the first Scire Fac. for hereby the Plaintiff is put by his debt and the Executors may be insolvent 2 Keb. p. 127. Coopers Case Scire Fac. against B. and others as Bail for P. P. being Condemned and not rendring his Body to Prison Scire Fac. was brought against them upon this Recognizance they pleaded that P. such a day before the day in the Recognizance paid the Mony this is a good Plea in it self for the Recognizance as to them is but an Obligation upon a Condition upon which they might well plead performance but the party in the Scire Fac. upon this Recovery cannot plead it except satisfaction be acknowledged on Record for by nude payment he shall not avoid matter of Record Cro. Eliz. p. 233. Brunckhorns Case Cro. Eliz. 31. Ordway Manucaptors in Scire Fac. plead that the principal was taken by Capias and deteined till he paid the Mony payment is a good Plea but no place of payment being alledged its ill and Judgment pro querente 2 Keb. 577. Farrel and Sheen Mod. Rep. 14. Mesme Case Payment before the return of the Scire Fac. by the principal is no Plea yet before the Writ of Scire Fac. brought it is by the Bail Bail pleads payment by the principal before the Scire Fac. viz. the same day after Capias taken out it s no Plea nor saves the Recognizance 3 Keb. 349. Barford and Peel In Scire Fac. Bail pleads that the principal had entred himself before Tho. Twisden Justice c. in discharge of his Bail and the entry was Quod reddidit se in exonerationem manucaptorum hoc Paratus est verificare The Plaintiff demurs because it should be prout patet per Recordum Presidents are both ways Siderfin p. 216. Midleton and the Manucaptors of Silvester P. M. was Bail for the Defendant and before any judgment given the Plaintiff releaseth to P.M. all Actions Duties and Demands afterwards Judgment was given against the Defendant and upon his default Scire Fac. issues against P. M. who pleads the said General Release The Plaintiff demurs Per Cur. This Release shall not bar the Plaintiff for the Words of the Bail are conditional Scilicit si contingeret predict debita damna illa praefat querenti minime solvere aut se prisonae non reddere c. and it s not any duty certain till Judgment given and note diversity between a duty certain upon condition subsequent for this may be released before the day of the performance of the Condition and a duty uncertain at first and upon condition precedent to be made certain afterwards this in the mean time is but a meer possibility and may not not be released this Recognizance doth not create a duty presently but shall produce a duty after on a contingence 5 Rep. 70. Hoe and Marshal Audita Querela by the Bail after judgment against him for debt on Scire Fac. because he was within Age at the time of the Bail and by the Audita Querela he was discharged cited in Sir John Apsleys Case Cro. Eliz. 645. Yelvertons New Book of Entries p. 87. p. 155. Markam and Turner He cannot plead his Infancy to the Scire Fac. for this Suit goes in affirmance of the Recognizance and demands Execution of this at the day of the second Scire Fac. The Bail pleads nul tiel Record and then brings the Body of the principal into Court and prays that his Body may be taken in Execution Per Cur. if the Bail before or at the return of the second Scire Fac. bring in the Body of the principal his Body shall be put in Execution only but here they have pleaded and therefore if the party Plaintiff do not pray to have the Body in Execution he is not compellable to take him 2 Rolls Rep. 367. Cage and Doughty Second Scire Fac. is joint against the Bail Capias may issue out against one only for the nature of the Recognizance is not changed by the judgment in the Scire Fuc. brought upon this but that the Execution may be joint or several according to the Recognizance although the Scire Fac. was joint Siderfin p. 339. Gee versus Sir Francis Fane If three bind themselves jointly in a Recognizance Execution must go against them all and if they are bound severally there if the Scire Fac. be against all the Execution must be so too for by the Judgment they have made their election 2 Siderfin p. 12. Capias aginst the Principal and Judgment and after Scire Fac. against the Bail and Judgment thereupon the Plaintiff cannot take out one Execution of Scire Facias against ihe Goods and Chattels of the principal and Bail for there ought to be several Executions upon the several Judgments Stiles Rep. p. 290. Newton and Goddard Trin. 1651. Banc. sup Removal Error Hab. Corpus IN Scire Fae against Bail on removal of the principal by Error the Defendant pleaded the Writ of Error is yet depending this was on Bail below no Scire Fac. will be against the Bail especially out of an Inferior Court till the principal be determined Scire Fac. cannot be until Judgment be affirmed 3 Keb. 396 424. Caul and Bezar Debt brought in Inferior Court of Record and issue pro Quer. and Judgment given and had against the Manucaptors and Error brought in redditione judicii and the Record and Plea removed to this Court but not the Recognizance nor Judgment against the Manucaptors per Doddrige they have well done in removing only the Record and the Judgment against the principal and that they may well proceed to Execution and if judgment was not had against the Manucaptors after the Error brought then it ought to be removed by special Writ of Error 2 Rolls Rep. 494. Anonymus A. is Bail for B. Judgment in B. R. is given against B. B. sues Error in Exchequer Chamber there the Judgment is affirmed and Costs assessed A. shall be charged with the Judgment in B. R. but not for the Costs on the Writ of Error Noy p. 18. The Defendant was Bail in Inferior Court in Action of Debt Scire Fac. against him because the Principal did not render nor pay The Defendant pleaded that after the first Action brought and Bail found the Cause was removed by Habeaâ— Corpus and new Bail here accepted and afterwards the Cause was â—manded by procedendo and then Judgment given against the Principal The Question was if the old Bail be discharged by the Record removed Per Cur. If the Bail be here Recorded so as the Court is fully possess'd of the matter and the Term is past there the old Bail is absolutely discharged but if in the same Term the Record is remanded by procedendo it is as if it never had been removed and there is no Record of the removal thereof and the matter doth rest in the inferior Court Statu quo prius the first Bail is revived 2 Bulstr 287. Cro. Jac. 363. 1 Roll 64.
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
to a new Scire Fac. or to Debt on Recognisance Where there is a Condition it may be returned at a day certain and so may a Scire Fac. to revive a Judgment 2 Keb. p. 396 397. Allen versus the Manucaptors of Cutler Debt lies on the Recognisance of Bail 3 Keb. 707 734. Miles and Bateman but not before a Cap. and second Scire Fac. returned and filed on Judgment in Term Cap. may be at any time on Rule four days after Judgment W. recovered against B. in Debt and B. was brought to the Bar by Habeas Corpus procured by his Bail and the Plaintiff prayed he might be committed in Execution and also the Bail that he might be received in their discharge but B. having brought a Writ of Error it could not be hanging that Hob. 116. Wicksteds Case The Scire Fac. was to shew cause why Execution si sibi viderit expedire not saying fieri non debet Per Cur. it is ill and it is not amendable 3 Keb. 190. Mannel and Coltlowe After the Return of the second Scire Fac. it is too late to bring the Principal in and that is the reason that in such case a Writ of Error for the Bail to reverse the Judgment against the Principal Debt against the Principal and Judgment on Nihil dicit but no Ca. sa issued against him afterwards two Scire Fac. were taken out against the Bail and two Nihils thereon returned and on that Judgment given against the Bail The Judgment is erroneous but the Bail cannot bring a Writ of Error causa qua supra but he shall have an Audita Querela Stiles p. 323 288. Barcock and Thompson When the Judgment is grounded upon a Scire Fec the Bail is remediless 2 Keb. 51. Reynolds and Duel There ought to be a Cap. against the Bail before he can be charged and it ought to be shewed that the Capias was returned and filed against the Bail 3 Bulstr p. 341. Calf and Bingly If the Principal be dead before the Return of the Capias this must be avoided by an Audita Querela in Judgment against the Bail 2 Keb. 51. Reynolds and Duel The Course of the Kings Bench is that Default ought to be assigned in the Principal upon the Return of the Capias before the Bail shall be charged so in Com. Banc. Qu. which cannot be if the Principal be dead If the Principal render his Body though the Plaintiff refuse to take that yet that is a discharge of the Bail Winch p. 61. Sparrow and Sowgate How and when the Bail is discharged and of the rendring the Principal and the time of doing it THE rendring of the Principal to Prison is no discharge of the Bail till the Bail-piece which remains with the Secondary be discharged c. 2 Keb. p. 2. Booth and Nortrop One may plead reddidit se well enough without averring prout patet c. for that is only filed with the Bail-piece entred into at the Judges Chamber upon which the Secondary writes a reddidit se and so the party goes to the Marshal into Custody and thence returns to the Secondary and he enters a Committimus in exonerationem manucaptorum and if this Render be before the Return of the second Scire Fac. on the Bails Recognisance it may be well enough pleaded prout patet c. and this is the Course of the Court 2 Keb. p. 237. Anonymus Per Rolls Out of Indulgence to the Bail it hath been the use of later times that if the Bail do bring in the Principal before the Return of the second Scire Fac. which was taken out against the Bail thereupon to discharge the Bail But anciently it was not so but then it was counted too late to bring him in Stiles p. 134. M. 24 Car. 1. B. R. Quatermans Case The manner of Entry upon the yielding of the Body upon the Bail and if the party or his Attorny be present he must make his Election to take him in Execution or refuse him whereof Entry is to be made Qu. If he may after take him by Casa Hob. p. 210. Welby and Canning Judgment against a Bail on Scire Fac. which was sued out and two Nichils returned after