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.
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.
the Defendant shall pay to the Plaintiff within 28 daies after demand by her made at his House 100 l. that then c. The Defendant pleads that the Plaintiff on the 4 of May 30 Eliz. departed out of his Service without License The Plaintiff replies that 6 of Sept. the same year she departed out of his Service with License and that the 4 of Octo. after she demanded the 100 l. and he refused absque hoc that she departed out of his Service the 4 of May 30 Eliz. Sans License and the Writ bear date the 18 of Octob. next after the demand fo that the Defendant hath not 28 days after the demand to pay the 100 l. Per Cur. the Issue is taken upon the departure out of the Service and the Defendant in his Plea hath relied upon it and the demand is not material 2 Leon. p. 100. Monings and Warley Condition to pay a Robe and an Horse one cannot make several Issues as he paid not a Robe hoc petit c. he paid not an Horse hoc petit c. aliter in Covenant 2 Keb. 69. Young and Gosling Verdict DEbt on Obligation against C. per minâ—â— pleaded and Verdict and Judgment in the Court of B. The Jury in assessing off Damages say pro misis custagiis but do not say circa sectam expenditis and there is no Verdict to warrant the Judgment and it was Error Stiles 164. Crible and Orchard After non est factum by one pleaded the Jury find the Bond sealed by two it alters not the Bond but they are as distinct Deeds 2 Keb. 872. 881. Zouch and Clay Condition for the payment of 300 l. within six Months after the Death of the E. of Huntingdon The Defendant pleads the 1 of May. 39 Eliz. the Earl died and that within six Months after viz. the 1 of Dec. 41 Eliz. he paid the sum Issue was he did not pay it mode forma The Jury found he did pay it the 1 of Dec. 41 Eliz. and so for the Plaintiff this was Error the payment alledged the 1 of Dec. 41 Eliz. is void it ought to have been enquired whether he had paid it within the six Months and Judgment shall not be given on his implicit confession of Non-payment within the six Months Cro. Eliz. 823. E. Huntington versus Hall The Verdict was non solvit the said 40 l. super quartam dem Octobris where it ought to have been supra quartam decimam Judgment on this Verdict and Error brought yet amended Cro. Jac. 185. Harrison against Fulstowe Condition for the payment of 100 l. by J. A. J. C. and J. V. or any of them J. A. pleads that he paid it at the day the Plaintiff replies that neither the said J. A. J. C. nor J. V. nec eorum oliquis had paid it at the day the Jury find that the said J. A. had not paid the said 100 l. Judgment pro Querente Error assigned because the Verdict was not according to the Issue for it might have been paid by any of the others Per Cur. it s a good Verdict the addition of J. C. and J. V. not mentioned in the Bar was but Surplusage and their finding J. A. did not pay the Mony its sufficient and if it had been proved that any of the other two had made the payment the Jury should have been directed to find that the Defendant had paid it by such Cro. Jac. p. 6. Arscott and Heale Judgment Costs and Damages WHere the Plaintiff had a Verdict for him there Judgment is quod recuperet debitum dampna and Costs assessed by the Jury and further de increment ' per Cur. But if he had Judgment on non sum informatus Demurrer or nihil dicit the Judgment is quod recuperet debitum damna which include the Costs In the Common Bench it is quod recuperet debitum damna occasione detentionis 2 Rols Rep. 470. Broad and Nurse Judgment quod recuperet debitum 6 s. 8 d. pro damnis occasione c. and no mention pro misis custag quod inquir ' damna includes both and so is the course of Entry Cro. Jac. 420. Ashmores Case The Judgment was quod recuperet debitum suum and doth not say praedict ' its good enough there is but one Debt and the ideo in the Record implies it to be the same Debt Stiles 251. Port and Midleton The Court may tax Damages without a Writ of enquiry in Debt on a Judgment upon Bond Siderfin p. 442. Roo and Apsley H. 21. and 22. Car. 2. Action of Debt on several Obligations having but one Count and several Issues some found for the Plaintiff and some for the Defendant and several Damages but intire Costs It was prayed that Judgment may be reverst as to part But a Judgment cannot be reverst in part neither as to persons or things and Hobart p. 6. Miles and Jacob denied to be Law 1 Keb. 232. Anonymus Debt sur Obligation of 16 l. Plantiff declares ad damnum 10 l. On non est factum found pro Querente The Jury gave the Plaintiff Damages 9 l. besides the 16 l. and he declares but to his Damages of 10 l. and so it exceeded But Judgment pro Querente for the Court may increase Costs Noy 61. Wolf and Meggs The Plaintiff Demurs on the Defendants Bar and the Court awarded the Plea good upon which Judgment the Plaintiff â—â—rt Error and therein the Bar awarded insufficient and so the Judgment reverst and the Judgment was that the Plaintiff should recover his Debt and Damages as if he had recovered in the first Action and not to be restored to his Action only Yel p. 41. Taylor and More In Misericordia or Capiatur WHere the Party denies the Deed of his Ancestor and it is found against him by Verdict Misericordia shall be entred against him and not a Capiatur Where the Party denies his own Deed and it is found against him by Verdict a Capiatur shall be entred against him 2 Sanders 191. Mortlack and Charlton Where the Defendant pleads non est factum and after diverse Continuances relictd verificatione confesseth the Action Qu. if Judgment shall be given on the Plea or on the Confession 8 Rep. Beechers Case is that a Capiatur shall be entred but the better Opinion is that the Defendant shall not be fined but amerced and a Misericordia shall be entred against him on his own Confession and so is the course to enter in Com. B. and B. R. also 2 Sanders 191 192. The reason is good in Cro. Jac. 64. Davis and Clark and 2 Rols Rep. Gerard and Warren For tho' the Defendant by his false Plea hath delayed the Plaintiff of his Action yet the Capiatur is not for the delay but for the falsity rather And then when he comes in and before Verdict confesseth the truth he saves his Fine for he hath put the Court to no trouble 2 Keb. 694.
