man plead factum suum dat primo Jan. deliberat quarto Jan. he ought to say primo deliberat 4to die Jan. otherwise the word suum imports that this was his deed the first day of Januar. per Dyer 5 Eliz. 221. b. I shall now treat of the delivery of an Obligations being an Essential part or circumstance required thereto and what amounts to a good delivery to the party himself and where the delivery of a deed is traversable and of the Delivery as an Escrow and
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.
not stay to wait for performance perhaps then he may stay as long as he lives but as on Bonds of Abritrament on breach of either Party hath remedy 2 Keble 674. Modern Rep. 64. Siderfin 464. Humlock and Blacklow In Debt for performance of Covenants they must be set out in Latin Allen p. 87. Of Assignment of a Breach on Bonds of Covenant IF Breach be assigned after the Action brought its ill the Defendant demands Oyer of the Obligation and it was for performance of Covenants the Plaintiff replies and assigns a Breach in non-payment of the Rent the 20th day of June 17 Car. and the Bill was filed Trin. 17 Car. which Term ended the 14th of June therefore ill Siderfin 307. Champions Case Bond of Covenants to perform the Indenture of a demise the Plaintiff declares he made the Lease the 28th of May to the Defendant and that postea scil 27th of the same month of May the Defendant broke the Covenant Demur because the breach is set forth before the Lease began and so no cause of Action but by Bacon where the postea scil are repugnant as here they are the postea shall be good to signifie the time of the Covenant broken and the scil shall be void Stiles p. 45. Anonymus If an Obligation conditioned for payment of Mony become payable hanging the Action this had made the Action good otherwise where it is conditioned for performance of Covenants and there is a Breach pendent the Action Q. Siderfin in Champions Case p. 308. The Plaintiff must assign a Breach to intitle himself except in some Cases vide infra on a Bond of Covenants that the Defendant should not deliver possession to any but the Lessor or such Persons as should lawfully recover the Defendant pleaded he did not deliver but to such Persons as lawfully recovered it the Plaintiff demurs Judgment pro Quer. Per Twisden on affirmative Covenants general pleading of performance is sufficient and so on negative for its sufficient for the Defendant to plead an excuse and the Plaintiff must assign a breach to entitle himself 1 Keble 380 413. Nicholas and Pullen One Covenant was That J. B. her Heirs c. should perform Covenants in a Deed Poll whereof one was That if I. died before the Plaintiff had satisfaction on Judgment assigned then the Administrators de bonis non of H. B. should farther secure that Assignment the Defendant pleaded performance generally the Plaintiff replies such a day I. died and sets not forth any Breach Judgment pro Defendente 2 Keble 288 301. Trussâ— and Mading The Plaintiff is not bound to alledge a special Breach when the Defendants Plea contains speciall Matter A Condition to perform Covenants in an Indenture one was That I. the Defendant should permit Guy the Plaintiff from time to time to come and see if the House leased by Guy and K. his Wife were in repair I. pleads in Bar that I. B. and K. his Wife were Tenants in Tail of the House and had Issue that I. B. died K. married Guy the Plaintiff and they two make a Lease to him for 20 years and that W. the Issue in Tail such a day entred before which entry the Condition was not broken Guy replies That William came with him upon the Land to see if Reparations c. and traverses the entry of William in manner and form prout and Issue joined upon the Traverse c. and found pro Quer. and Judgment it was assigned for Error that there was not any breach of Covenant in I. assigned and so had shewn no cause of Action but per Cur he need not in this Case for the special Plea of the Defendant had disabled the Plaintiff that he could not assign any breach of Covenant but of necessity ought to answer to the special Matter alledged It s not like the Case of Arbitrament in Debt on Bond to perform Award the Defendant pleads nul â—iel Award then the Plaintiff in his Replication ought to set forth Award and assign his Breach because the Defendants Plea 〈◊〉 general but if in such Case the Defendant should plead a Release of all Demands after the Arbitrament by which he offers a special point in Issue there it sufficeth if the Plaintiff answer to the Release without assigning any Breach Yelv. p. 78. Hob. cont â— Brownl p 89. Jeffry and Guy 2 Keb. 46 74. â—arch and â—lackaâ— The Condition was That wherâ— Ed. Tailor had bargained c. to the Plaintiff a Close c. and whereas the said Ed. T. hath already â—ort gaged to J. S. divers Lands in G. whereby the said Close is either mortgaged or supposed to be mortgaged c. if therefore the said Close of Pasture at the day mentioned in the said Indenture of a Mortgage be redeemed and set free c. the Defendant pleads the Close was not mortgaged to J. S. sic dicit quod clausum praed c. fuit redempt liberat exonerat c. the Plaintiff replies That the said Close was mortgaged to the said J. S. and upon this Issue joined and found pro Quer. and 't was moved in Arrest of Judgment that the Replication was not good for he ought to have replied quod pignoratum fuit to the said Smith and is not redeemed for it might be redeemed before the day Per Cur. it s a good Replication 1. The Defendant hath offered a particular point in Issue that it was not mortgaged and the Plaintiff answers it when he saith it was mortgaged and need not alledge that it was not redeemed for there shall never be intended any redemption because the Defendant pleads it was not mortgaged as J. S. is bound to marry the Daughter of J. D. upon Easter-day next in Debt on this Obligation if J. S. pleads in Bar that the Daughter of J. D. died before Easter-day it s a good Plea and its a good Replication that the Daughter was living on Easter-day without saying farther that he had not married her because a special Plea in Bar is always answered with a special Replication in the Point alledged 2. Because the Mortgage is supposed to be made between a Stranger and the Defendant to whose Acts of Redemption c. the Plaintiff is not privy and cannot have conusance or notice of theire Acts its excellent Learning which hath made me more at large recite it Yelv. M. 44 and 45 Eliz. R. R. fol. 24. Baily and Tailor Cro. Eliz. p. 899. mesme Case the difference is such pleading after Verdict should be good but not if demurred to as the Condition was the Defendant should render account of all such Goods of A. as came to his hands or pay his part for them The Defendant pleads nothing came to his hands The Plaintiff replies a silver Bowl came to hands Demurrer Ill Replication for he should have said and had not paid for it Siderfin 340. 1 Keb. 275. Hayman and Gerrard Though in Obligations put in Suit for