the Party had rendred himself in Execution on the first Judgment Scrogs moved to have the said Judgment set aside Per Cur. there is cause of an Audita Querela but otherwise no remedy But the Attorny ought not to sue any Scire Fac. against the Bail after the Bail-piece dischaged but before he may 2 Keb. 475. Goreham and Boxhamâ— On affirmance of Judgment against the Principal Jones prayed the Bail may render the Principal before any Scire Fac. which the Court granted and his Render here is a Render below the Recognisance being removed and it may be done before any Judge in discharge of the Bail 2 Keb. 635. Bodam's Case Gardner prayed that the Principal may be accepted to tender himself there being no Capius issued against the Principal yet a Scire Fac. and two Nichils against the Bail are returned Sed non allocatur this is cause for an Aundita Querela And were there a Scire Fac. returned the Defendant may plead it but the Bail cannot otherwise be relieved 2 Keb. 536. Staunton's Case Duport recovered Debt against Wildgoose Upon this a Capias issued out against Wildgoose and the same returned and before it was filed a Scire Fac. issued out against the Bail the Bail for his discharge did suggest an Action against Wildgoose the Principal and had his Body in Court and being in Court he moved to have Wildgoose delivered in Execution for the Debt of Duport in dischage of himself in regard that if he should die before next Term he could not plead this to the Scire Fac. but should be then charged with the Debt which was granted Note that Duport did not intend to pray the Body of Wildgoose in Execution for his Debt though present in Court but his purpose was to have had his Surety in Execution for the same the Bail perceiving this for prevention did bring the Body of Wild-goose into Cour and prayed him to be committed in Execution for the Debt in exonerationem of him which the Court did 2 Bulstr p. 352. Duport and Wildgoose Capias must first be awarded against the Principal before Scire Fac. against the Bail for the Recognisance is that the Principal should tender himself c. which is intended upon Process awarded against him Cro. Eliz. 597. Hobs and Tedcastle The Mainpernors brought Error because there was not any Cap. ad satisfac awarded against the Principal before the Scire Fac. Per Cur. a Writ of Error lies well upon the Statute of 27 Eliz. but being certified upon diminution that a Ca. sa had been awarded the Judgment was affirmed Cro. Eliz. p. 730. Cokerin's Case One was bound by the Chief Justice to appear in B. R. the Court was moved to discharge him of his appearance because
he was before the day arrested and imprisoned at the Suit of another and it was done 1 Bulstr 170. Scire Fac. against the Bail for Non-appearance of the Principal and it is not mentioned that Process was awarded against him but that it was prayed ei conceditur but it is not ideo raecept est Vicecomiti c. as it ought to be and although he that was Bail doth not afterwards appear this might be without Process and so nor good Cro. Eliz. p. 177. Herd and Burstow The Bail cannot render the Principal on the day of the Return of the second Scire Fac. though before the Sheriff hath actually made his Return and this is the Pleading of the Render that such a day ante retornum and after Nul tiel Record pleaded the Bail cannot take advantage of this Render 1 Keb. 450 456. Hooper versus the Manucaptors of Gibbon The Bail must render the Principal sitting the Court the day of the Return of the second Scire Fac. So it is on a Declaration by the by which must be sitting the Court the last day of the Term 1 Keb. 899. Nicholas and Stokes Judgment was given against the Principal and after a Scire Fac. is brought against the Bail who appeared and pleaded Nul tiel Record of the Judggiven against the Principal and on the day given for bringing in the Record the Principal rendred his Body in discharge of the Bail Qu. if he might March Rep. p. 154. pl. 223. The Condition of the Bail is that they render his Body indefinitely without limiting any time in certain when they shall do it or pay the condemnation and by some if they plead such a Dilatory Plea as this they have thereby waved the benefit of bringing in the Body and by this trick the Plaintiff should lose all his Costs of Suit which he had expended in the Suit against the Bail Judgment against the Principal in B. R. upon this Judgment a Writ of Error is brought in the Exchequer-Chamber according to the Statute of 27 H. 8. Hanging this Writ of Error the Principal reddidit se prisonae in exoneratione of his Bail the Bail may plead this in their discharge the Record of the Bail is a distinct Record of it self hanging the Writ of Error the Bail may bring in the Body of the Principal at any time when he will but he shall not be prayed in Execution before Judgment be affirmed or disaffirmed Before the Return of the Scire Fac. against the Bail the Principal renders himself and hanging the Writ of Error dies by this the Bail is discharged 3 Bulstr 341. Calf and Bingly Stiles and Seagar Hobbs and Doncaster cited there A Committitur though no Judgment must be entred hanging the Writ of Error but if Judgment be affirmed the Party must pray to have him in Execution Jones p. 128. mesme Case At any time before the Capias awarded if the Defendant dye this dischargeth the Bail for the Recognisance is conditional scilicet to render his Body to prison if he were condemned or to pay the Condemnation And before a Capias he is not bound to render his Body and therefore by the Act of God being impossible by death to render his Body the Bail is discharged And before Capias awarded the Principal is not bound to render himself for the Plaintiff had Election to take out Execution by Elegit or Fieri Fac. as well as Capias Jones Rep. p. 138. Calf and Bingly Pleading and Execution IN Scire Fac. or Recognisance against the Bail the Defendants Plea was venit dicit c. Per Cur. he must say venit in propria persona or per Attornatum and neither shall be intended especially this being after a Demurrer though general 2 Keb. p. 388. Bolton and Clark When Scire Fac. issues upon the Recognisance the Bail and Principal have two ways to defeat this either by tender of the Body of the Principal or by Plea and if at the Return they appear by Attorny they have chosen to avoid the Recognisance by Plea 2 Rolls Rep. 382. Scire Fac. against C. as Bail for D. and shews he had such a Term Judgment against D. and that he did neither render the Body nor satisfie the Debt The Defendant pleads D. came into Court and rendred his Body to the Fleet in Execution and in discharge c. and that the Plaintiff did refuse to take him in Execution and the Plaintiff denied yielding of the Body and so Issue Per Cur. it is not well pleaded for the yielding of the Body being an Act in Court and in discharge of his Bail which is of Record must be it self of Record and therefore ought to be concluded prout patet per Recordum Hobart p. 210. Welby and Canning In Scire Fac. against the Bail they plead reddidit se of the Principal before the Return of the second Scire Fac. viz. 11 May. The Plaintiff prays Oyer of the reddidit se and the Return which was the 6th of May. The Defendant demurs Judgment pro Quer. 2 Keb. 542. Turner and Lufton In Scire Fac. against Bail or Judgment in Debt on Oyer of the Judgment The Defendant demurred because Scire Fac. is of a Judgment or Bill in Michaelmas Term whereas the Bail appears to be in Hillary but the Bill being against the Defendant as in Custodia the Bail may be at any time and heretofore the Bail was never put in before appearance as now used But in B. C. Bail is precedent to the Original in Habeas Corpus and is conditional to appear to the Original in two Terms 3 Keb. 124. Segar and Brome Executor brought Scire Fac. againg the Bail and declares that the Plaintiff did recover and that afterwards the Plaintiff dyed the Defendant not brought in by them The Defendant pleads no Capias was sued out by the Testator a good Plea 3 Keb. 190. Manuel and Coltlowe The Plaintif cannot have a Capias without a Scire Fac. Qu. And if the Defendant principal dye before the return of the Capias the Bail are discharged but not so on death before a second Scire Fac. Yet Cro. Jac. p. 97. Justice Williams against Vaughan The Defendant in Scire Fac. pleaded the principal was dead before the Scire Fac. brought ill Plea because he alledgeth not when he dyed nor that he dyed before the Capias Awarded and if once on a Capias non est â—nventus is returned the Recognizance is forfeited because there was default in the party and though it be usual if the principal render his Body upon the first Scire Fac. to accept it yet that is of grace not of necessity therefore the death at the time of the Scire Fac. brought is not material if he were alive at the Capias returned Cro. Jac. p. 165. Timperly and Coleman If the principal dye before the Capias returned the Bail may be discharged but never where he dyeth after though before the return of
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
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
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