are in full life Jones p. 303. Vid. Obligation In Debt sur single Bill of 50 l. the Defendant after imparlance pleaded that after the last continuance he had paid the Plaintiff 5 l. parcel of the 50 l. and demanded Judgment of the Bill petit quod billa cassetur the Plaintiff demurs It is an insufficient Plea because the Defendant did not alledge he had an acquittance which he ought to produce if he had an acquittance he might have pleaded in Bar or Abatement but this Plea is not peremptory because it concludes in Abatement respondeas ouster awarded Allen 63. Loder and Hampshire Allen 65. Beaton and Forrest Stiles 212. Hollingworth 15 H. 7.10 Payment without Acquittance is no Plea to a single Bill Crook Eliz. 157. And yet if such Payment be pleaded upon a Bill it being admitted and tryed against him who pleaded it the tryal is good and Judgment shall be given thereupon as in Blunden and Wood's Case Crook Jac. 85. For though Payment without Acquittance be no Plea and Issue is joined upon a thing not material for if the Defendant hath paid the Sum without Acquittance yet the single Bill doth remain in force But in as much as there was an Issue joyned upon an affirmative and a negative which is found pro Quer. it is expresly helped by the Stat. 32 H. 8. and 18 Eliz. Judgment pro Quer. 5 Rep. 43. Chamberlain and Nichol's Case The Plaintiff might have demurred upon the Plea and good Crook Eliz. 455. mesme Case and More n. 908. As in Debt the Defendant demands Oyer which was to pay Mony 31 Sept. the Defendant pleads solvit ad diem and upon Issue joyned found for the Plaintiff The Condition being impossible the Obligation is presently due and it was an Issue upon an insufficient Bar which being found for the Plaintiff is aided by the Stat. Jones p. 140. Jiggon and Purchas Debt upon a Bill whereby the Defendant acknowledged he had received 7 l. of the Plaintiff ad emendum a pair of Bellows c. to the use of the Plaintiff and avers that he had not bought the things nor paid the Mony The Plaintiff in this Case may have Debt or Account Cro. Eliz. p. 644. Earl of Lincoln versus Topcliff Obligations Joynt Joynt and Several By what Words or when an Obligation may be said to be Joynt or Several Actions and Declarations thereon FOUR are bound in an Obligation by these words utrumque nostrum the Obligee may charge any of these severally But if he will have a joint Action of Debt against two of the four the Writ shall abate for if the Plaintiff will charge them joyntly the other two which are not named shall be charged also with them joyntly by the same Deed 10 H. 7.16 34 E. 3. Dyer 129. Two are bound per joint Words and every of them by himself puts his Seal to the Deed this shall not make the Obligation several 10 H. 7.16 Two bind themselves vel alter eorum this makes the Obligation joint or several 7 H. 4l 6. b. Two bind themselves quemlibet nostrum this is joint or several 2 Rolls Abr. 148. Two bind themselves vel utrumque nostrum this is joint or several for this word vel makes it several at Election 2 Rolls Abr. 148. Hankerson and Sir Tho. Sandelon mesme Case vide 1 Brownl Rep. p. 121. Cro. Jac. 322. â— Bulst 70. Three are bound jointly and severally in one Bond the Obligee brought Debt against two this he cannot do but he may have one Precipe against the Three or several Precipes against every one 27 H. 8.6 singulos nostrum 1 Brownl 121. is joint or several Three were bound in a Bond by these words Obligamus nos quemlibet nostrum conjunctim It s a joint Bond and not several for the word quemlibet is expounded by the word consunctim 3 Leon. p. 206. Wigmore and Wells More p. 390. Uterque recognovit makes a joint Bail Bond or several at election Cro. Jac. p. 45. Hargrave and Rogers Noverint universi nos I. B. A. K. H. F. teneri c. ad quam quidem solutionem c. Obligamus nos Haeredes Executores Administratores nostros sigillis nostris sigiâ—at Plaintiff declares against the Defendant soâ—e Defendant demurs upon Oyer because it appears upon Oyer that they are joint Per Cur. The two others are named yet it appears not that they put their Seals to it and so the Obligation is single but if the truth were that the other two had sealed as well as the Defendant then the Defendant if he would take advantage of this ought not to have demurred upon the Oyer but he ought to have pleaded in Abatement that the other two Persons sealed the Obligation who are yet in full Life and so pray Iudgment of the Bill 1 Sanders Trin. 21 Car. 2. fol. 271. Cabel and Vaughan Though sundry Persons may bind themselves quemlibet eorum and so the Obligation shall be joint or several at the election of the Obligee yet a Man cannot bind himself to three and to each of them to make it joint or several at the election of several Persons for one and the same cause for the Court shall be in doubt for which of them to give Judgment which the Law will not suffer 5 Rep. p. 18. b. If Merchants in a Charter-Party covenant with the Owners separatim that one Merchant shall pay 3 l. another 3 l. and so of the rest the words are conveniunt seporatim and at the end there is such a Clause Et ad performation omnium singular ' convention ' ex parte praedict ' Mercator ' perimplend ' quolibet Mercator praedict ' separatim obligat seipsum praefato Majori pro Proprietariis en double le fraight the Covenant is several and so is the last part videlicet the Obligation 5 Rep. Mathewsons Case 2 Rolls Abr. 149. In an Indenture there are three of the one part and two of the other part in which the two covenant jointly and severally to do a certain thing and the third covenants jointly and severally with the said two after the performance of the said thing by the two to pay to the said two a certain Sum for each particular c. and after ensue these general words Pro vera reali performatione omnium articulorum agreamentorum praedictorum alternatim utraque partium praedictarum obligavit se Haeredes Executores c. in subter penalitatem 60 l. Sterlingorum This Covenant is joint and not several and an Action on the last Clause cannot be brought against one of the said three only 2 Rolls Abr. 149. If an Obligation be writ in the Name of two joint and several and they severally deliver the Obligation at several times and places this is yet joint and several 8 H. 6.31 Debt on joint Obligation vers Survivor Defendant pleads one of the Obligors died and the Plaintiff
of Exeter and Star A Condition to appear in B. R. where the Process is returnable c. the Defendant said in facto that he had appeared secundum formam c. Et hoc petit c. there was a Repleader awarded for it must be tried per the Record A. is bound to appear such a day c. and A. at the said day goes to the Court but there no Process is returned then the Party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance Vide the Form of Entry in such Case if the other Party pleaded nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court of Common Pleas cannot write to the Justices of the Kings Bench to certifie a Record hither 1 Leon. p. 90. Bret and Shepard Debt upon a Sheriffs Bond Jones for the Bail prayed the Principal being now in Person may be admitted to plead discharging th Amerciaments which is the course of the Court where the Prosecution is fresh but where the Defendant in the Original Action i. e. the Principal is become insolvent per Cur. the Bail Bond is the only remedy and they will not discharge that on the ordinary Rules but in this Case because the Bail appeared on the very day of the return and the default is the Plaintiffs own and the Bond not above a year old paying the Amerciaments and Costs the Bail was discharged and the Principal admitted to plead 2 Keble 545 553. Flood and Williams If the Defendant appears not to the Sheriffs Bond according to the Condition thereof the Plaintiff may by leave of the Sheriff sue the Bond in the Sheriffs Name but it s at the Plaintiffs Election to amerce the Sheriff Stiles Pract. Register p. 221. When Bail is put in de bene esse as Bail taken in a Judges Chamber is the Plaintiff cannot sue the Sheriffs Bond till it be refused or set aside but he ought to except against it in the Judges Chamber 1 Keblâ— 478. Anonymus The Court cannot compel a Sheriff to assign his Bond the Party was arrested and through his default in not returning his Writ the Defendant died Per Cur. in this Case he shall not take advantage of his own wrong but shall now assign the Bail Bond or pay the utmost Amerciaments 2 Keble 388. Hill and Browning A Bail Bond was discharged upon motion the Mony being paid before the return of the Writ and appearance ordered 3 Keble 316. Randuls Case In Det sur Bond the Defendant pleads Stat. 23 H. 6. and shews that V. was in Execution and the Bond made for his deliverance against the Statute The Plaintiff replies tempore confectionis of the said Bond V. was at large absque hoc that he was in Prison tempore confectionis c. The Traverse is not good for one may be in prison and make a promise to make a Bond for which he is enlarged and within an hour after he makes the Bond the same is within the Statute it ought to be absque hoc that it was made pro deliberatione 2 Leon 107. Bowes and Vernon 2 Keb. 512. Die and Adams The Condition was if Thomas Manningham keep the Sheriff without damage against our Lord the King and one Th. P. and at all times be at the Commandment of the said Sheriff as a true Prisoner and appear before the Justices c. then the Obligation to be void The Defendant pleaded the Statute of 23 H. 6. and that the Body of Tho. Mannigham was in Execution upon a Recognisance and that the Sheriff made the Obligation for the Delivery of the said Thomas Manningham and demanded Judgment si actio i. e. if the Plaintiff ought to maintain his Action this is no good Conclusion of the Plea he ought to have concluded issint nient son fait For the Statute saith it shall be void and if it shall be void then it is void from the beginning and then it is not his Deed. And farther the Defendant had not wisely concluded his Plea for this special Conclusion had straitned the Defendant so that if the Obligation be void for any other cause the Defendant shall not have benefit of it and yet because it appeared to the Judges on the matter in Law that the Plaintiff had no cause of Action the Court gave Judgment against him for the Obligation is void by the Letter of the Statute for it makes void Obligations taken in other manner which extends to avoid Obligations for bayling those which are contained in the 2d Branch as those in Execution c. Plowd 66 67. Dive and Manningham Yet the Condition was that the Defendant should appear in B. R. to answer in a Plea of Trespass and satisfie the Damages The Defendant pleads the Statute of 23 H. 6. that the Bond was made for his enlargement and issint not his Deed. The Plaintiff demurs specially upon the Conclusion of the Plea which ought to be Judgment si actio and agreed the Plea to be naught Allen p. 58. Leech and Davies Det sur Obligat dated 25 Sept. The Defendant pleads a Ca. sa was awarded against B. who was taken on it 30 Sep. and that the Obligation was made for the enlargment of B. The Plaintiff demurs and had Judgment because it appears the Bond was made before the Arrest and so could not be avoided by 23 H. 6. but he ought to have pleaded that with a primo deliberat after the Arrest Noy 23. Collins and Phillips Det sur Bond by the Sheriff dated 13 Junij the Defendant demanded Oyer of the Condition which was that if he appear here Veneris prox post tres Trin. and pleads Veneris prox post tres Trin. was 14 Junij and that he was imprisoned by the Plaintiff till 19 Jun. and that the Obligation supra fuit primo deliberat per le def 19 Junij absque hoc that this was delivered as his Deed before the 19th of June The Defendant demurs Per Cur. this is not a good Traverse it ought to have been absque hoc that this was delivered as his Deed before die Veneris prox post tres Trin. For if the Traverse supra be allowed the Plaintiff shall be excluded from answering to the time alledged of the Return although it be false Siderfin p. 300. Courtney and Phelps 2 Keb. p. 108 109 122. mesme Case The Defendant pleads to the Sheriffs Bond that that there was no Writ ever delivered to the Sheriff and so would avoid it per Stat. 23 H. 6. The Sheriff after the Writ sent out but before delivery takes Security which per Cur. he may if the Defendant will give it 1 Keb. 554. Brumfield versus Penhay The Defendant pleads Stat. 23 H. 6. and that he was in Custody by Warrant of a Writ returned Veneris post Oct. Pur. The Plaintiff replied the Defendant was taken by a Warrant on a Writ returned Sab.