performance of Covenants the Breach ought to be more precise and particular than Actions of Covenants because of the Penalty yet if what is material and the substance of the Covenant be alledged it may suffice as a Covenant was that the Defendant a Bayliff should not let at large any Prisoner that should be arrested without Licence of the Plaintiff an Under-Gaoler The Breach was that the Defendant had let at large at Westminster sans licence c. such an one who was arrested but shews not the place or time of the Arrest Per Cur. he need not the Escape being the material part of the Covenant Siderfin H. 12 Car. 2. f. 30. Jenkins and Hancocks Debt by a Brewer on a Bond to perform Articles against his Clark one was that the Defendant should deliver such Ale and Beer weekly as should be delivered unto him to such Customers as he had in his Charge and to receive the Monies due for the same and should accompt with the Plaintiff every Saturday weekly for such Monies he should receive for Breach the Plaintiff assigns that the Defendant did not account with him for such Monies as he had received on Saturday the 25th c. Verdict pro Quer. Judgment was arrested for the Breach was uncertainly alledged because the Plaintiff doth not shew the Defendant had any Customers in his charge or who they were or that he had delivered Ale or Beer to them or received any Mony of them Stiles p. 473. Arnold and Floid A Covenant that he and his Executors and Assigns would repair a Mill and alledgeth that the Mill was defective in Reparations and the Defendant his Executors and Assigns did not repair it Def. demurs because he did not alledge that he not his Executors or Assigns did not repair it for if any of them did repair it the Action lies not and per Cur. it is naught But upon motion of the Court the Defendant waved his Demurrer and the Plaintiff amended Crook Eliz. p. 348. Cole and How If the breach of the Condition of an Obligation be ill assigned the Verdict shall not aid this Default Sanders 2 part 179. Hele and Wotton Kerby and Hansaker there cited Though the Action be well brought upon the Obligation yet when it appears the Condition was for performance of Covenants there can be no cause of Action without some Covenant broken and so shall not have Judgment though he hath a Verdict Hob. 14. in Sir Daniel Norton's Case Disability wherein the Obligor hath disabled himself to perform the Condition IF a day be limited to perform a Condition if the Obligor once disable himself to perform this although he be enabled afterwards before the day yet the Condition is broken as if the Condition be to enfeoff me before Michâ—mas if before the Feast he enfeoff another yet the Condition is broken 21 E. 4.55 The Condition is if he permit and suffer all his Lands c. to descend remain or revert to such an one his Son immediately after his decease without any Act c. The Obligor â—ells parcel of the same Lands though he purchase them again yet the Obligation is forfeited Benlow n. 34. p. 9. Sir A. Main by an Indenture demiseth Lands to Scot for 21 years and covenants at any time during the Life of Scot upon Surrender of his Lease to make a new Lease c. and an Obligation to reform the Covenants Sir A. Main pleads in Debt upon this Obligation that Scot did not surrender Scot replies that after the said Demise Sir A. M. had accepted a Fine sur omisance de droit come ceo and by the same Fine grant and renders the Land to the Conisee par 80 ans Defendant demurs Per Cur. 1. Sir A. M. by the Fine levied had disabled himself either to take a Surrender or to make a new Lease and so hath broken his Covenant 2. Though the first Act was to be done by Scot viz. the Surrender and Scot may surrender if the term for 80 years be the Interest of a future term yet Scot shall have his Action without making any Surrender for after Surrender Sir A. M. cannot make a new Lease which is the Effect of the Surrender he hath disabled himself 5 Rep. 20. b. Sir Anthony Mains Case Poph. 109. Benl n. 121 125. So if he disable himself to perform it in the same plight as Feoffee on Condition to re-enfeoff grants a Rent-Charge marries a Wife c. this is a forfeiture of the Condition 44 E. 3.9 b. Coke on Litt. But if the Feoffee on a Condition to re-eneoff a Stranger and after another recovers the Land against him by default yet until Execution sued the Condition is not broken 44 E. 3.9 b. One promiseth to perform an Award which is that he shall after deliver an Obligation to another in which he is bound to him without limiting any time when this shall be performed If he bring Debt on the Bond and recover and after deliver the Obligation yet this is not any performance of the Condition for he ought to deliver this as it was at the time of the Award made Tr. 15 Jac. B. R. 1 Rolls Abridg. 447. Nichlâ— and Thomas If no time is limited if the Obligor be once disabled he is perpetually disabled 21 E. 4.54 b. Vid. Cases del Disability 1 Rolls Abr. 447 448. Conditions to perform particular Covenants To make Assurance TO make such Assurance as Counsel shall advise A Condition to make to the Obligee or his Assigns so good a Lease as Counsel shall advise and the Obligee appoints him to make a Lease to J. S. he must do it for it is not as shall be advised by Counsel Per Coke if the words were he shall make as good a Lease as Counsel shall devise he ought to have brought a Lease drawn by the advise of Counsel 1 Rolls Abr. 424. 1 Rols Rep. 373. Allen and Wedgwood To make such Assurance c. as the Plaintiffs Counsel shall devise it is not sufficient to plead he made such Assurance but that the Plaintiffs Counsel devised such Assurance which he had made Crook Eliz. 393. in Hutchinson's Case One covenants to make such Assurance c. as the Plaintiffs Counsel shall advise and he pleads performance of Covenants he cannot afterwards say Consilium non dedit advisantentum in Specot and Sheer's Case Crook Eliz. 828. The Defendant covenants to assure such Lands by such Assurance as by the Counsel of the Plaintiff shall be devised the Breach assigned in this the Plaintiff caused such an Assurance to be drawn and ingrossed and put Wax to it and required the Defendant to execute it and he refused The Defendant demurs per Cur. it is no Breach because the Plaintiff himself devised it Crook Eliz. p. 297. More versus Roswel On Covenant that before such a day he would make sufficient Estate of Lands to such value to the Plaintiff for term of his Life as by the Plaintiffs Counsel
that he cannot do sans Licence Moor n. 294. Crocock and White An Action is brought against the Heir of Edmund A. the Condition Whereas the said Ed. A. such a day hath granted and given to the Plaintiff the Presentation to the Church of D. if therefore the said Ed. A. from time to time shall make good the said Grant from all Incumbrances made or to be made by him and his Heirs that then c. the Grantor died the Church became void the Heir of the Grantor presented this tortious Presentation is no Breach but this extends only to lawful disturbance by the Heir for it appears by the pleading the Heir had no right to present his Father having granted that before Per Hobert the words shall be construed as if it had been said that he shall enjoy the same from any Act or Acts made by him or his Heirs and in this Case there ought to be a lawful Eviction to make a breach of the Condition but otherwise if the Condition had been that he shall peaceably enjoy from any Act or Acts made by him or his Heirs for in this Case a tortious disturbance would have been a Breach of the Condition Winch p. 25. Dr. Hunt versus Allen. The Condition was That he should enjoy such Lands sans Eviction the Breach was assigned in the Recovery by Verdict in Ejectione Firmae upon a Lease made by one Essex and doth not shew what Title Essex had to make the Lease but avers that Essex had good Title and it might be he had Title derived from the Plaintiff himself after the Obligation made and therefore he ought to shew that he had good and eigne Title before the Lease made and in the Exchequer-Chamber the Replication held ill Cro. Jac. p. 315. Kirby versus Hansaker 2 Sanders Hele and Wotton though this was after a Verdict 2 Sanders 177 178. Id. The Condition was If the Obligee peaceably enjoy an Acre of Copyhold Land according to the Custom of the Mannor the Defendant pleads by Custom of the Mannor the Obligee ought to pay to the Lord a Rent and for non-payment the Lord to re-enter and that the Obligee did not pay it and the Lord entred and demanded Judgment si Actio bon Plea Benl p. 32. The Condition was to enjoy peaceably against M. Breach