afterwards released to his Executor the Release is void alit had the Obligation been joint and several 1 Keble 936. Scot and Littleton Joint Bond by three and Count General the Jointure appearing upon Oyer demanded the Court will intend they are dead or not sealed had the Declaration been on a joint Bond the Plaintiff must aver the death of the others or that they never had sealed 1 Keble 936. Tr. 17 Car. 2. Osborn and Crossland vide plus Doct. Placit 268. Two are bound jointly and one is only sued he may plead this matter in abatement of the Writ but he may not plead non est factum Co. L. 283. Two are jointly bound in an Obligation Action is brought against one of them only upon this the Defendant cannot demur but may plead in Abatement Siderfin 2.12 And if one of the Obligors die the Obligee in his Action of Debt against the other that survives must set forth in his Declaration that the other is dead Four were bound conjunctim divisim to B. B. had Judgment against them and one of them dies B. sues forth a Sci. Fac ' against the four its ill Stiles Trin. 23 Car. p. 50. Blackwell and Ashton When two are jointly bound in an Obligation though none of them is bound by himself yet none of them shall plead non est factum but he may plead in Abatement of the Writ for they had sealed and delivered it and every of them is bound in the entire 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. Whelpdales 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 i. e. the same day the Plaintiff sealed the Bond absque hoc quod simul tenetur cum R. G. The Defendant 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 the Demurrer but confess it Judgment pro quer ' Cro. Eliz. p. 161. Mannings and Townsend Two brought Debt on Bond the Defendant pleads that the Obligation was made to them and to one Bellamy and that they three had an Action of Debt depending against him Judgment si Actio and demur Adjudged pro quer because an Obligation made to two on which they counted cannot be intended an Obligation made to three and if it be a Plea it s in Abatement of the Bill Cro. Eliz. p. 202. Isan and Hichcock Debt on Bond by three brought against one without shewing the other two are dead the Plaintiff ought to shew the others were dead but in Whelâ—dales Case this advantage was waved 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 one Writing by three whereof two did not seal 1 Keb. fol. 840. Osborn against Cawthorns Executors Conditions of Obligations 1. The Nature of such a Condition 2. The distinct respects or differences thereof in our Law 3. What shall be said a good Condition of an Obligation and what not 4. The Exposition of Conditions or when a Condition shall be said to be performed and when not 5. How a Condition and Obligation may be discharged and gone by matter ex post facto The Nature of a Condition WHen an Obligation is clogged with a Condition it s called a Bond conditional or double Bond when it is in another Deed or Instrument it s called a Defeasance but it is commonly subscribed under the Obligation or included within the Body of it or indorsed upon the back of it and if the Condition be performed the Penalty is saved if not the Penalty is forfeit The Condition is always for the benefit of the Obligor 1 Sanders 66. Butler and Wig and shall be construed favourably for his advantage Cro. El. p. 396. Greninghams Case 1 Leon. p. 142. Condition to perform an Award the Arbitrator made Award 24 March that the Defendant should pay to the Plaintiff 10 l. at Michaelmass next the Defendant pleaded the Plaintiffs Release of all Actions and Demands made the 10th of April Per Cur. the Release is no bar to the Plaintiffs Action difference is where Obligation is entred for payment of Mony at a day to come there it s a Debt presently and may be discharged by such Release before the day of payment but not so in case of Annuity Rent and an Action of Debt for non performance of Award to pay Mony at a day to come Cro. Jac. p. 300. Tyman and Bridges The several sorts of Conditions Some are in the Affirmative to do an Act suffer an Act. Some in the Negative Some are to pay Mony and some are to do a collateral Act. Debt on Obligation to stand to the Award of J. S. the Defendant pleads no Award Plaintiff replies and shews the Award but assigns no Breach its ills for the Obligation is not for any Debt but this is guided by the Condition which goes in performance of a collateral thing viz. of an Award Yelv. fol. 152 153. Barret and Fletcher Cro. Jac. 220. Some Conditions are Precedent and executed and some are Subsequent and executory If A. acknowledge by his Bill obligatory that he owes to B. 20 s. and for the payment of this at a day he binds himself in 40 s. by the same Bill in debt upon this Bill for 40 s. he ought to aver that A. had not paid the 20 s. otherwise it s not good 1 Rolls Abr. 414. Danes and Bret. An Award is made by Arbitrators between A. and B. that A. shall pay 10 l. to B. and in consideratione inde B. shall be bound in an Obligation to A. to release all his Right in certain Land c. In this Case B. is to be bound in the Obligation though A. had not paid the 10 l. for it is not a Condition precedent and there is a mutual remedy of each Party if the Award be not performed 1 Rolls Abr. 415. Vivian and Shipping If the Condition of an Obligation be in such manner The Condition of this Obligation is such That if the above bounden A. B. do discharge the Obligee of such Recognizance c. And whereas also the above bounden A. B. hath agreed to free and discharge the said Obligee from two several Obligations c. Now the Condition of this Obligation is such That if the said A. B. do save and keep harmless the Obligee of and from the said two several Obligations then this present Obligation to be void the last words
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.
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
would afterwards make any Grant thereof without the Plaintiffs assent The Defendant quoad the last Covenant in the negative pleads that he had not made any former Grant of the Lease nor had made any Grant after the Obligation without the Plaintiffs assent Et quoad alias omnes Conventiones that he had performed them The Plaintiff demurs 1. Because the Covenant to levy a Fine c. is an Act to be performed by a Stranger and it is an Act to be performed on Record in both which Cases he ought to plead and shew how he performed it and it is not sufficient to plead general performance for Acts of Record ought to be shewn specially and the Answer to them is nul tiel record and no other Issue can be taken 2. Because the Covenant being in the disjunctive he ought to shew specially which of them and not generally 3. He pleads he did not grant without the Plaintiffs assent which is a negative pregnant and so not good and all allowed per Cur. and against the Plaintiff Crook Jac. 559. Lee and Luthiel On Covenant to pay Rent ON Condition performed pleaded the Plaintiff assigns the Breach for Non-payment of Rent and pleads in this manner that in December he demised to the Defendant one Wine-Cellar for one year and if the Defendant would hold the Wine-Cellar for three years paying 40 l. yearly during the said term and alledges Non-payment of the Rent for one Quarter of the first Year Per Cur. the Reservation had reference as well to the first year as to the two years following 1 Brownl 61. Young and Melton Debt on Bond to perform all Covenants Payments and Agreements contained in a pair of Indentures The Defendant pleads the Indenture and performance The Plaintiff assigns the Breach that the Defendant had not paid half a years Rent The Defendant replies the Plaintiff had entred into part of the Premises the day before the day of Payment and so at Issue Exception was taken because the Plaintiff had alledged no demand to be made and the Court held that was implyed by the Issue and that it was not necessary in this Case the Issue arising on a collateral point which admitted the Rent not paid 1 Brownl p. 76. Baker and Pain Hob. p. 8. Crook Eliz. p. 332. Dr. Aidir versus Wood. Debt on an Obligation to perform Covenants of a Lease The Defendant pleaded he had performed The Plaintiff assigns a Breach and the Defendant demurs Upon Demurrer the Case was A Lease was made for one year the Lessee covenants for him and his Assigns to pay the Rent so long as he and they shall have the possession of the thing let The Lessee assigns over his Term the Term expires and for Rent behind by the Assignee after the Expiration of the Term the Lessor brings the Action Per Cur. though here be not an Assignee strictly according to the Rules of Law yet he shall be accounted such an Assignee as is to perform the Covenants made between the Parties Stiles p. 407. Bromfield and Sir John Williamson Debt lies for a Rent reserved on a Lease for years without demand and if the Lessee be bound to pay the Rent at the day he ought to tender it at the day before demand otherwise it is where the Lessee is bound to perform Covenants 1 Rolls Rep. 216. Moses Den's Case If a Man be bound to pay Rent which is reserved upon a Lease made to him he ought to pay it at his peril but if it be to pay it according to the Lease there he said it is not payable but upon the Bond and if the Land be evicted in the interim before the day of Payment the Obligor shall help himself by pleading it upon such an Obligation But if the Condition is to perform Articles The Defendant cannot say there are no such Articles So bound to pay 10 l. per annum Rent reserved upon a Lease of Lands in D. the Defendant shall not plead the Plaintiff had not any Estate in the Lands Quaere de hoc Popham 114. Stroud and Willis The Condition was if the Obligor shall pay the Rent of c. according to the intent of certain Articles c. that then c. The Defendant pleads the Articles did contain that the Obligor demisit c. to the Defendant omnia talia domus c. in Y. in quibus the Obligee had an Estate pur vie per Copy habend pur 21 aâ—s rendant rent Per Cur. no Rent is to be paid for the Lease did never begin But per Popham the Obligor is to pay the Rent though nothing be demised to him for by the Bond he hath made it a Sum in gross Fenner contra More n. 521. Stroud and Willis A Condition to perform Covenants in a Lease The Lessee doth not pay the Rent at the day and the Plaintiff without making any Request sues the Bond upon this matter pleaded in Bar the Plaintiff replied that he was not demanded Demurrer If the Bond be for Rent precisely there the Lessee ought to seek the Lessor and tender on the Land will not excuse him but an Obligation to perform Covenants doth not alter the nature of the Rent 2 Brownl Rep. 176. Manly and Jennings Quaere in Hobart p. 8. Baker and Pain Debt on Bond the Condition to perform Covenants Performance pleaded Non-payment of Rent assigned in the Replication The Defendant rejoyns the Plaintiff entred before the Rent-day Per Cur. it is a departure 1 Keb. 115 178 185. Granger versus Lemborough This point in Hobart p. 8. Baker and Pain 's Case was not stirred there The Condition was to pay quarterly an Annuity so long as the Defendant continues the occupation of the Land Defendant pleads payment till the 24th of June before which day the Plaintiff entred and brought Ejectment in Trin. and had Judgment in Michalmas Term. The Plaintiff demurred because he saith not expulit or amovit nor that the Plaintiff continued in possession as it ought to be being pleaded by way of Suspension but by way of Eviction it were well enough which the Court agreed in case it were payable as a Rent But per Cur. the Entry shall be intended continuing and there shall be no apportionment on a Bond as it might upon a Lease 3 Keb. 453 515. Arnold and Foot The Plaintiff assigns a Breach for Non-payment of Rent but shews no demand at the day The Defendant demurs and adjudged for the Plaintiff For when the Defendant pleads performance of all the Payments Covenants and Agreements it shall be intended he had really performed them and so had paid all the Rents and when the Plaintiff replies he had not paid such a Rerit he need not alledge a demand for the Defendant may not say it was not demanded for that would be a departure yet the Obligation being general for performance of Covenants doth not alter the nature of the Rent but that it ought to be demanded Crook