l. the Obligation is forfeited 36 H. 6.9 b. So if the Condition be that if the Obligor do not pay to the Obligee at such a day 10 l. then the Obligation being 100 l. shall be void this is a good Condition and the Obligor may say in an Action on the Obligation that he did not pay the 10 l. and so avoid the Obligation for though the intent was not so yet the words were so and it ought to be adjudged upon the words 39 H. 6.10 cited 1 Rolls Abr. 419. A Condition if the within bounden J. B. shall happen to dye without Issue of his Body that then if the said J. B. by his last Will or otherwise in writing in his life time shall lawfully assure c. Per Dodderige this is repugnant and impossible he ought to dye without Issue first and then make the Conveyance but three Judges contra The Condition being made for the Benefit of the Obligor shall have Construction according to the intendment of the Parties and the intention was that a Conveyance shall be made by the Obligor in his Life by Will or otherwise so that they shall remain and be assured to c. Jones Rep. p. 180. Eaton and Laughter The Condition was if the Defendant pay the Plaintiff 2 s. per Week until the full Sum of 7 l. 10 s. be paid scilioet on every Saturday and if he fail of payment at any one day that then the Bond to be void The Defendant pleads he did not pay at such a day the Plaintiff demurs Per Cur. the Condition is repugnant and void and the Obligation single Siderfin H. 14 15 Car. 2. pl. 14. Vernon and Alsop Vid. Siderfin 456. Maleverer and Hawksby contra 1 Keb. 356 415 451. Vernon's Case A Condition impossible What shall be said a Condition impossible and the Effect of it IF the Condition of an Obligation be that the Obligor shall assign to the Obligee a Commission of Bankrupsy this is an impossible Condition and therefore void and the Obligation single for it is impossible to assign the Commission 1 Rolls Abr. p. 419. Street and Daniel If a Condition be quod debet pluere cras this is a good Condition for he hath taken it upon him at his peril and it is not impossible in it self 22 E. 4.26 If a Condition be that the Obligor shall go from St. Peter's Church in Westminster to St. Peter's Church in Rome within three hours this is impossible and void Co. Lit. 206. b. If the Condition be to save harmless the Obligee against a Stranger of an Obligation in which the Obligee stood bound to the Obligor this is a good Condition for although by no possibility the Stranger may have to do with this yet if he will save harmless against him it is within the Condition for it may be he had some fear of damage by him Quaere de hoc 1 Rolls Abr. p. 420. Where the Condition is impossible the Bond is single contrary where a man is charged by Act in Law 2 Leon. 189. in Wood's Case If the Condition of an Obligation or Feoffment be impossible at the time of the making it the Condition is void and the Obligation single because the Condition is subsequent but if a Condition precedent be impossible at the time of the making there all is void because nothing passeth before the Condition performed Co. Lit. 206. 1 Rolls Abr. 420. Casualties that hinder performance shall not excuse as Floods hindring appearance or being imprisoned Lit. Rep. 88 97 115. Melvin's Case 41 E. 3. double pl. 77. 2 E. 4.2 The Effect of a Condition impossible and how it shall excuse IF the Condition of a Bond or Recognisance c. be impossible at the time of the making the Condition the Obligation c. is good and single as a Condition to go to Rome in three hours the Condition is void and the Obligation is good So if I am bound in an Obligation with a Condition to stand to the award of J. S. provided that the Award be made before the 10th day of May next and provided I have warning 15 days before the 10th day of May and this Obligation is made the 9th day of May this is a void Condition So the Condition is that I will be non-suited in such an Action or assure such a piece of ground when in truth there is no such Action or piece of ground this Condition is void and the Obligation remains single and good But in all Cases when the thing to be done by the Condition of a Bond or Recognizance c. is possible at the time of the making the Condition and before the same can be performed the Condition becomes impossible by the Act of God or of the Law or of the Obligee in this case the Obligation is saved and the Obligation and Condition are both become void 1. By the Act of God If a Man be bound with a Condition that he shall appear the next Term in such a Court and before the day the Obligor dieth hereby the Obligation is saved Cro. Eliz. p. 277. Trop and Bedingfield Pleaded before the said Feast J. dies Judgment si actio a good Plea the Condition is discharged and the Obligation void 15 H. 7.2.13 If J. H. had been bound with him then he must have done it Qu. So the Act of God may discharge the performance of the Condition If he that is let to Mainprise be dead before the day his death excuseth the Mainpernors Water Plaintiff Perry and Spring Defendants 1 Rols Abr. p. 449. If A. recovers det vers B. en Bank and B. brought a Writ of Error and found Mainpernors to prosecute with Effect and after dies before the Return of the Writ this Act of God shall excuse the Mainpernors 1 Rolls Abr. tit Condition p. 450. Middleton and Twine If a Man becomes Bail for another in an Action and after the Plaintiff recovers against the principal and the Capias against him is returned non est inventus and this is filed and after the principal dyes before any Scire Fac. sued out against the Bail yet this shall not excuse the Bail otherwise if he had died before the Capias returned and filed 1 Rolls Abr. tit Condition p. 450. Timberly and Booth and Calf and Davies and Hobbes and Doncaster A Condition to pay yearly 40 l. during the Life of c. at the Feast of St. Michael and the Annunciation or within 30 days after every of the said Feasts the Wife dyes within the 30 days this shall discharge the payment due at the Feast before her death Crook Eliz. p. 380. Price and Williams If a Condition consists of two parts in the disjunctive in which the party had Election which of them to perform and both are possible at the time of making the Condition and the one becomes impossible after by the Act of God the Obligee is not bound to perform the other part for
not stay to wait for performance perhaps then he may stay as long as he lives but as on Bonds of Abritrament on breach of either Party hath remedy 2 Keble 674. Modern Rep. 64. Siderfin 464. Humlock and Blacklow In Debt for performance of Covenants they must be set out in Latin Allen p. 87. Of Assignment of a Breach on Bonds of Covenant IF Breach be assigned after the Action brought its ill the Defendant demands Oyer of the Obligation and it was for performance of Covenants the Plaintiff replies and assigns a Breach in non-payment of the Rent the 20th day of June 17 Car. and the Bill was filed Trin. 17 Car. which Term ended the 14th of June therefore ill Siderfin 307. Champions Case Bond of Covenants to perform the Indenture of a demise the Plaintiff declares he made the Lease the 28th of May to the Defendant and that postea scil 27th of the same month of May the Defendant broke the Covenant Demur because the breach is set forth before the Lease began and so no cause of Action but by Bacon where the postea scil are repugnant as here they are the postea shall be good to signifie the time of the Covenant broken and the scil shall be void Stiles p. 45. Anonymus If an Obligation conditioned for payment of Mony become payable hanging the Action this had made the Action good otherwise where it is conditioned for performance of Covenants and there is a Breach pendent the Action Q. Siderfin in Champions Case p. 308. The Plaintiff must assign a Breach to intitle himself except in some Cases vide infra on a Bond of Covenants that the Defendant should not deliver possession to any but the Lessor or such Persons as should lawfully recover the Defendant pleaded he did not deliver but to such Persons as lawfully recovered it the Plaintiff demurs Judgment pro Quer. Per Twisden on affirmative Covenants general pleading of performance is sufficient and so on negative for its sufficient for the Defendant to plead an excuse and the Plaintiff must assign a breach to entitle himself 1 Keble 380 413. Nicholas and Pullen One Covenant was That J. B. her Heirs c. should perform Covenants in a Deed Poll whereof one was That if I. died before the Plaintiff had satisfaction on Judgment