assigned that M. had entred and cut down five Elms upon Evidence it was A. Servant of M. by commandment and in the presence of his Master had entred and cut and good 1 Leon. 157. Seaman and Browning Debt on Obligation for performance of Covenants Breach assigned was the Defendant Lessor covenanted that it should be lawful for the Plaintiff being Lessee quietly to enjoy the Land and that the Lessor himself ousted him this illegal ouster was a Breach of the Covenant Cro. El. 543. Corus Case The Condition is If such Lands be discharged of all Incumbrances made by him except the Estate and Title of Jointure of his Wife Elizabeth that then the Breach is assigned that the Defendant before the Obligation made had surrendred these Lands to the use of Elizabeth his Wife it s no Breach vide Cro. El. p. 761. Woodward vers Dannock In Debt on Bond against Baron and Feme being made in her Widowhood with Condition that she her Heirs or Assigns keep Contracts and Covenants made between former Husband and his Lessee the Plaintiff and there was an Agreement that the Plaintiff should enjoy a Warren of the Demise of the former Husband and that he entred till put out by the Defendant Issue on the Agreement found pro Quer. Jones moved there was no Estate alledged in the former Husband in jure Uxoris whereby though the second Husband be assigned in Law yet he enters of his own wrong and not as claiming under her but per Windham it s not requisite that the Husband be Assignee of the Estate but her Assignee of Contract 1 Keble 348 512. Hall versus Creswel and his Wife Judgment pro Quer. A Covenant to save harmless from lawful Eviction the Defendant pleads performance the Plaintiff replies That J. S. took out a Writ of Hab. fac poss in B. I. debito modo exeunt ' and by vertue thereof entred and expelled him per Cur. debito modo is not sufficient without shewing particulars he ought at least to recite the Term of the Judgment but not the Title of him that evicted 1 Keble 379. Nicholas and Pullâ—n The Condition was That the Obligor should not enter nor claim a certain House the Defendant said he did not enter nor claim the Plaintiff replies he claimed no Plea he should say he came to the Land and claimed the Land and entred into the Land and nothing shall be traversed but the Claim 4 H. 7.13 not the Entry A Condition to discharge a Mesuage of all Incumbrances there one may plead generally that he did discharge it of all Incumbrances but if it be to discharge it of such a Lease he must shew how 1 Brownl 63. The Condition was That he shall suffer his Lessee for years to enjoy c. and that without the trouble of him or any other Person a Stranger enters per eigne Title the Condition is not broken for this word suffer is a passive and all the rest is to be referred to this but if any procurement or occasion of disturbance be by the Lessor his Executors or Assigns then he forfeits the Obligation 2 Ed. 4.2 b. 1 Rolls Abr. 425. Q. 1. A Man is bound to warrant Lands by Obligation in Action de Det port pacifice gavisus est is no Plea for it s but an Argument that he had warranted and it s but a fallible Argument for the Party may enjoy peaceably without having Warranty Dyer 42. b. 43. a. 2 Co. fol. 3. A Condition peaceably to enjoy from the 1st of Febr. usque Michaelmas-day Tithes paying half yearly during the Term and on default of payment the Defendant Lessor to be free from all Obligation to the Plaintiff he replies he assigned a Breach in non-payment of Rent at Michaelmas which is after the Term ended and so the Defendant demurs Also the substance of the Suit is quiet Enjoyment and therefore ought not to be taken by protestation sed per Cur. enjoyment need not be answered where it s defeasanced by payment of the Rent yet Judgment pro Def. 3 Keb. 594. Biggin and Bridge A Condition that he shall suffer his Lessee for years to enjoy his Lands during the Term and that without trouble of him or any other Person a Stranger enters per eigne Title per Cur. the Condition is not broken for that this word suffer is a passive and all the residue is to be referred to this but if any procurement or occasion of disturbance by the Lessor his Executors or Assigns then he hath forfeited the Obligation a Man is bound to permit Land to descend to his Son he need not aver that this had descended to him
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
Plaintiffs Executor dyed after the making of the said Bond and before the said Feast viz. c. The Plaintiff demurs and Judgment for the Plaintiff 1 Brownl Rep. 7â— Horn and May. In many Cases Endeavour shall excuse The Condition was to enfeoff Baron and Feme of Land if Baron die if he do it as near as he can it is good 15 H. 7.2 13. If there be an indifferent construction which may be taken two ways that way shall be taken which is most reasonable to make the Obligation to stand in force The Condition was that 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 Per Cur. the Month shall be after the Request and not within a Month after the date of the Bond Stiles p. 242. Wentworth versus Wentworth A Man shall be supposed by the Condition to do what properly belongs to him The Condition of the Obligation was that the great Bell of M. should be carried to the House of the Obligor in W. at the Costs of the Men of W. and there to be weighed in the presence of c. and of this the Obligor to make a Tenor to agree in tonâ— sono with the other Bells of M. In this Case the Obligor ought to weigh this for it belongs to his Occupation 9 Ed. 4.3 b. 1 Rolls Abr. 465. If a Man be bound to carry my Corn he must find a Cart so to mow my Grass he must find Instruments so to cover my Hall he is bound to find necessary Stuff 16 H. 7.9 A Man may be said to forfeit a Condition if he do what in him lies to break it or if he do such an Act which may consequently produce a Forfeiture though in strictness it be not broken by him A Condition not to devise a Lease to any person but to his Child or Children and he deviseth this to a Stranger the Executor never consents to the Devise yet this is a Forfeiture for he that had done all that was in his power to pass this by Will and put it in the power of the Executor to exeâ—ute it 1 Rolls Abridg. 428 429. Burton and Horton The Condition is that the Grantee of a Reversion shall not grant this over to J. S. If he grant the Reversion to J. S. by his Deed though the Lessee never attorn yet this is a Forfeiture Id. ibid. A Condition not to assign his I ease that so it may come to J. S. and after he assigns this to J. D. the Condition is broken for as much as by this means it may come to J. S. 1 Rolls Abr. 429. Cummin and Richardson Where a Condition of an Obligation shall be expounded by a matter debâ—rs The Condition was to save the Plaintiff harmless from all Actions and Damages that might arise upon the Release of the Defendant out of the Execution being then in Execution at the Plaintiffs Suit from all persons that might trouble him concerning the said Release The Defendant pleads the Plaintiff sued one N. for 100 l. and that he and Hart became his Bail and that the Plaintiff had Judgment against N. and the Bail and the Defendant was taken in Execution and thought the Plaintiff released him c. The Plaintiff replies and confesseth the Bail and Judgment but saith that Hart gave him Security for his Mony and the Plaintiff promised H. he might lay the Execution on the Defendant and that he would not release him sans consent of H. on which H. procured him to be taken in Execution and moved the Plaintiff to discharge him who aâ—quainted him with his promise to H. ut supra and thereupon the Defendant made him this Bond and so he discharged him H. brought an Action against him for Breach of Promise and recovered 150 l. damages and so he was damnified The Words