taken in Execution H. the other Bail gave him Security for the Mony and in consideration thereof the Plaintiff promised H. that he might take out Execution against the other Defendant and that he would not release him without the consent of H. whereupon H. procured him to be taken in Execution and he then moved the Plaintiff to discharge him who acquainted him with the promise made to H. at supra thereupon the Defendant made him this Bond and conditioned prout so he discharged him and H. brought an Action upon the Promise and recovered 150 l. damage and so damnificat the Defendant demurred Judgment pro Quer. this is a Breach for by the word damages is not only intended damages which arise directly by the Release but to any other collateral Act dehors as is this promise Hob. p. 269. Wilden and Wilkinson 1 Rolls Abr. 431. id Case vid. 1 Rolls Abr. 422. id Case Condition is to perform an Award which was That the Obligee staret acquietatus de qualibet materia contained in a Bill in Chancery which the Obligor had depending against him and that the said Suit shall cease and after the Obligor exhibits a new Bill in Chancery against the Obligee for the same matter and in the end of the Bill prays Process but never takes out Process thereon against him this is not any such molestation as shall be a forfeiture of the Condition for he is not at any damage by this P. 12 Jac. 1 Rolls Abr. 432. Freeman and Sheâ—n A. and B. are bound in an Obligation to perform certain Covenants contained in an Indenture and one is to pay Mony and C. covenants with A. and B. to save them harmless of all things contained in the same Indenture and after the Mony is not paid according to the Indenture by which the Obligation is forfeited yet C. is not bound to save them harmless of the Obligation for this is a collateral thing to the Indenture M. 5 Jac. 1 Rolls Abr. 432. Scot and Pope versus Griffin A Condition recites That the Plaintiff at the request of the Testator was bound in 2000 l. to the Commissioners of the Excise and if the Testator acquit and discharge or sufficiently save harmless from all Suits Troubles c. concerning the said Bond then c. the Defendant saith there were no Suits the Plaintiff replies there was a So. Fac. out of the Exchequer and he was forced to retain an Attorny and give him 3 s. 4 d. the Defendant demurs because no notice of the Suit is given to the Defendant per Cur. there needs no notice 2 Keb. 529 609 642. King and Atkins Cro. El. 613. Fox and Wright The Defendant is Security to the Plaintiff for payment of Mony as separate Maintenance to Williamsons Wife the Breach assigned is that Williamson brought an Action sur Case against the Plaintiff on his promise to pay so much if the Defendant now who was then Plaintiff would remit the rest It s a Cheat and the Defendant iâ— not bound to secure the Plaintiff 2 Keble p. 106. Campian versus Skipwith Counter-bond writ in a Book and good Cro. El. p. 613. Fox and Wright If the Condition be to save harmless from such a thing this doth not extend to Actions in which he might have lawful defence without the Obligor 2 H. 4.9 A Condition to save harmless from J. S. if J. S. after saith to him that if he will go to his House he will beat him by which menace he dares not go to his House about his Business the Obligation is forfeited 18 Ed. 4.28 To plead he had saved the Plaintiff harmless and not to shew how is ill Stiles p. 219. Shertliff vers Timberly Allen 72. Ellis and Box. If it be that from time to time he hath saved him harmless it s well enough Stiles p. 353. M. 1652. Bond and Martin But in Condition to save harmless from Escapes the Defendant pleads he had saved harmless but saith not how and the Plaintiff demurs generally Per Cur. its ill on special demurrer but aided by general demurrer 2 Keble 629. Henshaw and Warren 3 Keble 198. Fletcher and White To discharge and save harmless Qu. if any difference on Mansers Case 1 Keble 379. Morgan and Thomas In such Cases the Plaintiff ought to plead non damnificat for that he hath saved him harmless doth imply he was damnified Ibid. A Condition was to save the Obligee harmless of a Nomine poenae against M. To plead he had saved him harmless and not to shew how is not good had he pleaded non damnificatus in the negative it had been good Winch. p. 9. A Condition to keep a Parish harmless from a Bâ—stard Child the Defendant pleads he had saved the Parish harmless but shews not how the Plaintiff replied That the Parish was warned before the Justices of the Peace at the Sessions and was there ordered by Record to pay so much for the keeping of the Child the Defendant pleads nul tiel Record the Plaintiff demure 1. The Plea of nul tiel Record is a good Plea because an Order of Sessions of Peace is a Record 2. Judgment pro Quer. because the Defendants Bar is ill in that he hath pleaded in the affirmative and shews not how Non damnificatus had been good and it is not helped by demurrer it being matter of substance March 121. n. 200. Anonymus A Condition to save harmless from all Obligations which he had entred into for him the Defendant pleads quod exoneravit indempâ—em conservavit from all the Obligations and shewn not from what and yet good because there might be many and so to avoid perplexity of pleading and because he pleaded not quâ—modo exoneravit but generally the Plea was ill Cro. El. p. 916. Braban and Bacon A Condition to save the Parish harmless of a Bastard Child vide the Form the Defendant pleads non damnificatus the Plaintiff replies That the Defendant nor any other for the space of a month provided for the Child wherefore the Parish paid 40 s. for its Maintenance the Defendant rejoins he offered to maintain the Child at his own Charge and the Parish refused to permit him Et hoc paratus c. this rejoinder is ill because it is a departure 〈◊〉 he ought to have pleaded this first in his Plea 2 Sander … 〈◊〉 Siderfin p. 444. 2 Keble 219. Mod. Rep. 45. Richards and Hodges Counter-Bonds Sureties IF the Condition be to discharge another against J. S. of an Obligation wherein he is bound he ought to discharge him of the Obligation by Release or otherwise and it is not sufficient to save him harmless 22 Ed. 4.40 b. The Defendant pleads non damnificatus the Plaintiff replies the Mony was not paid at the daâ— per quod the Plaintiff became onâ—rabilis and d … st not go about his Affairs the Defendant rejoins that the Mony was tendered and refused absque hoc that the Plaintiff was
221 225. Blith and Hill Declaration IN the Declaration is omitted ad eandem solation faciend obligo me haeredes meos it was amended Cro. Jac. 147. Forger and Sales Alit if one declare in debet detinet where it ought to be in the detinet only ibid. Winch p. 20. If I declare on Obligation against a collateral Heir the Declaration must be special as Debt against the Brother and Heir the Defendant pleads riens per descent from his said Brother but he had Assets by descent from the Son of his Brother but he must be charged by special Declaration and so Judgment pro Def. Cro. Car. 151. Hill 4 Car. 1. Jenkes Case Judgment and Execution DET port en Lichfield against the Heir he pleads riens c. the Plaintiff replies Assets but shews not in what place whether within the Jurisdiction Judgment was erroneous yet per Dodderidge If the Jury find the Assets to be deins Jurisdiction its sufficient though not so alledged Q. if Costs and Damages shall be given to the Plaintiff on such Judgment 2 Rolls Rep. p. 48. Brown and Carrington In all Courts he must shew the place of Assets Q. Cro. Jac. 502. id Case Co. Rep. 6.46 Dowdales Case Det vers l'heir pendant le Action another Action was brought against the same Heir upon another Obligation of the Ancestor Judgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Judgment first he for whom the first Judgment was given shall be first satisfied but if the Heir after the first Action brought had aliened and the Plaintiff in the second Action commenced his Suit after such Alienation had obtained Judgment before the first Plaintiff in that case the Plaintiff in the first 〈◊〉 on should be satisfied and he in the second Action not at all Mod. Rep. 253. Anonymus In Det vers l'heir by Bill after riens per dâ—sm pleaded tempore exhibitionis Bills the Defendant excepted at the Trial because the Bill was not shewed and the Plaintiff was non-suit Per Câ— the Bill is confest and need not be shewed 1 Kâ—b p. 793. Rogers and Rogers The Heir shall put in Bail on a Writ of Error per Stat. 16 Car. 2. c. 2 Keb. 320. Coâ—ber and Walton Det vers tres Co-heirs two confess Assets the other pleads to Issue and is non-suited it s a Non-suit against them all though the two have confest and so the Plaintiff lost his Debt there being â—n Alienation before a new Original Siderfin p. 378 Blacks Case He ought to confess the Assets that truly descend to him otherwise his own Land shall be charged with the Debt Plow 440. Pepyes Case Dyer â— Henninghams Case Dyer 344. Qu. if upon â—il dicit or non sum informatus Judgment shall be general but in Sc. fac sur Recognizance of the Ancestor against the Heir he pleads riens per descent which is false here Judgment shall be special for he is not charged as Heir but as Terre-Tenant at the end of Popham 1 Car. B. R. 153. Bowyer and Ricots After Imparlance one is estopt to say that he is not Heir being charged in Debt as Son and Heir so to say he is a Bastard 35 H. 6. 