assigned then the Administrators de bonis non of H. B. should farther secure that Assignment the Defendant pleaded performance generally the Plaintiff replies such a day I. died and sets not forth any Breach Judgment pro Defendente 2 Keble 288 301. Trussâ— and Mading The Plaintiff is not bound to alledge a special Breach when the Defendants Plea contains speciall Matter A Condition to perform Covenants in an Indenture one was That I. the Defendant should permit Guy the Plaintiff from time to time to come and see if the House leased by Guy and K. his Wife were in repair I. pleads in Bar that I. B. and K. his Wife were Tenants in Tail of the House and had Issue that I. B. died K. married Guy the Plaintiff and they two make a Lease to him for 20 years and that W. the Issue in Tail such a day entred before which entry the Condition was not broken Guy replies That William came with him upon the Land to see if Reparations c. and traverses the entry of William in manner and form prout and Issue joined upon the Traverse c. and found pro Quer. and Judgment it was assigned for Error that there was not any breach of Covenant in I. assigned and so had shewn no cause of Action but per Cur he need not in this Case for the special Plea of the Defendant had disabled the Plaintiff that he could not assign any breach of Covenant but of necessity ought to answer to the special Matter alledged It s not like the Case of Arbitrament in Debt on Bond to perform Award the Defendant pleads nul â—iel Award then the Plaintiff in his Replication ought to set forth Award and assign his Breach because the Defendants Plea 〈◊〉 general but if in such Case the Defendant should plead a Release of all Demands after the Arbitrament by which he offers a special point in Issue there it sufficeth if the Plaintiff answer to the Release without assigning any Breach Yelv. p. 78. Hob. cont â— Brownl p 89. Jeffry and Guy 2 Keb. 46 74. â—arch and â—lackaâ— The Condition was That wherâ— Ed. Tailor had bargained c. to the Plaintiff a Close c. and whereas the said Ed. T. hath already â—ort gaged to J. S. divers Lands in G. whereby the said Close is either mortgaged or supposed to be mortgaged c. if therefore the said Close of Pasture at the day mentioned in the said Indenture of a Mortgage be redeemed and set free c. the Defendant pleads the Close was not mortgaged to J. S. sic dicit quod clausum praed c. fuit redempt liberat exonerat c. the Plaintiff replies That the said Close was mortgaged to the said J. S. and upon this Issue joined and found pro Quer. and 't was moved in Arrest of Judgment that the Replication was not good for he ought to have replied quod pignoratum fuit to the said Smith and is not redeemed for it might be redeemed before the day Per Cur. it s a good Replication 1. The Defendant hath offered a particular point in Issue that it was not mortgaged and the Plaintiff answers it when he saith it was mortgaged and need not alledge that it was not redeemed for there shall never be intended any redemption because the Defendant pleads it was not mortgaged as J. S. is bound to marry the Daughter of J. D. upon Easter-day next in Debt on this Obligation if J. S. pleads in Bar that the Daughter of J. D. died before Easter-day it s a good Plea and its a good Replication that the Daughter was living on Easter-day without saying farther that he had not married her because a special Plea in Bar is always answered with a special Replication in the Point alledged 2. Because the Mortgage is supposed to be made between a Stranger and the Defendant to whose Acts of Redemption c. the Plaintiff is not privy and cannot have conusance or notice of theire Acts its excellent Learning which hath made me more at large recite it Yelv. M. 44 and 45 Eliz. R. R. fol. 24. Baily and Tailor Cro. Eliz. p. 899. mesme Case the difference is such pleading after Verdict should be good but not if demurred to as the Condition was the Defendant should render account of all such Goods of A. as came to his hands or pay his part for them The Defendant pleads nothing came to his hands The Plaintiff replies a silver Bowl came to hands Demurrer Ill Replication for he should have said and had not paid for it Siderfin 340. 1 Keb. 275. Hayman and Gerrard Though in Obligations put in Suit for
' 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-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
Vide tit Condition Exposition of Conditions 110 Execution on Statutes and Bonds 262 265 410 Actions brought by Executors on Obligations 355 Summons and Severance 359 Release by Infant Executor ibid. Actions brought on Bonds against Executors or Administrators 361 F. FEme Covert makes a Bond how far binds 13 Bonds made to Baron and Feme 18 To Feme Covert ibid. To Feme Sole 19 Actions on Bonds by Baron and Feme 357 Against Baron and Feme 363 Condition to acknowledge a Fine 184 185 186 187 Who to do the first Act 352 Bond when said to be forfeited Vid. sparsim per tot 99 c. 142 179 Forgery of Bonds 345 Foreign Plea 443 Foreign Attachment pleaded 445 Fraudulent Deed need not be pleaded but may be given in Evidence 295 G. OF Bonds given for Gaming Mony 53 Act of God Vid. supra H. DEbt on Bond against the Heir 292 Riens per descent 293 What shall be Assets ibid. Declarations 297 Judgment ibid. I. JEofail 115 Impossibility excuse a Condition 97 98 Condition impossible the Effect of it ibid. Pleas after Imparlance Vid. tit Pleadings Infants entring into Bond acknowledging Statutes Recognisances 14 259 Insensible Conditions 100 Bonds joint or several 32 Actions by joint Obligees 356 Actions against joint Obligors 364 Joyining Issue on payment 461 On a Collateral point 462 Issue Tryal on Bonds Covenants 205 Of pleading to the Jurisdiction 449 Judgment on Bonds sued 465 K. BOnd made to the King Vid. Recognisance Condition to observe the order of the Kings Counsel 240 Assignment of Debts on Bond to the King 318 319 L. OF Bonds on Covenants in a void Lease 195 Condition to accept a Lease 232 Conditions concerning Legacies 239 Conditions about Licence 241 Condition to pay during Life 140 M. BOnd void for Maintenance 47 48 What is Maintenance and what not 317 Condition to pay Mony upon Marriage 131 Condition to convey Land upon Marriage 235 Bod void by Menass 107 Misnomer or Variance in the Names Additions 380 Monstre des faits 141 195 303 381 Bond of Covenants in a Mortgage 196 N. NAme of Baptism Variance between the Bond and Declaration 17 Variance in Names Additions 378 One Non compos mentis entring into Bond 16 One may not plead he was not sane memory at the time of his Sealing the Bond Vid. Pleadings Non est factum where pleaded to a Bond 36 430 c. Vid. tit Pleadings Of Non-Residence and of Conditions against the Stat. of 13 Eliz. c. 10.14 Eliz. c. 11. 58 Notice where requisite and where not in the performance of a Condition 134 135 166 218 224 308 347 351 O. THE Nature of an Obligation 1 Faux Latin in Obligations or incongruous 3 The Frame and wording of Obligations and Bills Obligatory 13 What persons may or may not make Obligations ibid. To whom Obligations may he made 18 Obligations joint or several 32 By what Names bound 16 Of sealing and delivery of Obligations 22 27 Bond to Baron and Feme to Feme covert to Feme sole 18 19 Bond to alien 19 Bond to a Body Corporate ibid. Bond against the Heir Vid. tit Heir Bonds of Arbitrament 301 Bonds of Apprentices 305 Bonds for the Good Behaviour 509 Assignments of Obligations 317 Forgery of Bonds 345 Detinue of Bonds 346 Suits on Obligations 355 Vid. Suits Bond where suable 368 Oyer 381 Outlawry pleaded 441 How and by what means an Obligation good in its Creation may be defeated extinct or discharged by matter ex post facto in Deed or Law 473 478 479 A discharge of a Condition in part is a discharge of the whole 479 Of buying Offices 5â— P. Payment PErsons to whom Performance or Payment to be made or done 110 Of Payment of Mony on a Bond in general 112 What Persons are bound to pay or do by the Condition ibid. Of Payment by Collateral satisfaction 113 Of Payment without Acquittance pleaded to a single Bill 31 Payment how to be taken 112 Time of Payment amongst Merchants 119 Place of Payment when a Place is limited 126 455 When no Place is limited 128 Time of Payment Vid. tit Time Of Payment at several days Of Performance of Conditions 122 c. Et sparsim per tot Performance on Bonds of Covenants where to be pleaded specially and where generally 194 Vid. tit Bonds of Covenants Payment of a lesser Sum in satisfaction 408 