are apparent to save harmless from some damage that might arise not upon the Release alone but upon some collateral thing besides the Release and yet by means and occasion of the Release Hâ—bart p. 269. Wild and Wilkinson Expositions of Words Sentences and References in Conditions During the Time THE Condition was whereas the Lord A. had deputed T. J. to be his Deputy Post-Master to execute the said Office from c. for the term of six Months following Now if the said T. J. shall and do for and during all the time that he shall continue Deputy Post-Master execute and pay such Mony c. Per Cur. the Condition refers to the Recital only whereby the Defendant was bound only during the six Months and no longer and the indefinite time shall be construed during the six Months 2 Sanders 413. Lord Arlington and Merrick Condition faithfully to execute the Office of and quarterly to make Accompt of all Monies by him received c. and pay all Monies by him received and do Accompt such times as he shall he reasonably required The Defendant pleads performance to all but the Accompt and for that he saith he was never reasonably required to do this Per Cur. this Clause being reasonably required goes only to the payment of the Mony bring the last antecedent and the Accompt is limited to be made quarterly Lit. Rep. 101. The King and Points Then living The Condition was if it happen the said J. M. to dye before the Feast of c. without Issue Malâ— of her Body by R. B. begotten then living that the Obligation shall be void The Defendant pleads post confectionum obligationis and before the said Feast the said J. M. dyed sans Issue Male of her Body then living The Plaintiff replies she had Issue H. B. and before the said Feast J. M. dyed the said H. B. then living and that H. B. dyed before the said Feast Per. Cur. the Plea is good the words then living shall not refer to the time of J. M. death but to the Feast mentioned in the Condition 1 Anderson Bold and Molineux Payments A Condition to perform all Covenants Payments and Agreements contained in a Deed Poll. The Defendant pleads the Deed Poll in haec verba in which was contained one Grant of Lands for 100 l. and 200 l. to be paid in which was a Proviso If the Defendant should not pay for the Plaintiff to one J. S. 40 l. at such a day the Bargain should be void The Defendant pleads performance of all Covenants the Plaintiff assigns a Breach in not payment of the 40 l. The Defendant demuâ— Judgment pro Defendente The word payment in the Condition shall have relation only to such payments mentioned in the Deed as is compulsory to the Defendant but this was not for the Defendant may if he will forfeit his Land 1 Brownl Rep. 113. Briscoe and King Condition to pay when the Kings Majesty shall be Restored by Conquest Accomodation or otherwise the difference
and to be inrolled within six months otherwise they will be void as to Purcâ—sors 27 Eliz. c. 4. But now by the Statute of Frauds and Perjuries the day of the month and year of the inrolment of the Recognizances shall be set down in the Margent of the Roll where the said Recognizances are acknowledged and no Recognizance shall bind any Lands c. in the hands of any Purchasor bona fide and for valuable consideration but from the time of such inrolment 29 Car. 2.1 By whom acknowledged and how BAron and Feme enter into a Statute or Recognizance this binds not the Wife albeit she survives her Husband 10 Rep. 43. 2 Inst 673. If an Infant acknowledge a Statute or Recognizance its voidable by Audita Querela during his minority but he cannot avoid it after his full age neither by Audita Querela nor Writ of Error because of Infancy only Moor n. 206. Yelv. 88. Randale and Wale Co. 2 Inst. 673. Dyer 132. and the way to avoid it must be by inspection which cannot be after his full age 1 Bulst 187 188. Infant acknowledgeth a Statute and was taken in Execution and at full Age he brought Audita Querela to avoid the Execution Per Cur. the Audita Querela shall abate he shall not avoid it it being matter of Record but if he will avoid it it must be during his minority Moor n. 196. Worsleys Case 1 Anderson 25. Noy p. 16. A Recognizance acknowledged by an Infant and he was inspected and adjudged to be within Age and thereupon had a Scire Fac. against the Conusee and upon a niâ—hil returned it was adjudged the Recognizance should be void and he be discharged whereupon Error was brought for that there ought to be two nichils returned for two nichils amount to a Garnishment and without Garnishment and Oyer of the Party to whom the Recognizance was made it ought not to be adjudged to be cancelled and for this cause it was reversed And now because the Conusor is at present of full Age and cannot have a new Writ of Audita Querela to be inspected it was moved that he may have a new Writ comprehending the first Inspection and the Judgment thereupon and shew that the first Judgment was only reversed for Error in the Proceedings and upon all the matter to be relieved and so it was done Cro. Jac. 59. Yelv. p. 88. Randale and Wale A Recognizance within the Statute 23 H. 8. c. 6. cannot be good except the Seal of the Party be to it Before whom taken THey may not be acknowledged before any other Persons but such as are appointed by the Statutes Other Recognizances besides those on 23 H. 8. may not be acknowledged before any but such as have Power ex Officio as the Judges of the Courts at Westminster or by special Commission to take them Dyer 220. Out of the Commonalty of London there shall be two Merchants chosen and sworn and before one or both of these Merchants the Recognizances may be taken Stat 14 Ed. 3.11 8 R. 2.4 The Recognizance upon the 23 H. 8. c. 6. in nature of a Statute-Staple is always to be acknowledged before the Chief Justice of the Kings Bench or Common Pleas in the Term time or in their absence out of Term before the Mayor of the Staple at Westminister and the Recorder of London All the Judges may out of Term take Recognizances in any part of England and if it be taken before the Chief Justice of the Common Pleas at Serjeants-Inn in Fleet-street out of Term its good Hob. 195. Every Court of Record of any note hath this Authority incident to it to take Recognizances for all things which concern the Jurisdiction of the Court and of all things which arise of or by reason of the Matters there depending so it is taken before the Mayor and Aldermen of London 1 Leon. 384. Holinshead and Kings Case The Custom of London to take Recognizances and the Form of the Declaration Cro. El. p. 186. Chamberlein and Thorp 1 Leon. 130 131. Where Actions to be brought on Statutes and Recognizances H. Brought Debt against W. and declared upon a Recognizance taken before Chief Justice Hobart at Serjeants-Inn in Fleet-street London out of Term and laid his Action in London whereupon the Defendant demurred The Question was whether the Action ought to be brought in Middlesex where the Recognizance is recorded or in London where it was acknowledged Now in this Case the inrolment of the Record that the Recognizance was taken before Hobert at the time and place aforesaid by which it was a Record ipso facto then and there and the inrolment is but a confirmation of the same Record and makes no change but because they both concur to the making it a perfect Record the Action may be brought in either County but by Hobert in London as the more worthy part of the Act and a Scire fac upon such a Recognizance shall be directed to the Sheriff of London and not of Middlesex but if the entry of the Record were general that the Recognizance was taken before Hobert it shall be understood in Court and then the Action shall be brought in Middlesex Hob. Rep. p. 195. Hall and Winkfield 2 Rolls Rep. 182. 