36 37. The Heir pleads riens per descent besides one Acre if the Plaintiff please he may have Execution of that one Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land only and not of his Person Where the Heir pleads he hath nothing by descent generally and it s found against him the Land and all other Land that he hath and his Body are â—iable to judgment by Ca. sa Fi. fat or Elegit â—1 Brownl Rep. 254. Qu. what difference between a false Plea and nil dicit 2 Keb. 343. Riens per descent after the death of the Ancestor Prist Such Issue shall be good in a Formedon for if he have Assets at any time he shall be charged and barred of his Formedon intirely in this Case it must be riens jour de brevâ— purchase nec unâ—pâ—is 10 H. 7.8 b. In Det vers 4 Co-heirs on several Issues on riens per descent Assets was found as to one only Judgment given against her that had Assets quod reâ—uperes debitum damâ— sua generally 〈◊〉 de hunis propriis 2 Keb. p. 588. Cary and Brickmâ—r versus Lock On nil dicit the Heirs own Lands and Goods shall be charged i. e. a general Judgment The Heir pleads Lands set out for Portions besides a Reversion of which he hath nothing replies a third part descended Judgment special 1 Keb. 156. Cudmoâ— and Lâ—wis Judgment against the Heir upon nil dicit shall be general and shall extend to his own Lands as well as to those which specially descend Poph. 154. Bowyers Case Mâ—or n. 657. Barâ—r and Borâ—e Capias lies too against the Heir in Case of a false Plea 2 Leon. p. 11. Sir John Lyons Case The Defendant confesseth he hath a seck Reversion beyond which he had no Assets the Plaintiff said he had ouster and were at Issue the Plaintiff comes and prays leave to wave this Issue and to have Judgment of the Reversion quod fuit concessum quando accideret 1 Rolls Rep. 57. Anonymus The Jury find the Defendant had divers Lands in Fee by descent and shews not what yet Judgment good for upon his false Plea Judgment shall be given generally against him if he have any Assets and so the quantity of the Assets is not material but otherwise in Case of Executors for there they must find the value of the Assets for he must there recover according to the Assets found 1 Rolls Rep. 234. Evet and Sucliff M. 13 Jac. 1. B.R. The Judgment and Execution shall be general unless the Heir acknowledgeth the Action and shews that he hath so much by descent Cro. M. 41 and 42 El. 692. Barker and Bourne If the Heir pleads riens per descent and it be a faux Plea it shall be a general Judgment against him and no Writ of Enquiry need to be to enquire what Lands he hath and need have no special Judgment for the Judgment ought to be that the Defendants Body and Goods shall be liable and half his Lands Stiles p. 287 288. Allery and Holden If the Jury find he hath Lands by descent and name them and Judgment accordingly its erroneous Stiles p. 327. Subgrave and Bosvil Cro. Jac. p. 236. Molineux Case Armourer versus Willis 2 Keb. 642 643 667 719. What Bail the Heir shall put in 3 Keb. 803. Lawrence and Blith Bonds of Arbitrament I Shall not here run into the Learning of Awards which is a curious and large Title in our Law and of which Mr. March hath composed a very Methodical Treatise but take notice of some few select Cases which respect the Nature of such
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
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
Judgment of the Bill for that the Plaintiff in the Obligation was named J. Thorny de F. in Com. N. Armig ' and in the Declaration was named J. Thorny Armig. and no more Respond ouster awarded Cro. Eliz. 312. Thornough and Disney After Imparlance one cannot plead in Abatement of the Writ Stiles 187. Weston and Plowden Per Stat. 6 R. 2. c. 2. it 's provided that the Original shall not be laid in one County and the Declaration upon a Bond made in another County if so the Writ shall abete But it s no good Plea to say that the Bond was made in another County than where it s alledg'd in the Declaration Allen p. 17. Shalmer and Slingsby If the Defendant pleads a Plea in Abatement as in Debt upon Bond that another was joyntly bound with him who is in full life not named and concludes in Bar Judgment shall be final against him Siderfin p. 189. Burden and Ferrars Debt on Obligation against the Defendant Knight and Baronet The Defendant pleads he never was a Knight in Abatement No Amendment granted but in Nil Cap. per Billam awarded because tho' the Defendant after Bail put in by himself generally he cannot plead in Abatement yet when the Bai is Special or put in by another he may plead in by Abatement Judgment pro Def. 2 Keb. 824. Sir William Hicks's Case Pleads that the Plaintiff puis darrein continuance was made a Baronet Cro. Car. p. 104. Simon Bennet A Plea may be a good Plea in Abatement though it contain Matter that goes in Bar Med. Rep. 214. In Debt sur Oblig ' against J. S. de S. it 's a good Plea to say that there are two Vills S. within the County and none without Addition 14 H. 6.8 a. In Debt sur Bond. The Defendant pleads that after the Writ purchased the Plaintiff had received parcel and shews the Acquittance the Writ shall abate in the whole and notwithstanding it 's a good Plea in bar as to this part Doctrina placitandi p. 5. Vide pluis in titulo Payment infra Payment of parcel pendant le Suite Two bring Debt on Obligation the Defendant pleads the Obligation was made to them and to one B. and that they three had an Action of Debt depending against him and demands Judgment si actio Demur And because the Obligation was made to two upon which they counted it cannot be intended an Obligation made to three and if it be a Plea it 's in Abatement of the Writ and not in Bar. Judgment pro Querente Cro. Eliz. Isham's Case Debt against J. S. de D. Yeoman It 's no Plea to say there are two J. S. of D. Yeom Sen. and Jun. and none without addition For the Action accords with the Obligation which is J. S. de D. Yeoman without distinction 9 H. 7.21 Pleas after Imparlance IN Debt on an Obligation the Defendant imparles till next Term after he may plead that the Plaintiff is Outlawed For the King shall have the Debt on Bond. Aliter in Trespass or Debt or simple Contract 16 Ed. 4.4 a. per Bryan Debt against J. S. de D. The Defendant imparles he may after say by Attorny Upper D. and Nether D. and none without addition 18 Ed. 4.9 21 Ed. 4.1 b. contr Variance between the Obligation and the Writ may be pleaded after Imparlance in another Term for the Bond always remains in Court but after Imparlance Variance between the Testament and Letters of Administration shall not be pleaded for the Testament shall be but once shewed in Court 36 H. 6. 32 33. 38 H. 6.2 19 H. 6.7 The Defendant Imparles till another Term and then he pleads Tender of the Mony at the day and place and that no person was there to receive it and that he is now ready and saith not Touts temps prist yet it 's a good Plea For he had excused himself of the Forfeiture by this Plea and no Estoppel shall be by the Imparlance to plead that he is now ready Doct. placitand 388 389. In Debt on Bond the Defendant imparles Specially scil salvis omnibus omnimodis advantagiis and after he pleads the priviledge of the Exchequer that he was Surveyor there Per Cur. he cannot plead so Siderfin p. 318. Trussel and Maddin 2 Keb. 103. A Plea in Abatement ought to be pleaded before Imparlance As the Defendant to Debt on Bond appears and imparles and after Imparlance pleads that he is Earl of Nova Albion in Ireland and ought to be impleaded by that Name Stiles p. 187. Weston and Plowden After Imparlance the Defendant pleaded in Abatement that one Vincent not named sealed c. It 's no Plea after Imparlance and a Respond ' uâ—ster awarded 2 Keb. 795. Putt and Nosworthy Debt for 300 l. The Defendant after a general Imparlance demands Oyer and pleads Specially it was but for 30 l. Non allocatur after general Imparlance then the Defendant pleaded Non est factum which was the proper Plea in the Case 1 Brownl p. 70. It was Ruled that after Imparlance in Debt upon Bond the Defendant shall be received to plead that he was always ready to pay tho' 13 Eliz. 306. Dyer seems contrary and was so urged Replicatio Querentis That the Defendant ought not to be admitted to plead a Variance between the Declaration and the Bond in abatement after Imparlance general Modus Intrandi p. 200. Obligations Pleadings Acceptance Coneord COndition to deliver twenty Quarters of Wheat The Defendant pleads that pendente billa the Plaintiff had accepted fifteen Quarter and demands Judgment of the Bill No Plea for it 's Collateral and not parcel of the Sum contained in the Obligation and if it be a Plea it is in bar and not in abatement Cro. M. 33 54 El. Stone versus Radish Issue is taken that he had not accepted now though it s no Plea and so no Issue yet it s helped by the Statute of Jeofails and the Plaintiff had Judgment Cro. El. p. 260. M. 33 34 El. Andrews and Kinck Debt pro. 7 l. the Defendant pleads solvit ad diem The Jury find 50 s. parcel of it paid and that the Defendant then delivered to the Plaintiff certain Hats to the value of the residue which he accepted It was Adjudged against the Defendant for this is no payment he might have pleaded it specially Cro. M. 35 36 El. Tiblethorp and Hunt Debt fur single Bill The Defendant pleads he enfeoffed the Plaintiff of Lands in satisfaction of that Debt The Plaintiff demurs Per Cur. it 's a naughty Plea to a single Bill otherwise had it been upon a Bond with a Condition to pay Mony 1 Brownl 70. Glyver and Lease Debt sur Bond The Defendant pleads another Bond given to the Plaintiff in satisfaction of that Bond and acceptance at the day of payment Ill Plea for one chose in Action cannot be given in satisfaction of another unless it were payable at a day before the