409 Place of Payment mentioned in the Condition and Venue 455 Joining Issue on Payment or not 461 What things will excuse the Performance of a Condition 353 Pleadings Where Performance generally may be pleaded and where it must be shewed specially and how 392 Of Pleading non damnificatus 209 395 In many cases the Law allows general Pleading to avoid Prolixity 34 396 Of Certainty in Pleading 397 Regularly it is good to pursue the Words of the Condition and yet he ought to plead the Certainty of time and place and manner of performance 398 In Pleading negatively he ought to traverse all the Condition 399 Where a certain duty accrews by the Deed at the beginning this ought to be avoided by a matter of as high a nature 400 Sometimes matter en fait shall avoid an Obligation ibid. A special Plea in Bar it always to be answered with a special Replication in the point 401 The Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment though the Issue be found for him 401 Pleas in Abatement Vid. Abatement Pleas after Imparlance what are good and what not 404 Concord Acceptance pleaded Vid. Concord Payment of a lesser Sum how to be pleaded 408 Collateral things or satisfaction pleaded in performance or for Payment where good or not 410 Payment pleaded and parcel paid 413 By command of another 415 Where mistake in pleading the Sum or the time is aided and where not ibid. Release pleaded Vid. tit Release Tender uncore prist pleaded 425 In what Cases non est factum is a good Plea and in what Cases and where a special non est factum as in Cases of Alteration Rasure Seals broken c. and Delivery as Escrow 430 c. 439 Estopples in Pleading Vid. tit Estoppel Plea per Duress Vid. tit Duress Plea per Heir to the Bond of the Ancestor Vid. supra Actions of Debt against the Heir Outlawry pleaded 441 Attainder of himself pleaded not good 442 Defendant pleads he was non sane memory no Plea 443 Recusant convict pleaded ibid. Peerage pleaded ibid. Of Foreign Pleas ibid. Foreign Attachment pleaded 445 Of pleading to the Jurisdiction 449 Recovery pleaded in Bar in another Court and against another person 450 Bond to be a true Prisoner for Fees 88 Condition to deliver Possession 228 Pleadings on Scire Fac. against the Bail 277 Condition to satisfie embezilled Goods after due Proof made 306 How Proof to be made 307 Pleadings on Sheriffs Bonds 80 R. OF Rasure in Obligations and Conditions 206 431
time it is adjudged that he must conclude to the Country Et issint nient son fait de hoc ponit c. 3 Keb. 26 30. Forth and Fletcher Edwards and Webb ib. p. 142. Manning Bucknal contra Per Hale An Escrow may be given in Evidence on non est factum as well as Suspension on nil debet in Manning and Bucknal's Case 3 Keb. 142. If a Man be obliged to perform things in such a Deed it is no Plea to say he delivered this as an Escrow c. issint non est factum 1 Rol. Rep. per Cook 84. in Fletcher and Tarrer's Case Sealing THE Plaintiff declares that the Defendant per scriptum suum obligatorium concessit se teneri c. without saying sigillo suo figillat and good in the Common Bench for there the Presidents are so Delivery is never alledged so neither is it necessary to alledge the Sealing When he saith per Scriptum suum obligatorium all necessary Circumstances are intended to concur Crook Eliz. p. 738. Penson and Hodges Witnesses ONE ought not to be allowed to be a Witness to prove an Obligation or other Deed which he takes in the name of another For if he might be so admitted this is on the matter to suffer him to prove a Deed or Bond made to himself Stiles Pract. Reg. 221. Obligations are either Single called a Bill Joynt Joynt or Several Bill A Bill penal is called a single Bond and a Bill may be without a penalty In Debt on Obligation no Oyer being demanded it is intented a single Bill As to the Frame of the Bill and by what Words and in what Form it shall be good I have shewed before in Title The Frame of Obligations Now I shall set down some Cases as to Declarations and Pleadings on Bills A Bill Obligatory written in the Plaintiffs Book and the Defendants Hand and Seal to it is good Crook Eliz. p. 613. Fox and Wright I acknowledge my self to owe and be endebted to J. F. and W. S. in the sum of 91 l. 1 s. 8 d. to be paid the first of Novemb. following for which payment to be made I bind my self to J. S. in 100 l. Qu. Whether F. ought to bring the Action for the 100 l. or both of them for the 91 l. 12 s. 8 d. Crook Jac. 291. Foxal and Sands versus Corderoy A Bill was made in this manner Memorandum That I Will. Jethro do owe and am indebted to Edmond Hamond in the Sum of Ten Pounds for the payment whereof I bind my self c. In witness and after the In Witness it was thus subscribed Memorandum That the said Will. Jethro be not compelled to pay the said 10 l. until he recovers 30 l. upon an Obligation against A. B. c. And in the Count no mention was made of this Subscription but this appears when the Defendant prays Oyer of the Bill the which was then entred verbatim on Record Upon which the Defendant demurs because it is not mentioned in the Count it being a Condition precedent aliter of a Condition subsequent But per Curiam this which is after in witness is not part of the Deed but may be a Condition or Defeasance and so need not be contained in the Count but then the Defendant ought to have pleaded so and not demurred for this makes the Bill conditional Judgment pro Quer. 2 Brownl 97. Hamond and Jethro Bill of 68 l. with Covenant to pay it when such Bills be stated c. the Covenant being in the same Deed works as a Defeasance 2 Keb. 624. Holday and Otway Debt for 40 l. upon a Bill Obligatory and declares that the Defendant by his Bill dated c. confessed himself to be indebted to the Plaintiff in 20 l. solvend at Michaelmas next following ad quam quidem solutionem he bound himself in 40 l. and for Non-payment of the 40 l. the Action brought The Declaration is ill because it is not therein alledged that the 20 l. was not paid at the day for if otherwise the 40 l. was not due for it is not an Obligation with a Condition Crook M. 1 Car. 515. Bains and Brighton 1 Rolls Abr. 414. M. 14 Car. Mesme Case Danes and Brett But in Stiles p. 23 Car. B. R. Debt on a Bill Penal and Verdict pro Quer. It was moved in Arrest of Judgment that the Plaintiff shewed not that the Defendant did not pay the Mony at the day limited in the Bill but only saith non solvit c. 2. He declares the Defendant was bound to pay such a Sum legalis monetae and doth not say Angliae the Court over-ruled both Exceptions and the Plaintiff had Judgment Bill of 70 l. to be paid on demand it is a duty presently and there needs no actual demand Cro. Eliz. p. 548. Cap and Lancaster If the Plaintiff declares generally that he often requested c. and the Defendant demur to the Declaration per Cur. he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good demurrer because a special demand was in the Bill and no special demand alledged in the Declaration 1 Brownl Rep. 56. On a collateral promise to pay mony on demand there must be a special demand but between the Parties it is a debt and sufficiently demanded by the Action Aliter if the Mony be to be paid to a third person or where there is a penalty 3 Keb. 176. Ashenden's Case Debt on Bill to pay 50 l. on demand and on Non-payment the Defendant to pay an 100 l. Action is brought for the 100 l. the Defendant pleads there was no demand the Plaintiff demurs per Cur. the Action is a demand for the 50 l. but no cause to forfeit the 100 l. the Defendant should plead tender of the 50 l. uncore prist But where the Condition of an Obligation is to pay on demand that is a distinct deed from the Bond and there is no Title to the Forfeiture without demand But the debt here of 50 l. is not lost by not demanding therefore in Bar the Defendant must say uncore prist Judgment pro Quer. 3 Keb. p. 577. Ramsey and Rutter Debt on a Bill penal with these words To be paid as I pay my other Creditors The Plaintiff declares generally that he was indebted to him in 5 l. solvend upon Request The Defendant demands Oyer of the Bill and it was entred in haec verba and pleads an insufficient matter upon which it was demurred And this Exception was to the declaration for variance from the Bill for per Cur. he ought to declare specially according to the Bill Judgment for the Defendant Crook El. 256. Bright and Metcalfe The Defendant demands Oyer of the Bill by which it appears the Defendant and two others are bound The Defendant demurs per Cur. pro Quer. The Defendant ought to have pleaded two others sealed the Bill Obligatory who