1 Brownl p. 69. Allen Rep. 12. Andrews and Harborn In the Common Pleas its good both ways in B. R. it ought to be where the Recognizance is taken Stiles p. 9. Andrews Case Debt brought in the Common Bench on a Recognizance in London Cro. Eliz. Wilfords Case Statute Staple suable in the Kings Bench or Common Pleas as well as in Chancery Cro. El. p. 208. Clavel and Mallory Audita Querela in the Common Bench for that the Conusor was within Age at the time of the acknowledgment and well brought there mesme Case 1 Leon. 303. so in B. R. and the entry of the Inspection vide Cro. El. 208. A Recognizance taken by the Custom of London makes the Debt local vide 1 Leon. 130 131 284. Scire Facias SCire Facias in the Kings Bench on a Recognizance may not be general without shewing the time of the Recognizance and other particulars for it is but a Pocket Record therefore it is to shew what date it is for otherwise the Party may not know what Matter to plead and perhaps it is released or cancelled and a Man may not plead a Release after nul tiel Record Qu. 2 Siderfin p. 156 159. B. R. Alston and Body He that sueth forth a Scire fac in Chancery to defeat an Execution on a Statute-Staple shall find Surety to prosecute with effect If the Statute hath but one Seal it shall take effect as an Obligation Moor n. 520. 2 Rolls Abr. 149. Aiscue and Hollingsworth Cro. El. p. 494. contra A Recognizance is entire and being discharged in part is discharged in the whole but if the defeasance be to be paid in several Sums there an Acquittance of part is not a
good against the Heir tho the Executors have Assets he may have his Election 1 Anderson p. 7. Sir Ed. Capels Case Debt lies against the Heir of an Heir upon Obligation of the Ancestor to the 10th degree Noy 56. Dennyes Case The Obligee shall have a joint Action against all the Sons in Gavel-kind 11 H. 7.12 b. Debt against three Heirs in Gavel-kind the Defendant pleads C. one of the Heirs is within Age. The Heir of an Heir shall be chargable with an Obligation simul cum the immediate Heir and such Heir shall have his Age Moor n. 194. Hawtree and Auger 1 Anderson p. 10. n. 22. id Case If a Man bind himself and his Heirs in an Obligation and leaves Land at Common Law and Gavel-kind the Creditors must sue all the Heirs and if there be Land on the part of the Father and on the part of the Mother and both have Land by descent he shall have several Actions and Execution shall cease till he may take it against both so that the Construction of Law is stricter where the Heir is charged with Warranty real than when he is charged with a Chattel Hob. p. 25. Riens per descent pleaded and what shall be Assets J. S. by Will deviseth his Land to his Heir at 24. and if he die without Heir of his Body before 24. the Remainder over he attains 24. a Fee-simple descends for no Tail shall arise before his said Age which Tail shall never take effect 2 Leon. p. 11. Hind and Sir John Lion id Case 3 Leon. p. 70. The Father bound in Obligation and deviseth his Lands to his Wife till his Son comes to 21 years of Age the remainder to his Son in Fee and dies the Son shall be adjudged in by descent 2 Leon. 123. fol. 101. Bashpooles Case 3 Leon. p. 118. The Ancestor was seised in Fee and by his Will deviseth them to the Defendant being his Son and Heir and to his Heirs on Condition to pay his Debts within a year and if he failed his Executors shall sell he entred and paid no Debts the Executors after entred and sold It s not Assets in Heirs hands for though the Heir hath a Fee yet he hath it as a Purchaser being clogg'd with such a Condition Cro. M. 5 Car. p. 161. Gilpins Case Two things requisite to bind an Heir 1. Lien express 2. Lands by descent In Debt against an Heir he is charged as Heir and the Writ is in the debet and detinet and it s not in auter droit but taken as his proper Debt from 18 Ed. 2. till 7 H. 4. If the Executor had Assets the Heir was not chargeable but now the Law is changed in that Point if the Heir sell the Land before the Writ purchased he is discharged of the Debt in regard he is not to wait the Action of the Obligee Trusts descending shall be Assets by the Statute of Frauds and Perjuries so Lands of special Occupancy vid. Stat. The Defendant pleads his Father was seized in Fee and covenanted with J.S. c. to stand seized to the use of himself for Life the Remainder to the Defendant in Tail c. the Father had caused a Deed to be engrossed and delivered the Deed to a Scrivener to the use of J. D. and M. so as J. D. would agree to it J.D. died never having notice of the Deed Per Cur. the Father never covenanted because the Agreement of J. D. was a Condition precedent to the essence of the Deed and so no Deed to raise the Uses contra the Defendant Moor n. 426. Degoâ— and Rowes Case id Case 1 Leon. 152. n. 211. The Heir pleads riens per descent special Verdict find the Father was scised in Fee and enfeoft J. S. of the Mannor of P. excepted and reserved to the Feoffor for life two Acres only the Lands in question and after limited all to the Feoffees to the use of the Defendant in Tail Per Cur. the Lands do descend to the Son the Exception being void 2 Keb. p. 667 â—19 Wilson and Armorer Upon riens per descent pleaded special Verdict find M. seised in Fee de Saliva Anglice a Salt-pan died and his Son entred and was seised and the Defendant entred as Heir per possession fratris this is Assets by descent and such Heir per possession ' is chargable to the Debt of the Ancestor 3 Keb. Tr. 28 Car. 2. f. 659. Clinch and Butler The Heir pleads riens per descent the Defendant had levied a Fine but because no Deed of Uses was produced at Trial the Use was to the Conusor and his Heirs and so the Heir in by descent Mod. Rep. p. 2. Riens per descent pleaded Feoffment pleaded at the Trial it appeared to be fraudulent it need not be pleaded but may well be given in Evidence 5 Rep. 60. Gooches Case Debt vers l'Heir he may plead in Bar a Release made by the Obligee to the Executors and though the Deed belongs to another yet he must shew it forth for both of them are privy to the Testator Co. Lit. 232. a. Upon riens per descent pleaded it was found he had Assets in the Cinque-ports Judgment was general against the Defendants and as to the Moleties of the Lands in the Cinque-Ports the Plaintiff 〈◊〉 have a Certiorari to remove the Records into Chancery and thence by Mittimus to send to the Constable to make Execution 1 Anderson n. 65. p. 28. Hicker and Harrison vers Tirrel 3 Leon. p. 3. The Heir pleads riens per descent the Plaintiff replies he sued a former Writ vers l'heir and the Defendant was outlawed which was reversed and he freshly brought this Writ by journeys accompts and avers he had Assets the day of the first Writ purchased Hob. p. 248. Spray and Sherrat Cro. Jac. 589. id Case cited Debt vers l'heir the Defendant pleads his Ancestor died Intestate and that one J. S. had administred and had given the Plaintiff a Bond in full satisfaction of the former upon Issue joined it was found pro Def. If the Obligor had given this Bond it had not discharged the former but being given by the Administrator so that the Plaintiffs security is bettered and the Administrator chargable de bonis propriis it s a good discharge Mod. Rep. 225. Blith and Hill He pleads riens per descent but 20 Acres in D. in Com. Warwic The Plaintiff replies more by descent in S. viz. so many Acres and found pro Def. and a discontinuance in the Record of the Plea from Term P. to Term M. assigned for Error and per Cur. its Error and not deins Stat. 18 Eliz. because the Judgment was not founded on the Verdict but upon the Confession of the Defendant of Assets Yelv. p. 169. Hill 7 Jac. B. R. Molineux Case The Heir pleads the Obligor died Intestate and J. S. administred and he had given the Plaintiff another Bond in full satisfaction of the former vide Mod. Rep.