Debt on Obligation in which Outlawry goes in Bar he failing of the Record the Plaintiff had Judgment Cro. Eliz. 203. Smith and Bernard The Defendant pleads Outlawry in the Plaintiff and shews it in certain the Plaintiff pleads nul tiel Record in the mean time the Plaintiff reverseth the Outlawry The Defendant shall not be condemned but a Respondeas ouster Failer of the Record not peremptory the Defendants Plea being true at that time Yelv. p. 36. Green and Gascoigne 1 Browel Rep. p. 83. The Defendant pleads Outlawry of the Plaintiff and shewed the Outlawry in certain by the name of J. S. of D. in the County of c. The Plaintiff shewed that at the time of the Suit begun against him the said J. S. upon which the Outlawry was pronounced was dwelling at S. absq ' hoc that he was dwelling at D. Per Anderson it s a good Replication to avoid the Outlawry without a Writ of Error for he cannot be intended the same Person 1 Leon. p. 87. Anonimus In Debt on Bond The Defendant Imparles till next Term after he may plead that the Plaintiff is Outlawed for the King shall have the Debt on Bond aliter in Trespass or Debt on simple Contract 16 Ed. 4 4. a. per Brian The Defendant pleads Attainder of himself after a Debt due to the Plaintiff it s no Plea More n. 982. Hall and Trussel Bro. Eliz. 516 Banister and Trussel 2 Anderson 38 45. Mesme Case The Defendant pleads at the time of the Obligation made he was non sanae memoriae its non Plea Cro. Eliz. p. 398. Stroud and Marshal The Defendant pleaded that the Plaintiff is a recusant Convict in Bar Litt. Rep. 235. Rooksby versus Bridge Debt upon Obligation in Norwich The Defendant confest it to be his Deed but according to the Custom there prayed quod inquiratur de â—debito and the Inquest was awarded and returned and found to a certain sum for which sum the Plaintiff had Judgment to Recover this was assigned for Error But because it was done according to the Custom it was not Reversible Cro. Eliz. 894. Grice's Case In Debt on Obligation against the Lord Monteagle The Defendant pleads his Peerage and prays to be Discharged Per Cur. Plead in chief this is but a Dilatory Plea Stiles p. 257. Lord Monteagles Case Arbitrament pleaded in Bar. Vid. Supra titulo Rules of Pleading Foreign Plea THe Condition was that in case the Ship were Cast-away in the Voyage and did not return it should be void The Action was laid in London and the Defendant pleaded she was Cast-away at Falmouth It s ill had the Plea been local it ought to be sworn The Action being Transitory the Defendant shall not by any thing Transitory alter the Venue but ought to alledge the Ship was Cast-away at St. Maria de Arcubus in Warda de Cheap in the same County the Action is brought 1 Keb. 750. Collins's Case The Declaration is that the Obligation was at Barnstable and the Plea is that it was at Chichly and payment alledged there which is a Foreign Plea The Plea was not sworn nor demurred to but received and Day given to swear it and for not swearing it accordingly Judgment is given by default whereas it ought to have been by Nihil dicit for want of a Plea And per Rolls If one plead an Insufficient Plea although it be a Foreign Plea it s not necessary it should be sworn Stiles p. 200. Wyatt and Harbye In a Corporation Court if the Defendant plead a Foreign Plea which is Collateral as in Debt on Bond he pleads a Release made in a place out of the Jurisdiction it need not be received without Oath But if in Covenant or Debt for Mony to be paid in another place he pleads payment accordingly or the Covenants performed in a place limited which is out of the Jurisdiction it ought to be received without Oath Lit. p. 236 Corporation Court Condition for performance of Covenants Breach assigned for Non-payment of Rent The Defendant pleads performance till such a day and that the Plaintiff entred in Surry where the Lands are leased But the Action being in B. R. the Court made him swear his plea yet because the Council offered to try it by Nil debet which is no Plea but by Consent which the Plaintiff refused the Court allowed the Plea 2 Keb. p. 386. Jones and Comport Debt on Bond in Bristol Recovery pleaded in the Kings Bench the Plea must be sworn and though it be sworn if they have cause to presume it not true they may refuse it Siderfin in Knights and Pitt's Case fo 330. Foreign Attachment pleaded THe Defendant pleads Foreign Attachment in London to Debt on Bond The Plaintiff demurs 1. Because the Defendant had Attached Mony in his own hands by way of Retainer 2. The Custom is in London that the Recoveror ought to find Sureties that if the Defendant be discharged within a year and a day then to pay the Mony and it did not appear by the Record that he found Sureties This was held an incurable Fault 1 Brownl Rep. p. 60. Hope and Holman L. brought Debt against H. on Obligation H. pleads how one J. J. affirmed a plaint of Debt in London against the said L. and by the Custom there Attached that Debt now demanded in the Hands of the said H. and pleaded the Recovery and Judgment there The Plaintiff replies that before Attachment J. J. brought Debt in the King's Bench against the said L. for the same Debt whereupon he made an Attachment whilst the Suit was depending Et hoc c. H. demurs Per Cur. notwithstanding this that J. J. had commenc'd a Suit in B. R. for his Debt and the Suit there depending yet the Debt in the Hands of H. may be Attached For tho one cannot Attach a Debt in London for that a Suit is here depending in the King-Bench as Cro. Eliz. 691. Humfrey and Barnes yet one who hath conceived an Action here may affirm a plaint in London for the same Debt and may make Attachment of the parties Debt according to the Custom For there the Debt in question is not touched by the Attachment and the Plaintiff might now have pleaded this Attachment in Bar for so much of his Debt in the Action brought in the King's Bench Cro. Eliz. 593 712. Leuknor and Huntly The Defendant pleads that the Plaintiff was Indebted to him concessit solvere and pleads a Foreign Attachment in London The Plaintiff protestando quod non habetur tale Record ' pro placito dicit that he pro diversis denariorum summis per ipsum prafat R. prius debit ' non concessit solvere the said Sum modo forma prout Adjudg'd a good Plea in Bar for the Debt is well Travelable Cro. Eliz. 830. Coke and Brainforth The Defendant pleads Tender and so to Issue and after the Defendant pleads that after the Darrein Continuance Foreign Attachment Per Cur
' its ill and per Curiam the Action for the Debt depending in this Court cannot be Attached 3 Leon. 210. After Imparlance Foreign Attachment not to be pleaded 3 Leon. 322. Babington's Case The Defendant pleads to Debt on Bond of 80 l. that the Plaintiff pendant the Bill brought against him a Plaint in London and there by Custom had attached 40 l. of a Debt due to the Defendant in the hands of J. S. in satisfaction of 40 l. due on this Bond and demanded Judgment of the Bill Per Cur. it s a Plea in Bar and not in Abatement for the Plaintiff for this part is to be barred for ever and this receipt of parcel is lawful and a Recovery in Law Aliter of a bare Acceptance Cro. Eliz. p. 342. May and Middleton The Debt follows the person and it s therefore called a Foreign Attachment because let the Debt rise where it will its attachable if the Debtor cometh or the Mony be brought into London 2 Keb. 320. Mollam and Hern. W. was bound to K. in a Recognizance of 400 l. and K. was bound to W. in a Bond of 100 l. W. according to the Custom of London affirmed a Plaint of Debt in the Guild-Hall against K. upon the said Bond of 100 l. and attached the Debt due by himself to W. in his own hands and now K. sued Execution against W. upon the Recognizance and W. brought Audita Querela and it was allowed 1 Leon. 297. Wallpool and King An Obligation for an 100 l. on Condition to pay 50 l. before the 25th of March. The Defendant pleads a Foreign Attachment of the 50 l. the 17th of February in the hands of Watts and a Retorn that it was attach'd but there was no Scire facias till April after Before the day of payment a Creditor of the Plaintiffs scilicet c. attaches the 50 l. and gives Security in the Court according to the Custom to pay the Debt if it be disproved within the year and day The Plaintiff demurs as being no sufficient Attachment being before the Mony was due The custom of London is to attach a Debt before its due contrary to 3 Cro. 184 yet it may not be levied till after the time of payment of the Obligation there is only a seizure and a Cesset Executio till the Mony be due Also the party against whom the Execution is sued is not to give Security but to pay the Mony but the party that sueth the Execution is to give it to return the Mony if the Debt be disproved within a year and a day Also the Judgment had there is pleadable Also per Cur ' its a good Bar for the whole but if it were for part as 20 l. this Record of the Attachment shall be pleaded in Bar for part i. e. pro tanto Siderfus p. 327. 2 Keb. p. 202. Robins and Standard Vide Co. Intr. 142. Ra. Entr. 158. Pleading to the Jurisdiction IN Debt on an Obligation in the Palace-Court averring neither of the parties were of the King's Houshold After Judgment on Non est factum the Defendant assigns for Error that the Plaintiff was the King's Brazier To which the Plaintiff demurred because the Defendant by the Record is estopt to say that but should have taken Issue on the Averment Which the Court agreed as on alledging a Cause infra that was out of the Jurisdiction this must be pleaded and cannot be assigned for Error 3 Keb. 372. Newnan and Rivet Condition to deliver a certain quantity of Tin at a certain place within the Jurisdiction of the Stannary And the Defendant pleaded to the Jurisdiction of the Court that it was a Tin Cause The Charters are to the Cause and shall not be restrained to persons though the Defendant be not alledged in the Plea to be a Tinner It was allowed 1 Rol. Rep. Pinson and Smale Obligations Conditions Recovery pleaded in Bar. THree are bound pro toto in solido the Obligee had Judgment to recover against one of them and afterwards sues an Action against the others this Recovery is not a Bar because no satisfaction of the Duty but Execution is a good Plea 4 H. 7. 