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
be presented so that he would resign when the Son of J. was qualified Whereupon the Defendant entred into a Bond of 1000 Marks on Condition having first recited the Agreement that if the Defendant within three Months after request should absolutely resign the said Benefice that then c. In Debt on this Bond the Defendant pleads non requisivit which was found against him And in Arrest of Judgment it was moved that this Bond was made on Simoniacal Contract and so void But the Court gave Judgment for the Plaintiff 1. Because there was no Averment of the Simony 2. That it was not material as to the Bond because that Statute doth not make the Bond or Contract void but only the Presentation The sense of the Court in that Case was that in truth if a Man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take of such person as he shall present a Bond to resign when his Son is become capable of such Living But if a Patron take a Bond absolutely to resign upon Request without any such cause as the Presentment of a Son or to avoid Pluralities or Non-Residence or such reasonable cause but only to a corrupt end to exact Mony by this Bond from the Incumbent or attempt it tho the Bond may be good against the Obligor yet it makes the Church become void and gives the Presentation to the King It seems in this Case if Simony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was Crook Trin. 8 Jac. 248 274. John and Lawrens Sir Simon Degg p. 54 55 56. Such a Condition was in Wood and Babington's Case to resign into the hands of the Bishop of London Upon Oyer of this Bond and Condition the Defendant demurred Judgment pro Querente But per Cur. If the Defendant had averred that the Obligation had been made with intent to exact Mony make a Lease c. which in it self had been Simony then it might have been a Question whether this Bond had been good or not but upon this Demurrer it doth not appear there was any Simoniacal Contract and such Bonds might be for good and lawful ends ut supra Crook Car. 180. A Condition to resign on Request which was If Jo. Watson do and shall upon the first of Octob. next or before if the said William Baker at the Parsonage-House of Cowley shall request the same and before John Watson shall take another Benefice in due manner resign the said Rectory Parsonage or Benefice of Cowley aforesaid unto the Bishop or Ordinary of the Diocess whereby the Rectory may become void and the said William Baker may lawfully present to the same then this Obligation to be void The Defendant after Oyer pleads Resignation the Plaintiff replies he did not resign Et hoc petit c. The Defendant demurs for that the Condition is void Per Cur. it hath been above a dozen times adjudged that the Condition is good Quaere if the Resignation shall be tryed per pais or by Certificate 2 Keb. 446. Siderfin p. 387. Baker and Watson M. 20 Car. 2. B. R. In Debt on Bond for payment of Mony at a day certain The Defendant pleads it was made upon a Simoniacal Contract for the Presentation to a Benefice c. per Cur. it is no Plea because it was averred by matter debors and appeared not within the Deed and an Averment shall not be that it was paid for other causes than the Obligation expresseth More n. 729. Noy p. 72. Gregory and Older The Condition was if Web the Patron presented the Defendant and if the Defendant continued Incumbent for a year and after the year at all times within three Months after Notice and Request was ready to resign and did resign the Benefice to the Ordinary to be presented thereto again by Web and should not before resign that then c. The Defendant pleads Stat. 13 14 Eliz. and that after he was inducted he made a Lease to the Plaintiff of the Benefice for 21 years and averred the Obligation was made for enjoying the Land by Lease The Plaintiff demurs Per Cur. the Plea was good but the Averment not sufficient Judgment pro Quaer More n. 835. Web and Hargrave Against Stat. 13 Eliz. c. 20. 14 Eliz. c. 11. Of Non-Residence NO Lease to be made of any Benefice or Ecclesiastical Promotion or any part thereof and not being impropriated shall endure any longer than while the Lessor shall be ordinarily resident and serving the Cure of such Benefice without absence above 80 days in any one year And all Bonds and Covenants for suffering any such Parson to enjoy any such Benefice with Cure shall be void 13 Eliz. c. 20. 14 Eliz. c. 11. either by Parson or Curate the Lease was made to the Curate who leaseth over Qu. If the absence of the Parson shall make the Lease void 1 Leon. p. 100. St. John and Petit's Case Upon the Statute 13 Eliz. of Leases made by Parsons that upon Non-Residence for 80 days the Lease shall be void this Statute voids Bonds for Non-Residence If the Condition be that after Institution and Induction he shall at all times after be ordinarily resident and serve the Cure without being absent 80 days during any one year that he shall be Parson of the said Church this is a good Condition without Averment taken to be for a Simoniacal purpose 1 Rolls Abr. 417. Cary and Yeo. The Condition was that if the Defendant be not absent 80 days from his Benefice nor resign without the assent of his Patron then c. The Defendant pleads Stat. 13 Eliz. That all Leases of Parsons made of their Benefices where they are absent 80 days ultra and all Obligations for enjoying them shall be void and saith he was absent by the space of 80 days and saith not ultra it was held an incurable fault in the Plea Cro. Eliz. p. 88. Gosnal and Kindlemarsh Such another Case in Crook Eliz. p. 490 Earl of Lincoln versus Hoskins Such a Plea was naught 1. The Statute was misrecited tam diu where the words are tam cito 2. Because it is not alledged that he was absent for otherwise neither Lease nor Bond are void Against Statutes of Usury 13 Eliz. c. 8. 21 Jac. 12 Car. 2. c. 13. How and when such Obligations become void or not and the Pleadings thereon IF the Contract be not usurious it shall not be made Usury by mater ex post facto A Bond for 60 l. and gave Bond to pay it and 6 l. Interest at the end of the year and before the end of the year the Obligor pays 6 l. for Interest it is not Usury 1 Bulstr 17. Anonymus A Condition to pay 20 l. per annum during Life it is no Usury but an absolute Bargain had there been any provision
made for Re-payment of the principal although not expressed within the Bond it had been an usurious Contract 1 Leon. 36. Crook Jac. 252. Fountain and Grimes Debt sur Bond of an 100 l. dated 12 July with a Condition for the payment of 54 l. at the end of six Months The Defendant pleads the Statute 21 Jac. of Usury The Plaintiff replies he lent the 50 l. for one year and that the Defendant should pay 8 l. for the forbearance for a year and by the Scriveners mistake it was made payable at half a years end and he being illiterate and not knowing thereof accepted the said Bond. The Defendant rejoins the Lending was only for half a year and that he was feign to pay 8 l. for it for that time and traverseth that on the said 12th of July that he should forbear it for one year The Plaintiff demurred Bar ill because he saith not corrupte agreeat And per Cur. this Allegation may well be made against the words of the Condition for it is the shewing of the true Agreement which was according to Law And the Rejoynder is not good because he makes the day thereby to be parcel of the Issue which ought not to be but he ought to have traversed the Agreement only Crook Car. 501. Jones 396. Nevison and Whitly Debt sur Bill The Plaintiff declares the Defendant 20 Apr. 1633. by his Bill became bound to him in 7 l. to be paid 21 Apr. 1634. and if default payment was he granted to pay 3 s. 4 d. for every month it should be in arrear The Defendant pleads that upon the lending of the 7 l. to be paid at the end of the year it was corrupte agreed to pay 3 s. 4 d. ut ante Had it been well pleaded it had been good for it is not averred that the Agreement was to pay 3 s. 4. d. for every Month pro lucro interesse diem dando solutionis nor doth he aver the words of the Statute that ultra 8 l. per cent shall be taken for Usury Jones p. 409. Swales and Bateman In Debt sur Bond made at S. the Defendant pleads the same was made upon a corrupt agreement at another place the Plaintiff replied that it was made bona fide and traverseth the corrupt Contract Vâ—nue was from the place where the corrupt Contract was laid to be and good and not from both places 2 Bulstr p. 34. Stanton and Barton Not from the place where the Bond was made 1 Leon. p. 148 149. Crook Eliz. 195. Kinersly and Smart The Condition if he pay for 100 l. 20 l. at half a years end if J. S. be then living and if not then but a less Sum than the Principal it is usurious he averred the 20 l. amounted to above 10 l. per Cent. for by the same reason he may add 20 Lives 2 Anders 15. 