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
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
pro Querentâ— On non est factum pleaded it had been well enough so if this had been a Condition to pay Qu. if there be no sufficient words of Obligation to the Plaintiff Siderfin p. 290. 2 Keb. 81. Queen Mother versus Challoner Variance between the Obligation and Count shall not be shewed after imparlance 1 Brownl 95. Percher and Vaughan Variance in the Sum. THe Declaration was the Defendant stood bound to him in Septingent ' quinquagent ' libris and produced his Writing Obligatory and upon Oyer the words were Septuagint ' and quinquagint ' libris The Defendant pleads the Variance and demurs thereupon Per Cur. that is no cause to abate the Writ The Defendant then pleaded non est factum and the Jury found that the aforesaid Writing Obligatory de summa Septuagent ' quinquagint ' librarum per quod praedict W.W. per breve suum exegit de praefat ' T.P. infrascript septingent ' quinquagint ' libras was sealed c. sed utrum super tota materia c. the Court awarded the Plaintiff should recover the 750 l. and Costs Hobart 116. Walter and Piggots Case The Obligation was octigint ' and the Declaration octogint ' and Variance pleaded See the form of Pleading and entring Judgment Hobart p. 19. Fitzhughes Case Upon Oyer it appears no sum is mentioned in the Condition and the Declaration is to pay so much Per Coke it s a material Variance and the Obligation is single and no day being set down its payable on request and so the Declaration is good 2 Bulstr. 156. Dorrington and VValler Debt in York on Obligation of 13 l. Plaint was in plicito debiti 14 l. which variance was assigned for Error 2 Keb. 590. Vavisor against Bellingham Variance in the Names and Additions Misnomer MOlineax enters his Original in the Common-Bench against Marâ—ham in Debt on a Bond per name of J. Markham Alderman de D. and declares against him by the name of Markham de D. Esq and Judgment was given pro Quer. sur Verdict it was adjudged Error Yelv. p. 120. Molineax and Markham The Plaintiff in the Obligation was named J. Thorney de Fenton in Com' Not ' Armig ' and in the Declaration he was named J. Thorney Armig ' To de Fenton in Com' Noi ' were left out The Defendant demands Judgment of the Bill for this Variance Per Cur. respondeas ouster for this is no Variance to abate the Bill when he is well named is his proper Name and Sirname the addition is not material otherwise if it were of the part of the Defendant Cro. Eliz. p. 312. Thorney and Disney Declaration is on a Bond by Edmund Shephard for so it was signed and shews a Bond of Edward Shepard Noverint c. me Edwardum Shephard c. Upon non est factum the Jury found it the Deed of Edmund Shepard and Judgment was Arrested for they are distinct names And though it be subscribed by the name of Edmund yet that is no part of the Bond he ought to have brought his Action according to the Bond Cro. Jac. 640. Maby and Shepard Cro. Jac. 558. Watkins and Oliver Count quod praedict ' Jacobus per nomen Joâ—annis W. per quoddam scriptum c. upon Oyer the Defendant by the name of John W. fecit scriptum The Condition was if James W. paid The Defendant Demurs Per Cur. the Action lay not for John cannot be James Crook Eliz. 897. Feild and Winlowe W.S. is bound by the name of J. S. Action brought against him by the name of J. W. alias J. On non est factum adjudged the Plaintiff shall not recover the Action should be against J. as he is named in the Obligation 11 Eliz. Dyer 279. The Defendant pleaded variance between the Obligation and the Declaration for the Obligation was Randal and the Declaration was ad respondend ' Randulpho alias Randal Q. if Randulphus be Latin for Randal 3 Leon. p. 232. Babington's Case In the Writ he was named Son and Heir apparent and in the Declaration Son and Heir generally for this variance the Judgment was reversed Crook Eliz. 333. Annesby and Stokes When a Man appears and pleads he hath lost the advantage of Misnomer 2 Rolls Rep. 50. Sir Francis Fortescue's Case If he is named Saxex in the Original and Saxey in the alias dict' its variance for he ought to declare against him by the name he was at the time of Sealing the Bond and as he is named in the Condition and the alias dict' is for no other purpose but to make the name agree with the name in the Bond. If Action be brought against J. S. who at that time was Esquire and afterwards he is made a Knight there he shall declare against J. S. Armig. alias dict J. S. Mil. But in the first case it was no Error it being an easie Mistake 1 Bulstr 216. Saxey and Whemson Variance in time of payment of Entry THe Bill was Be it known c. to be paid at two payments that is to say 5 l. to be paid the 19th day of November which is the present of this Month and the other 5 l. the 10th day of December and the Bill was dated 17th Nov. 1604. The Plaintiff declares the Defendant did acknowledge himself to owe the Plaintiff 10 l. to be paid to the Plaintiff at two payments viz. 5 l. to be paid the 19th of November then next following and the other 5 l. to be paid the 10th day of December then next following On non est factum the Jury found the Special Matter The Question was Whether the Bill maintain the Count for the first payment and adjudg'd it did Brownl 1 Rep. 74. Prest and Cee The Count is of a Bond dated 1 May and the Entry is of 2 May on a Release pleaded and Issue thereon it 's good enough Aliter on non est factum 1 Keb. 426. Billage and Blake Oyer monstre des faits IF no Oyer be demanded it 's intended a single Bill 1 Keb. 937. Coxall and Sharp In Debt on Obligation the Defendant avers the Obligation was for security of certain Rent c. without demanding Oyer of the Condition it 's but as a single Bill and he cannot aver a Condition and so upon Demurrer adjudged pro Querente 1 Rol. Rep. 425. Baylee and Harrington The Law in Henry the Seventh's time was That the Defendant need not shew forth the Indenture of Covenants on Oyer demanded 6 H. 7.12 13. 9 H. 7.17 13 H. 7.18 The Defendant craves Oyer of the Obligation ei legitur and then of the Condition ei legitur And this was for performance of Covenants in an Indenture and after Oyer of the Condition the Entry on the Roll was That the Defendant prays Oyer of the Indenture mentioned in the Condition which was not brought into Court ei legitur The Plaintiff demurs for that the Defendant hath prayed Oyer of an Indenture which was not brought
Release to the Obligor dated the first of March and delivered the first of June by which he releaseth all Actions ab origine mundi until the date of the Release Per touts Justices the Obligation is not released Cro. Eliz. p. 14. Sir William Druries Case T. J. Doth acknowledge himself fully satisfied and discharged of all Bonds Debts or Dues whatsoever by T. O. this acknowledgment by Deed is in Judgment of Law a Release of all Bonds tho' the word Discharge is not properly said of the part of Obligee but of the Obligor 9 Rep. 52. b. Hickmots Case Debt on a Bond not forfeited at the day of payment being not then come the Defendant Pleads a Release and found against him in Arrest of Judgment it was adjudged for the Plaintiff for the Defendant did not take advantage of it as he might but waved it and pleaded a collateral matter which was found against him Cro. Eliz. 68. Frishi Case Debt on Bond dated the 24 of June 9 Cor. The Defendant pleads that the Plaintiff the 22 of Feb. 10 Car. Released to him all Actions and Demands which he had c. to the day of the date thereof The Plaintiff demands Oyer of the Release which was a Release of all Actions unto the 14 of January before the date of the Release for this misprision the Plea was adjudged ill Cro. Car. 426. Dyer and White A Man may not release a personal thing as an Obligation upon a Condition subsequent but the Condition will be void because a personal thing once suspended is extinguished perpetually but a Man may release it upon a Condition precedent for there the Action is not suspended until the Condition performed 1 Rols Abr. p. 412. Barkley and Parkes adjudged on Demurrer Where the Release was of an Obligation with a Proviso that he who releaseth this might enjoy 120 l. due by J. S. to the Obligor at a day to come then after which the Court adjudged a Condition precedent because the 120 l. was not due at the time of the Release but at a day to come 1 Rols Ab. 415. Mesme Case In Debt on a Bond of 200 l. for payment of 104 l. at a day on Oyer and Entry of