8. b. Co. Rep. 6.46 a. Higgin's Case As long as Judgment remains in force a man shall not have an Action on the same Bond for the Debt is changed into a higher nature of Record Cro. El. p. 817. Preston's Case An Action of Debt brought by the Executor on Bond made to the Testator The Defendant pleads that the Testator in vita sua in Curia de Banco hic recuperavit debitum praedict ' cum 40 s. pro misis without alledging the Execution quod quidem Recordum recuperationis was removed per breve d'Error ibid. remanet minimè reversat ' The Plea was good 6 Rep. 44. Higgin's Case Aliter if Recovery be by Debt sur Bond in the Courts per Justices Ibid. And though the Recovery be erroneous yet so long as it remains in force it ought to be executed and when it is Reversed the Obligee is restored unto his new Action upon the said Obligation Ibid. If a man bring Debt upon Bond and he is barred by Judgment so long as the Judgment stands in force he cannot have a new Action So when he hath Judgment in an Action upon the same Bond so long as the Judgment remains in force he shall not have a new Action Ibid. The Defendant pleads the Plaintiff brought another Action upon the same Bond in London to which the Defendant there pleads Non est factum and so found there And upon this Verdict the Entry was That the Defendant should recover Damages against the Plaintiff and the Defendant be without Day but no Judgment that the Plaintiff Nil capiat per Billam And so per Cur ' no Judgment to bar the Plaintiff 1 Brownl p. 81. Levet and Hall Vid. 7 Cro. Jac. p. 284. Debt sur Bond of 600 l. vers K. in Bristol The Defendant pleads a Recovery in B. R. upon the same Bond against the same Defendant per the Plaintiff Et hoc paratus est verificare The Plaintiff Replies Nul tiel Record unde petit Judicium debitum suum praedict ' sibi adjudicari The Defendant Rejoyns Quod habetur tale Record ' prout per Record ' in B. R. apparet Per Cur ' he that will joyn Issue sur Record ought to say Et hoc paratus est verificare prout per Recordum illud vel verificare prout Curia hic consideravit and so are all the Presidents yet in Error Judgment was affirmed for the Defendant in the Writ of Error and that the first Judgment should be affirmed notwithstanding it was prout per Record ' illius plenius liquet Siderfin p. 329. Knight and Pitt Vide 2 Keb. 250 278. Two were joyntly and severally bound In Debt brought the Defendant pleads the Plaintiff recovered against the other the same Debt and had Execution It s a good
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
De vicineto Civitatis Lincoln ' the Trial is good and it s a Rule where it doth not appear upon the Record that there is a more proper place of Trial than where the Trial was that there the Trial is good but here is not a more proper place and it could not be tryed in the Body of the County because the payment was to be in the City March Rep. 124 Thorndike and Turpington Debt upon an Obligation in London against J. S. of Wakefield in Com' praedicto Conditioned for the payment of 100 l. at Wakefield The Defendant pleads payment at Wakefield aforesaid in Com' Ebor ' The Plaintiff saith Non solvit and so at Issue The Trial was De vicineto de Wakefield in Com' Eborum It was Error because he is named of Wakefield in Com' prad ' which shall be intended London and the payment at Wakefield aforesaid shall be so intended and the words added in Com' Ebor ' are idle Cro. Eliz. 867 Sackvill and Roades Venue THe Margent of the Count is Nott ' and the Count it self contains that the Obligation was made at the Town of Nott ' which is a County it self on Non est factum Venue was of the Town of Nott ' and tryed by a Jury of the County Per Cur ' in arrest of Judgment though the Town of N. be a County of it self yet it may be some part of the Town may be within the County and for that possibility they would not arrest Judgment 2 Brownl p. 165. Browning and Shelly The Plaintiff declared on a Bond made in London The Defendant pleads an Usurious Contract in Staffordshire and the Bond made for the same Contract The Plaintiff replied the Bond was made bond side non pro usura The Issue was tryed in the County of Staff And per Cur ' it was well tryed 1 Leon. pag. 148. Case 206. Kinnersley and Smart The Plaintiff Leased to the Defendant certain Lands in Cambridgshire rendring Rent and the Defendant became bound in a Bond for the payment of the Rent Debt on the Bond is brought in the County of Northampton to which the Defendant pleads payment of the Rent without shewing the place of payment It was tryed per Nisi prius at Northampton and well 2 Leon. 146. Coney and Beveridge's Case Debt brought in London which on Oyer was to perform Covenants which were to enjoy a Walk in a Forest On pleading the Venue was of the Walk though the Venue be ill yet it s aided after Verdict per Stat. 16 â— 17 Car. 2. cap. 8 2 Keb. 212 216. Sterk and Bates Condition was that if he appeared such a day it may be tryed per Pais Cro. Eliz. 131. Hoc and Marshall Debt on a Bond In the Imparlance-Roll the Bond was alledged to be made at Newcastle and in the Issue-Roll it was alledged to be made at York and tryed Error was brought The Court would not grant that the Imparlance-Roll might be amended 1 Brownl Rep. 66. Fetherston and Tapsale A Bill Obligatory to be paid within ten days after J. L. went by five days undivided from London to York and returned from York to London The Defendant pleads that J. L. did not go five days immediately from London to York and return from York to London Issue and Venue was awarded from the Parish of Bow in Warda de Cheape where the Bill was alledged to be made and found pro Quer. Judgment was arrested because it is not alledged to what Parish in London he Returned but to London generally that so a Venue might have been 2. As this case is the Venue must be from London so de corpore Comitatus and not of the Parish where the Bill was made Cro. Jac. 137 150. Normanvile and Pope Debt on Bond Conditioned to pay 20 l. and saith not where The Defendant pleads Solvit ad diem and Verdict and Judgment The Court denied to affirm the Judgment because here is no Venue and so no Trial. This was in Durham on Error brought 2 Keb. 620. Norcliffe and Anderson Condition to pay a Moiety of Charges c. The Defendant pleads Payment and saith not where The Plaintiff demurs because no Venue can be Per Hales no place is here necessary the Pleading being in the Affirmative 2 Keb. 762. Cantor and Hurtnell Condition to be paid at his Mansion house c. this may be paid at any place 3 Bulstr 244. In Debt on Bond Trial in Issue shall not be stayed on infra aetatem but this must be pleaded and the party cannot be aided on Non est factum but a Feme Covert may 3 Keb. p. 228. Cole and Delawne Debt on Bond in Norwich and Cognovit Actionem by custom a Writ of Enquiry was awarded de vero debito and good 3 Keb. 212. Brightman and Parker 251. Rogerson and Jacobson A Man recovers Debt on Bond If A man will bring Action of Debt for the Sum recovered he must lay it in the County of Middlesex and where the Judgment was given which hath made Novationem contractus Hob. p. 196. in Hall and Winkfield's Case Joyning Issue on payment COndition to pay tantas denarionum summas as he should receive by such a day The Defendant pleads payment generally The Plaintiff replies he did not pay 50 l. such a day hoc paretuâ— c. and good for the Defendant must rejoyn and conclude Et hoc petit c. 2 Keb. 230. Tr. 19 Car 2. Hansal and Nurse Condition to pay a lesser sum the 24 of June in such a year The Defendant pleads he paid this praedicto 24 die Junii quod ei solvisse debuit secundum formam effectum Conditionis The Plaintiff replies quod non solvit praedictam summam c. pradicto 14 die Augusti quod ei solvisse debuisset hoc petit c. The Jury find the Defendant non solvit praedicto 14 die Junii And the Plaintiff had Judgment Error assigned because no Issue joyned The Plaintiff ought to have replied quod non solvit praedicto 14 die Junii and not 14 die Augusti Per Cur. its good Had the Plaintiff replied quod non solvit praedicto 14 and omitted August this had been good then the addition of August is idle and surplusage 2 Rols Rep. 135. Halse and Bonithan Condition to pay 10 l. 10 s. The Defendant pleads payment of 10 l. Secundum formam c. upon which Issue and Verdict pro Querente and yet Repleader Awarded Hob. p. 113. Kent and Hall On Colateral Point COndition that the Obligor shall find three men to go with him to Y. and he â—urmiseth they went with the Obligee if the Obligee saith they did not go with him this is no Issue for if one of them fail the Obligation is forfeited 4 H. 7.8 per Vâ—visor Condition If M. W. the Plaintiff doth not depart out of the Service of the Defendant without License of the Defendant nor Marry her self but with his consent then if
Rowel and Roo The Court seemed in doubt tho' the Secondary said it was in mia ' generally Cro. Jac. 420. Ashmore and Ripley Precedents are both ways 2 Keb. 704. Mortlock and Charlton Judgment in Debt where the demand is in the debet detinet is to recover Debt Damages and Costs of Suit and the Defendant in mia ' but if the Defendant denies his Deed then a Capias pro Fine issues out 1 Brownl p. 50. The Earl of L. pleaded non est facium and found against him The Judgment was ideo Capiatur and good tho' he be a Peer of the Realm for a Fine is due to the King and none shall have Priviledge against him Cro. Eliz. 503. Earl of Lincoln against Flower Condition If Henry and Robert H. pay c. The Defendant Robert pleads solvit ad diem and found against him and Judgment pro Querente quod recuperet debitum damna against the said Robert praed ' Henricus in misericordia where it should have been Robert for Henry was no party to the Record this was ore tenus assigned for Error and it being a misprision of the Clerk it was amended Cro. Car. 594. Pelham and Hemming The Defendant confest the Action and it was entred non potest dedicere actionem quis non solvet Per Cur. he having confest the Action the words quin non solvet are not material but surplusage and the Plaintiff had Judgment Cro. Eliz. p. 144. Long and Woodliff The Defendant pleads per minas the Plaintiff saith he did it spontanea voluntate and Traverseth the minas and at the Nisiprius the Defendant cognovit actionem non potest didicere but that he made it at large which is to a Plea per duress But per Cur. in regard it is entred quod cognovit actionem it is not necessary for him to acknowledge the point in Issue and that which comes after the the cognovit actionem is but surplusage Cro. Eliz. p. 840. Brown and Holland Debt against Baron and Feme on Obligation on made to the Wife dum sola On non est factum and found pro Querente Judgment shall be Capiantur for both Cro. Eliz. p. 381. Perey's Case The Plaintiff declares upon a Bill quod reddat ti imum dolium ferri deliberand within such a time and on non est factum pro Querente Judgment was quod Querens recuperet dolium ferri