5 Co. Rep. 70. b. Clayton's Case More n. 497. Crook Eliz. p. 642. Button and Downham The Defendant pleaded quod corrupte agreeat fuit quod quer ' corrupte recepit and on Issue on them found for the Defendant in both and good for one is not material More n. 750. Johnson and Clark A. lent B. an 100 l. for a year and took an Obligation for 10 l. Interest Mony being then at 10 l. per Cent. payable 5 l. half yearly Per Cur. it is not Usury deins Stat. More n. 842. Worley's Case Noy p. 171. Cro. Jac. 25. Debt upon an Obligation of 100 l. the Case was Warnes was indebted to Alder in 100 l. upon an usurious Contract and Alder was indebted to Ellis the Plaintiff in 100 l. the just Debt for which Warnes and Alder were bound to Ellis The Defendant pleads this Usury between him and Alder to avoid the Bond. The Plaintiff replies Alder was justly indebted to him 100 l. and the Defendant and Alder became bound for this Mony and that he was not privy to the Usury between Warnes and Alder and good and the usurious Contract between Warnes and Alder shall not prejudice the Plaintiff Yelv. p. 47. More n. 981. Crook Jac. 32. Ellis and Warnes 1 Brownl 85. A Condition to save the Plaintiff harmless from one Obligation wherein the Plaintiff was bound as Surety for the Defendant to J. S. The Defendant pleads that the Bond to J. S. was upon usurious Contract and pleads the Statute sic non damnificat it is no Plea for he ought to save his Surety harmless and it shall not be intended the Surety knew of the usurious Contract Crook Eliz. 643. Button and Downhan 3 Leon. 63. Potkin's Case Contra Crook Eliz. 588. Robinson and May 2 Leon. 166. Basset and Browns Case If there be an Agreement after the Forfeiture of a Recognisance and the second Defeasance is for more than 10 l. per Cent. according to the principal Debt yet it is not deins Stat. 13 Eliz. but before the Forfeiture it had been otherwise and it is not for forbearance of the first principal but of the penalty Noy p. 2. Hollingworth and Parkhurst If a Debt be brought on an Obligation and it is found for the Plaintiff now the Defendant shall not have Audita Querela upon a Surmise that it was an usurious Contract for he might have pleaded that Noy p. 123. Cook versus Wall Or if he be condemned on nil dicit Crook Eliz. p. 25. Fisher and Banks If an Executor pay an usurious Bond other Creditors may make a Devastavit of it per Hob. p. 167. The Condition was to pay the principal Debt at the end of the year with Interest that should be then due It was a Quaere if any Interest should be paid and not resolved See there Noy's Argument of the odious Sin of Usury 2 Rolls Rep. p. 239 240. Sanderson and Warner The Defendant pleaded the Statute of Usury to a Bond and sheweth that a Ship went to fish in Newfoundland and that the Plaintiff delivered 50 l. to the Defendant to pay 60 l. on the Return of the Ship to Dartmouth and if the Ship never returned he should pay nothing it is not Usury Cro. Jac. p. 208. Sharply versus Hurrel 1 Brownl Rep. p. 52. The Defendant pleads the Statute of Usury made 6 Febr. 13 Eliz. whereas the Parliament began 2 Febr. 15 El. and that the Obligation was taken by Usury The Plaintiff replies it was not made for Usury contra formam Statuti modo forma praed and at Issue found for the Plaintiff yet a Repleader was awarded after Verdict for the Court held no Judgment could be given for the Plaintiff as well knowing there was no such Statute Cro. El. p. 245. Love versus Wotton Debt on an Obligation with a Condition of Bottomree to pay 130 l. when the Ship should return from Norwey The Defendant after Oyer pleads corrupt Agreement for lending 50 l. to pay according to the Condition The Plaintiff demurred Per Cur. it is not Usury 1 Keb. 711. Appleton versus Bryan In Debt
of the Court of Requests took the Defendant and for his Enlargement made the Obligation to appear before the Queens Councel c. per Cur. here is no Warrant to take the Body or the Obligation for that Court hath not any Power by Commission by Statute or by Common Law but the Sheriff ought to obey the Process out of the Dutchy Court for that is appointed by Act of Parliament and so this is not within the Statute for the Statute speaks of such who are in their Custody per Course of Law and so this Obligation taken by Duress is avoidable Cro. El. p. 646. Stephens and Floid mesme Case 2 Anderson 122. If a Bailiff of an Hundred which is a Franchise take Bond he must do it in the Sheriffs Name 3 Keble 71 117 127. Monday and Frogat The Bond must be taken to the Sheriff himself and not to another Plow Com. 68. a. b. The Statute doth not extend to a Bond made to the Plaintiff himself Allen p. 58. Leech and Davis The Marshal of the Kings Bench is deins this Statute 1 Keble 391. 9 Co. 98. On Oyer it was to appear on Process out of Chancery the Defendant pleads 23 H. 6. that Attachment was out of Chancery delivered to the Sheriff retorn Tres Trin. and this Obligation was for Ease and Favour the Plaintiff shews the Defendant was arrested and gave this for appearance on another Writ absque hoc that it was for Ease the Defendant demurs because the Sheriff cannot take Bond to appear on any other day than in the Writ sed per Cur. the Plea layeth a return that never was and the Plaintiff sets forth true Bond and traverseth the Ease which is as well as can be Judgment pro Quer. 2 Keble p. 526 596. Maleverer and Redshare Plaint in Court Baron of 39 s. and Attachment against the Defendants Goods and detained till the Bailiff caused 40 l. Bond to be made to the Plaintiff himself to appear and answer with and Condemnation by a day and pleaded Stat. 23 H. 6. this Bond is void at Common Law its void also for the unreasonableness of the Sum extorted 1 Keble 873. A Condition to appear in B. R. according to custom at the Suit of M. on Oyer the Defendant pleads there is no such Custom in B. R. as the Plaintiff hath alledged to appear to an ac etiam Billae and so the Obligation void the Plaintiff demurs Judgment pro quer because the Statute 23 H. 6. which is a particular Statute is not pleaded so the Plea ill but it might be pleaded the Bond was by Duress being in other manner than the Statute allows and that Statute makes the Bond void for the whole 3 Keble 160 181. Forth and Walker Debt on Obligation taken per the Plaintiff Sheriff of the Defendant his Clerk upon Condition to pay the Kings Silver into the Exchequer within 14 days after he received it the Defendant pleads Stat. 23 H. 8. and averred it was taken colore Officii upon demurrer adjudged pro quer for the Statute doth not intend such Obligation taken of them which are not to appear nor are in Custody Moor n. 685. Cartwright and Daleâ—worth The Sheriffs Bond for appearance at a day certain at which day the Party did not appear but two days after he appeared Per Cur. this appearance though after the day shall be allowed of for a good appearance and shall be a discharge of the Bond for the whole Term is but one day in Law so it is in C. B. and B. R. 2 Bulstr p. 255. Daly and Fryar Pleadings J. S. puts himself in a special Bailiff and Arrests J. D. and takes Bond c. this is by Duress and the Defendant might plead that yet it s not within the Statute nor aided by it for J. D. was never in the Sheriffs Custody after the Arrest and the Bond was taken out of the County where he was arrested and so by Duress but not deins Statute Cro. Eliz. p. 746. Brown and Adams 3 Keble 756 760. Earl of Bristol and Lord Burks Case On the Sheriffs Bond it must be averred that there is a Record in the Rejoinder as well as in the Bar 2 Keble 250 278. Knight and Pits Case If one plead appearance he must conclude prout patet per Record Cro. Eliz. fol. 466. Corbets Case Though the Defendant nor Bail have any thing in the County nor are Inhabitants in the County yet the Bond is good for the Statute doth not make void any Bonds but what are made in other manner in oppression to the People which the Statute appoints to be void and the words in other manner and form are to be intended of the matter of the Bonds as to the Sheriff and not for the sufficiency of the Sureties therefore if he take Bond with one Surety it is good enough Crook M. 43 Eliz. pl. 9. Blackburn versus Michelborne The Sheriff is Judge of the sufficiency and it is no Plea to say he took Bond of insufficient persons More n. 818. Cotton and Wade A Condition that J. S. appear in B. R. c. The Defendant on Oyer demurred because it is not taken by the Sheriff in the name of his Office Sed non allocatur the Statute being not pleaded 2 Keb. 620. Jackes and Reyner If the Sheriff take an Obligation for the appearance of J. S. before Process comes to him to arrest J. S. and after the Process comes this Obligation is good Siderfin p. 151. Anonyinus A Statute of 200 l. was acknowledged to the Defendant to J. S. and this was extended by the Plaintiff being Sheriff and that it was agreed by C. E. Brother to the Plaintiff and the Under-Sheriff before the Liberate executed that the Defendant should enter into the said Bond to the use of the Plaintiff Per Cur. this Obligation is not within Stat. 23 H. 6. for the party was not in the Ward of the Sheriff and so it was resolved in Beufages's Case Winch. 