the Bond and Condition The Defendant Pleads the Plaintiff did Release praedictum scriptum Obligatorium by the name of an Obligation in 200 l. for the payment of an 100 l. It s not a good Plea tho' it was averred there was no other Bond made by the Defendant to the Plaintiff for tho' a greater sum includes a Lesser as to tender yet the Debt and Duty is entire and therefore cannot be discharged by a Release of a lesser Sum Allen p. 71. Chace and Gold T. G. Covenants with another that B. A. a Stranger shall pay to A. a Stranger and the Covenantee 10 l. per Annum A. the Stranger takes Buck to Husband who releaseth the payment he cannot Release it for this was not any Debt or Duty in Buck or his Wife they had nothing in it nor remedy but for non-payment the Covenantee shall have an Action of Covenant Rols Rep. 196. Quick and Harris Bond taken in the name of the Plaintiff as Trustee for the younger Brothers from the elder Brother Conditioned to pay younger Brothers Portions The Defendant pleads a Release of all Actions Suits and all Debts on the Plaintiffs account Per Cur. it must be intended of all Debts whereof he hath the sole disposition and so he had not here Judgment pro Querente 2 Keb. 530. Stokes and Stokes Debt on Obligation Conditioned to perform Covenants in a Lease for years The Defendant pleads Conditions performed The Plaintiff assigns a Breach of non-payment of Rent The Defendant to this rejoyns a Release of all demands and per Cur. the Rent is not released by this being a Rent Executory and not a sum in Gross and Judgment pro Querente Siderfin Hen and Hanson Two are bound joyntly and severally a Release to the one Obligor is a Discharge to the other but a Release to an Executor of a joynt Obligor is void Cro. Car. 551. Dennis and Paine 1 Keb. 936. Scot and Littleton The Defendant pleaded that he was bound in the Bond simul cum R. G. to whom the Plaintiff had released all Actions and demands the said first of May which was the date of the Obligation the Plaintiff by Replication shewed that after the Obligation Sealed by R. G. he released to him and that afterwards the same day the Plaintiff Sealed the Bond This Release per Cur. doth not discharge the Defendant Cro. Eliz. p. 161. Mannings and Townsend Two are sued joyntly and severally the Obligee brings Action against the one and makes a Retraxit of his Suit Q. if this Retraxit is in nature of a Release and so if pleaded it be a Bar to Sue the other But in Cro. Jac. 211. Beechers Case it s an absolute Bar had it not not been for other faults in the entry Cro. Car. 551. Dennis and Paine March 95. Mesme Case Two are bound Obligee releaseth to one provided that the other shall not take benefit of this Release it s a void proviso Lit. Rep. 191. Debt on Bond the Defendant pleads a Release of all Actions and Suits in Bar. The Plaintiff demands Oyer and an exception of one Bond was therein contained The Defendant replies that was the Bond in Suit and that the sum excepted and the person are all one the Defendant demurs for Actions and Suits being released serve to no purpose the Obligation being excepted Per Cur. the Obligation it self being excepted all Actions and Suits concerning it are also excepted Cro. Eliz. 726. Brook and Wheeler The Defendant pleads a Release and sets it forth c. to be fully satisfied all Bonds Debts and dues c. and that he the Obligee is to deliver all such Bonds as he hath yet undelivered to T. O. the Obligor except one Bond of 40 l. yet unforfeited which is for the payment of 22 l. and wherein the said T. O. and R. O. his Brother stand bound to him and saith that he ought not to be barred for the Obligation of 40 l. so excepted and the said Obligation hic in Curia prolat ' are one and the same Resolved that the said exception shall extend to all the Premisses and not only to the clause of delivery But by the Plaintiffs confession in his Replicacation it appearing the Bond excepted was joynt and he bringing it against the Defendant only hath abated his own Writ 9 Rep. 52. Hickmots Case Release of an Obligation bearing date the same day and the Release is of all c. usque ad diem datus this doth not discharge the Obligation 2 Rol. Rep. p. 255. Green and Wiloox The Plaintiff and Defendant submitted themselves to Arbitrament and it was Awarded that there should be a Release made of all Reliefs Duties and Amerciaments and this Release pleaded in Bar to Debt
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
Plea notwithstanding it was not shewed by what Process he had Execution because the Execution is on Record and shall be tried by the Record but if he paid the Monies in Pais to the Plaintiff and not in Court it is not an Execution of the Judgment Mo. N. 91. The Defendant pleads That the Plaintiff in the King's Court at Penwarth brought Debt upon this Obligation against T. who was bound with him in the said Bond joyntly and severally and recovered and had him in Execution and that the Gaoler voluntarily suffered him to go at large It was Demurred 1. Because he doth not shew the Court had power to hold Plea 2. The Plea is not good in substance for this Escape is no discharge of the Debt and therefore the Action lies against the other 5 Rep. 86. Blumfield's Case Cro. Jac. 531. Pendavis's Case Two bound joyntly and severally the Obligee brought Action against one and retraxit his Suit Q. If this be a Bar to sue the other Obligor But the Retraxit being pleaded in the Court of Record in Poele and it not being alledged that this Court had power to hold Plea per Patent or Prescription It is an ill Plea Jones p. 451. Dennâ— and Paine If a man be bound by an Obligation and afterwards promiseth to pay the Mony Assumpsit lies upon this Promise and if he recover all in Damages this shall be a Bar in Debt sur le Bond Co. Lit. p. 240. Ashbroke and Snape Venue Bond where Triable When the Obligation is made beyond Sea AN Obligation made beyond Sea may be sued here in England in what place the Plaintiff will as if it bears date at Bourdeaux in France it may be alledged to be made in quodam loco vocat ' Bourdeaux in France in Islington in the County of Middlesex and there it shall be tried for whether there be such a place as Islington or not is not Traversable Co. Lit. p. 261 b. One sues in the Admirals Court upon a Bond made in partibus Maritimis Virginiae and so he may if he will suppose the Contract in Virginia and if he will suppose the Contract in England he may sue here But if part of the Contract be here and part beyond Sea in Virginia or upon the Sea the Common Law shall have Jurisdiction 2 Rol. Rep. 492. Capp's Case Where part is to be done within the Realm and part out of the Realm the Plea ought to be Triable within the Realm Condition was for 40 l. to be paid within 14 days next after the Return of one Russel into England from the City of Venice The Defendant pleads in Bar that the said R. was not at Venice The Plaintiff demurs and it was Adjudged a naughty Plea 1 Brownl p. 49. Hales and Bell. Where the Condition contains Matter not Triable the Condition is void Mo. N. 201. The Issue was the Obligor was never at Rome but if the Matter is parcel Triable its good enough Molineux A Declaration upon a Bill dated in patoch ' Sanctae Mariae de Arcubus in Lond ' and upon Oyer it bore date at Hamborough It s triable here Latch p. 4 77 84. Ward and Kidson Cro. Jac. fo 76. Higham and Flower An Obligation sued in the Admiralty supposed to be made and delivered in Chancery Per Cur ' such a Bond may be sued here but being begun there we cannot prohibit them For the Plaintiffs Witnesses may be beyond Sea 3 Leon. p. 232. Delabreche's Case Debt on Obligation dated in Surry brought in London The Counsel pleaded Stat. 6 R. 2. cap. 2. that all Obligations ought to be sued in their proper Counties as dated and prayed Judgment of the Writ Per Cur ' its a frivolous Plea the Law being clear that unless the Obligation appear in the Count or on the Pleading to be out of the County although it bear date out it s not material where it s brought 1 Keb. 593. Pretty and Roberts Debt on a Bond of 60 l. for the payment of 30 l. 10 s. at Coventry Issue was taken that the Mony was paid at Coventry yet by consent of Parties and Paper on the Rule of Court Issue was found pro Querente at London and Judgment but it was reversed for this Error Consent of parties cannot change the Law Hobart p. 5. Crow and Edwards Recognizance taken before a Judge at Serjeants Inn in Fleetstreet London out of Term the Action was