vel valorem ad damna c. and upon this a Writ Issues ad distringend ' the Defendant quod reddat praedictum dolium ferri vel valorem ejusdem si non reddat dolium tunc per Sacramentum inquiratur quantum idem dolium valet And before any return of this Writ of enquiry the Plaintiff takes out a Capias upon the Judgment Its Error 1. because the the Judgment is in the Disjunctive it ought to be quod recuperet dolium ferri si non valorem inde as in detinue for the Plaintiff is not to have Election which he will have 2. The Judgment is not perfect before the Writ returned and so nothing certain to ground a Capias or other Execution on Yelv. p. 71. Paler and Bartlet versus Hardyman In old times after Judgment given in Debt the Obligation was demanded because the Duty was changed into another Nature but since Writs of Error and Attaints have been so frequent the Judges thought it dangerous to Cancel the Deed 6 Rep. 46. Higgins Case Execution IN Scire fac ' on Judgment in Debt upon a Bond Course of the Rings-Bench is never to recite the Term of the Judgment given aliter in the Common-Bench 1 Keb. Tr. 13 Car. 2. fo 104. Hatton and Jackson A Writ of Error is no Supersedeas to stay Execution without Special Sureties to pay the Condemnation Mony Cro. Jac. 350. Goldsmith versus Lady Platt The Action was laid in Comberland in Debt on Bond and Judgment to Recover against Administrator The Plaintiff cannot bring a Scire facias in Westmorland but in the same County where the first Action was laid Hobart p. 4. Musgrove and Wharton Two are bound in an Obligation joyntly and severally and the Obligee Sues one of them in the Common-Pleas and the other in the Kings-Bench and a Capias against him in the Kings-Bench and took him in Execution and after took Elegit against the other and had Lands and Goods delivered in Execution as he might the other who was in Execution by his Body had an Audita Querela and was delivered and because the Judgment in that case must be that he be Discharged of the Execution he shall never be taken again tho' the Land taken in Execution be Evicted Hob. p. 2. Q. tho' in Elegit the pernancy of the profits be Executory yet it s a present Interest and so a Satisfaction 1 Rolls Rep. â— Cowley and Lydiatâ— If Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath Judgment to Recovery a joynt Execution ought to be sued against both But if the Suit were by one Original and several Praecipe's Execution may be sued against any of them 1 Leon. 288. agreed per Cur. 1 Rols Rep. 44. Bâ—nks Case A. and B. are joyntly and severally bound to C. C. took-out a Process against them by several Praecipe's and had two several Judgments and took out two several Executions of one Test viz. Fieri facias against A. and Ca. Sa. against B. Q. if the Writs are well awarded here the Fieri facias was Executed for all and therefore no Ca. Sa. shall Issue out Winch Rep. p. 112. Holts Case If two are bound joyntly and severally to me and I Sue them joyntly I may have a Capias against them both and the death or escape of the one shall not discharge the other But I cannot have a Capias against one and another kind of Execution against the other because tho' they be two several persons yet they make but one Debtor when I Sue them joyntly But if I Sue them severally I may sever them in their kinds of Executions But yet so if once a very Satisfaction is had of one or against the Sheriff upon an escape of one the rest may be releived upon an Audita Querela Hobart p. 59. in Fosters Case One of the Obligors was in Execution by Ca. Sa. and the Sheriff voluntarie permisit ad Lurgum This was pleaded by the other Obligor Judgment pro Querente for the Execution against one is no Bar but that he may Sue the other and tho' he escaped so as the Plaintiff is entitled to an Action against the Sheriff yet that shall not deprive him of his remedy against the other aliter if he had pleaded the Sheriff c. by the License or Command of the Plaintiff Cro. Car. 75. Whittacre and Hamkinson Two are bound joyntly and severally in an Obligation one was Sued and taken in Execution and afterwards the other was Sued and taken
The Defendant pleads the Intestate died before the date of the Obligation and so not his Deed the Jury found the Defendant declared this as his Deed the 30 July 23 Eliz. But that this was dated as before and that the Intestate was living the 30 July but not the 4 of Ap. Per Cur. it is his Deed for tho' the Obligee in pleading may not alledge the delivery before the date for that he is estopt to take Averment against a thing exprest in the Deed yet the Jury are not so estopt Mistake of the date of an Obligation shall not hurt upon non est factum pleaded 2 Rep. 4. Goddards Case Debt on Bond which was set forth to be made the 15 of Nov. 25 Eliz. The Defendant pleads non est factum the Jury find Specially that it was dated the 15 of Nov. 23 Eliz. but it was not sealed and delivered till the 18 of Nov. 26 Eliz. Et si c. Per Cur. this Verdict is found for the Plaintiff the Issue being Generally non est factum it appears to be his Deed but peradventure by Special Pleading he might have helpt himself Cro. Jac. 136. Lady Lane versus Pledal Special Verdict find the Plaintiff hath declared on an Obligation made to himself only without speaking of any other joynt Obligee and that the Plaintiff as Survivor hath brought the Action on non est factum pleaded if it shall be said the Deed of the Defendant in manner as the Plaintiff hath declared Per Cur. the Plaintiff ought to have declared of the Special matter non est factum in this case is no good Plea for he hath not pleaded it respective as to the Obligation but Generally non est factum suum which refers to the Obligor only and the Issue is not whether he made the Deed to the Plaintiff or not but Generally whether he made it at all this Plea non est factum hath not any respect to the Obligee for if the Obligee be a Monk and be another person who bears the Name of the Obligee yet in such cases the Obligee cannot safely plead non est factum Aliter Where one is Sued who bears the Name of the Obligor 1 Leon. p. 322. Case 453. Dennis and St. John W. S. was bound to H. by the Name of J. S. and on that Obligation the Action was brought against him by the Name of W. S. and he pleaded non est factum and the Special matter was found and it was Ruled that upon the Verdict the Plaintiff should not recover but the best way for the Plaintiff was to Sue the Defendant by the Name by which he is bound and then if he appear and plead ut supra he shall be concluded by the Obligation 10 Eliz. Dyer 279. Bond on Covenants some are void and some are not how he shall conclude his Plea 14 H. 8.27 28. Sir Edward A. was bound in an Obligation by the Name of Sir Edmond and subscribed that with the Name of Edward In Debt brought against him he pleads non est factum Per Cur. he might well plead that for it appears that he is not named Edmund and the Original against him was Command Edward alias Edmond and that 's not good for a Man cannot have two Christian-names but if he hath another Name at Confirmation he must be sued by that 2 Brownl p. 48. Sir Edward Ashfeilds Case The Defendant pleads it was delivered as an Escrow and issint non est factum hoc paratus est verificare The Plaintiff demurs per Cur. this is a Plea that may conclude either way and is most usual with this conclusion tho' generally upon a general Negative Plea must be to the Country as non assumpsit infra sex annos Judgment for the Defendant 3 Keb. 142. Manning and Bucknal The Defendant saith tempore confectionis scripti there was J. P. the Father and J. P. the Son the Plaintiff in full life and that he sealed and delivered to J. P. the Father and not to J. P. the Son Judgment si actio it s a good Plea and he need not say non est factum against the Son 16 H. 7.7 vid. supra Siderfin 450. Giffords Case contra A Man was bound to Randolf and in Action brought he declares he was bound Randulfo The Defendant pleads non est factum and adjudged it was not his Deed for that Randulf and Randolph are two Names distinct per Co. in 1 Rols Rep. 271. cited in Lumlies Case Debt brought upon two Obligations the Defendant pleads non sunt facta or per minas its good by one Plea Noy 132. Dentons Case If the Defendant pleads non est factum and further demurs upon the Obligation the Demurrer is void per Prisot 35 H. 6.9 b. After non est factum pleaded the party shall give the Special matter in Evidence 11 Rep. 26. Piggots Case 2 Mary Dyer 112. Debt versus G. B. Executor of S. B. on a Bond made by S. B. the Defendant vim injur ' c. dicit quod scriptum praedictum non est factum suum There is no mention made of S. B. in all the Bar and therefore suum cannot refer to him but being after a Verdict and found to be his Deed. Pro. Querente Latch p. 123. Bakers Case Where a Deed is Enrolled the party may not plead non est factum but he may say Riens passa per le fait 9 H. 6.60 Upon non est factum pleaded and found against him that it was his Deed the Judgment was entred quod sit in misericordia where it ought to have been quod capiatur Per Cur. this is a manifest Error If the Executor plead non est factum misericordia shall be entred 2 Bulst 230. Jones and Cross 1 Keb. 196. Ellisons Case The Defendant pleads non est factum and at the Nisi prius relictâ verifications cognevit actionem Judgment that the Plaintiff shall recover and the Defendant in misericordia and not quod capiatur Noy p. 4. Bavage and Clarke Estoppels in Pleading Vid. Supra tit ' Estoppells COndition if Obligor pay all such sums which he was obliged to pay by his several Writings Obligatory The Defendant saith there was not any Wrintings Obligatory by which he was to pay any sum No Plea he is estopt to say so against the Condition More n. 75. Condition to pay all Legacies which J. S. had Bequeathed by his Will the Defendant shall be estopt to say J. S. made no Will but he may plead he gave not any Legacies by his Will More n. 555. Paramor and Daring Plea per duress vid. title duresse supra Pleas by the Heir to the Bond of his Ancestor Vid. supra titulo Actions of Debt against the Heir Outlawry Pleaded THe Defendant pleads Outlawry to the Plaintiff and concludes in Abatement The Plaintiff pleads null tiel Record the Defendant had a day to bring in the Record and failed and because it was in