laid in London and not in Middlesex and good and the Scire facias shall be directed to the Sheriff of London but if it were taken in Court or generally it shall be in Middlesex Hob. p. 195 196. Hall and Winckfield Place of Payment in the Condition DEbt in Havering in Essex The Condition was for payment of 20 l. to the Plaintiff at his House at S. in Kent The Defendant pleads payment at the day c. Secundum formam effectum indorsamenti pradict ' and Error was assigned for that the Issue was tryed at Havering and not at S. in Kent Non allocatur For when a thing Issuable is alledged and no place this shall be tryed where the Action is brought and Secundum formam c. refers only to the Time and not to the Place For the Place is not material payment being made to the Obligee and it appears not but S. in Kent may be in the Jurisdiction of Havering Cro. Eliz. p. 105. Newe's Case Condition was if he pay 50 l. at his House at Lockington in the Parish of Kilmerston that then c. The Defendant pleads payment c. and the Venire issues of the Venue of Lockington and good for it shall be intended a Village in the Parish of Kilmerston for divers Villages may be in one Parish But if it had been at his House in Lockington in Kilmerston then it shall not be intended a Village but a place known Cro. Eliz. p. 117. Pike and Cottington 3 Leon. 193. Cro. Eliz. 804. Kerchever and Wood. Payment pleaded apud domum mansionaliâ— Rectoriae de M. Venue was de M. and good and M. shall be intended a Vill. Condition for the payment of 100 l. at his House in Cheapside the 21 of June next ensuing the date hereof The Defendant pleads that on the 21th of January then next following the date of the Condition of the Obligation aforesaid he paid the 100 l. at the Plaintiff's House in Cheapside Secundum formam c. It s good enough though the Condition hath no date for the Condition and Obligation are as but one Deed But because it s not alledged in what Parish or House the Ward is its Ill because of a Venue and Trial a Parish and Ward in London are as a Vill and Hamlet in other Countries Cro. Eliz. pag. 372. Forth and Harrison Condition was that the Defendant should pay so much Mony in an House of the Plaintiffs at Lincoln The Defendant pleads payment at Lincoln aforesaid and Issue c. The Venire was
the Defendant shall pay to the Plaintiff within 28 daies after demand by her made at his House 100 l. that then c. The Defendant pleads that the Plaintiff on the 4 of May 30 Eliz. departed out of his Service without License The Plaintiff replies that 6 of Sept. the same year she departed out of his Service with License and that the 4 of Octo. after she demanded the 100 l. and he refused absque hoc that she departed out of his Service the 4 of May 30 Eliz. Sans License and the Writ bear date the 18 of Octob. next after the demand fo that the Defendant hath not 28 days after the demand to pay the 100 l. Per Cur. the Issue is taken upon the departure out of the Service and the Defendant in his Plea hath relied upon it and the demand is not material 2 Leon. p. 100. Monings and Warley Condition to pay a Robe and an Horse one cannot make several Issues as he paid not a Robe hoc petit c. he paid not an Horse hoc petit c. aliter in Covenant 2 Keb. 69. Young and Gosling Verdict DEbt on Obligation against C. per minâ—â— pleaded and Verdict and Judgment in the Court of B. The Jury in assessing off Damages say pro misis custagiis but do not say circa sectam expenditis and there is no Verdict to warrant the Judgment and it was Error Stiles 164. Crible and Orchard After non est factum by one pleaded the Jury find the Bond sealed by two it alters not the Bond but they are as distinct Deeds 2 Keb. 872. 881. Zouch and Clay Condition for the payment of 300 l. within six Months after the Death of the E. of Huntingdon The Defendant pleads the 1 of May. 39 Eliz. the Earl died and that within six Months after viz. the 1 of Dec. 41 Eliz. he paid the sum Issue was he did not pay it mode forma The Jury found he did pay it the 1 of Dec. 41 Eliz. and so for the Plaintiff this was Error the payment alledged the 1 of Dec. 41 Eliz. is void it ought to have been enquired whether he had paid it within the six Months and Judgment shall not be given on his implicit confession of Non-payment within the six Months Cro. Eliz. 823. E. Huntington versus Hall The Verdict was non solvit the said 40 l. super quartam dem Octobris where it ought to have been supra quartam decimam Judgment on this Verdict and Error brought yet amended Cro. Jac. 185. Harrison against Fulstowe Condition for the payment of 100 l. by J. A. J. C. and J. V. or any of them J. A. pleads that he paid it at the day the Plaintiff replies that neither the said J. A. J. C. nor J. V. nec eorum oliquis had paid it at the day the Jury find that the said J. A. had not paid the said 100 l. Judgment pro Querente Error assigned because the Verdict was not according to the Issue for it might have been paid by any of the others Per Cur. it s a good Verdict the addition of J. C. and J. V. not mentioned in the Bar was but Surplusage and their finding J. A. did not pay the Mony its sufficient and if it had been proved that any of the other two had made the payment the Jury should have been directed to find that the Defendant had paid it by such Cro. Jac. p. 6. Arscott and Heale Judgment Costs and Damages WHere the Plaintiff had a Verdict for him there Judgment is quod recuperet debitum dampna and Costs assessed by the Jury and further de increment ' per Cur. But if he had Judgment on non sum informatus Demurrer or nihil dicit the Judgment is quod recuperet debitum damna which include the Costs In the Common Bench it is quod recuperet debitum damna occasione detentionis 2 Rols Rep. 470. Broad and Nurse Judgment quod recuperet debitum 6 s. 8 d. pro damnis occasione c. and no mention pro misis custag quod inquir ' damna includes both and so is the course of Entry Cro. Jac. 420. Ashmores Case The Judgment was quod recuperet debitum suum and doth not say praedict ' its good enough there is but one Debt and the ideo in the Record implies it to be the same Debt Stiles 251. Port and Midleton The Court may tax Damages without a Writ of enquiry in Debt on a Judgment upon Bond Siderfin p. 442. Roo and Apsley H. 21. and 22. Car. 2. Action of Debt on several Obligations having but one Count and several Issues some found for the Plaintiff and some for the Defendant and several Damages but intire Costs It was prayed that Judgment may be reverst as to part But a Judgment cannot be reverst in part neither as to persons or things and Hobart p. 6. Miles and Jacob denied to be Law 1 Keb. 232. Anonymus Debt sur Obligation of 16 l. Plantiff declares ad damnum 10 l. On non est factum found pro Querente The Jury gave the Plaintiff Damages 9 l. besides the 16 l. and he declares but to his Damages of 10 l. and so it exceeded But Judgment pro Querente for the Court may increase Costs Noy 61. Wolf and Meggs The Plaintiff Demurs on the Defendants Bar and the Court awarded the Plea good upon which Judgment the Plaintiff â—â—rt Error and therein the Bar awarded insufficient and so the Judgment reverst and the Judgment was that the Plaintiff should recover his Debt and Damages as if he had recovered in the first Action and not to be restored to his Action only Yel p. 41. Taylor and More In Misericordia or Capiatur WHere the Party denies the Deed of his Ancestor and it is found against him by Verdict Misericordia shall be entred against him and not a Capiatur Where the Party denies his own Deed and it is found against him by Verdict a Capiatur shall be entred against him 2 Sanders 191. Mortlack and Charlton Where the Defendant pleads non est factum and after diverse Continuances relictd verificatione confesseth the Action Qu. if Judgment shall be given on the Plea or on the Confession 8 Rep. Beechers Case is that a Capiatur shall be entred but the better Opinion is that the Defendant shall not be fined but amerced and a Misericordia shall be entred against him on his own Confession and so is the course to enter in Com. B. and B. R. also 2 Sanders 191 192. The reason is good in Cro. Jac. 64. Davis and Clark and 2 Rols Rep. Gerard and Warren For tho' the Defendant by his false Plea hath delayed the Plaintiff of his Action yet the Capiatur is not for the delay but for the falsity rather And then when he comes in and before Verdict confesseth the truth he saves his Fine for he hath put the Court to no trouble 2 Keb. 694.