20 50. Emson and Bathurst A Bond to Neel Sheriff of Warwick and the Bond was to Neel Vic. Com. praed and Warwick was put in the Margent per Dodderidge this is not a good Bond he ought to be named Sheriff and of what County 2 Rolls Rep. fol. 365. Neelâ— and Cooper vide such a Case in 3 Keble fol. 422. Brisco and Richardson Q. If it shall be taken by Presumption in this Case the Writ being directed to the Sheriff of Cumberland and the Bond by R. and S. of Carlisle in that County Bail Bond was to appear at Westminster die Sab ' proxim ' post Purif to answer its ill 3 Keble 260 Rod and Huans The Condition was Stare mandatis Ecclesiae on Presentment for not receiving the Sacrament whereon he was excommunicated and gave this Bond for Absolution Q. if this be a good Bond for per Cur. 9 Jac. the Bishop can only take a Pledge in such Case and not Bond. 3 Keble p. 219. Bishop
Dudeney and Collier In Debt on a Bill of 40 l. to be paid at H. which is out of the Jurisdiction of the Court of Jernemutha being in the County of the City of N. which is Error the Count being upon payment generally 1 Keb. p. 378. Annison and Perkin A Condition to perform Articles one whereof was to pay Mony which the Plaintiff should disburse in composition of a Fine set on the Defendant by the Judges of Assize The Plaintiff averred he had paid 50 l. ad recept suam apud Westm and saith not in Com. Midd. The Defendant demurred the Averment was ill 2 Keb. 204 Ansly and Anslow Condition to pay Mony upon Marriage THE Condition was to pay 100 l. to the Plaintiff on his Marriage-day The Defendant pleads he had no notice given him of his Marriage-day Ill Plea for no notice need to be given 2 Bulstr 254. Selby and Wilkinson A Condition to pay 300 l. in consideration of a Marriage between the Plaintiff and his Daughter which 300 l. was to be paid within three Months after that he shall come to the age of 18 years or within 18 days of the Marriage after notice made which shall first happen Per Cur. the notice shall relate to both because it is uncertain which of them shall happen first Latch p. 158. Read and Bullington In Debt on a Bond to pay Mony upon Marriage the Jury may try Wife or not Wife but not the Legality of Marriage and it need not be alledged that the party was married at the time of the Bill The Issue here is not legitimo modo maritatus as in Dower which shall not be tryed by a Jury but in Debt on Bond it doth not draw the Right of Matrimony in question 1 Keb. 105. Tr. 13 Car. 2. Glascock and Morgan Conditions to pay Mony concerning Children or Bastards THE Condition was for the payment of Childrens Portions when they married or came to the age of 21 years The Defendant pleads that he had paid the same cum quam cito they came to their full age generally It is an ill Plea he ought to have shewed the time when they came to age and when he paid this Mony that so upon this Issue might be taken 2 Bulstr 267. Haulsey and Carpenter A Man was bound to pay to the three Daughters of a Stranger 10 l. a piece at 21 years of age The party being sick makes his Will and in performance of the Covenant for which he was bound in an Obligation devised to each of the Daughters 10 l. to be paid at 21. One sues for her Legacy and a Prohibition was granted for the intent of the Devise was he should not be twice charged More n. 368. Margery Davies Case A Condition for the payment of 120 l. at the full age of J. B. if it be demanded The Defendant pleads the Plaintiff did not demand it after the full age of J. B. Judgment for the Plaintiff for the bringing the Action is a sufficient demand Crook Jac. p. 242. Dockray and Tanning The Condition was to pay 10 s. weekly secundum ordinem fact per Justiciar c. for keeping a Bastard Child The Defendant sur Oyer pleads nullum talem ordinem fecerunt Judgment pro Quer. Otherwise if it had been secundum ordinem faciend Latch p. 125. Jermin and Randal for the one is an Estoppel to the Defendant the other is Executory Noy p. 79. vide plus sub Tit. Conditions to save harmless A Condition to pay Mony upon proof or if such a thing be proved then c. A Condition to pay within three months next after his Arrival from Rome 10 l. the Obligee proving the same by Testimonial or Witnesses the proof might be by Witnesses or Testimonial under the Seal of several Persons at Rome Moor n. 307. The Condition was If such Lands be proved to be parcel of the Mannor of Dale if then c. the Defendant pleads they were not proved to be parcel of the Mannor and demurs Per Cur. he ought to have pleaded they were parcel of the Mannor so as proof might have been made in this Action Cro. Eliz. fol. 232. Elve and Sabe Judgment pro Quer. Vide plus sub Tit. Apprentices Bonds Special Conditions for payment of Mony on Contract Agreements Contingency c. and pleadings thereon A Condition to pay 300 l. to the Plaintiff and to add 3 l. to every Hundred if it were demanded the Defendant pleads he paid the 300 l. and that he added 3 l. to every hundred secundum formam Conditionis praedict Verdict pro Quer. but Judgment pro Defendente upon Arrest because the Plaintiff ought to have alledged a Demand and this being matter of substance without which the Plaintiff had no cause of Action it was not helped by the Issue or Verdict though the words secundum formam Conditionis seem to imply a Demand Allen p. 55. Hill versus Armstrong A Condition if the Obligor pay to the Obligee 100 l. within one month after notice of his return from Constantinople into England that then c. the Defendant pleads no notice was given to him of the return c. Verdict pro Quer. Error assigned because it is not averred that the Mony was not paid and then no cause of Action but per Cur. it s no Error for when the Defendant said he had no notice this is a confession per nient dedire that he had not paid it and Issue being taken upon a collateral Matter and found for the Plaintiff he shall have Judgment Cro. El. p. 320. Griffin and Spencer The Condition was to pay 40 l. per ann quarterly so long as he was to continue Register to the Arch-deacon of C. the Defendant saith the Office was granted to A. B. and C. for their Lives and that he enjoyed the Office so long as they lived and no longer and that so long he paid the said 40 l. quarterly the Plaintiff replies The Defendant did enjoy the Office longer and had not paid the Mony the Defendant demurs per Cur. the Replication is not double for the Defendant cannot take Issue upon the non-payment of the Mony for that would be a departure from his Plea in Bar Mod. Rep. p. 227. Gaile and Bets. A Condition if they or either of them two Obligors upon request made should pay for so many Barrels of Beer as should be delivered to them so much for every Barrel as should be agreed upon between them c. the Plaintiff sets forth he had delivered so many Barrels of Bear and agreed for 10 s. per Barrel which Mony he had requested of one of the Obligors he may require payment of one or the other 3 Bulstr p. 210. Ratcliff and Clerk A Condition to pay so much per dolium breach is assigned for the Defendants non-payment of so many Tuns and three Hogsheads which per Cur. is ill the Condition being not to pay secundum ratam as in Needlers Case of
the Quire of Paper to write at the rate of so much per Quire for odd Sheets Per Hales so much per Tun must be intended amongst Traders to include pro rata for over or under measure but here the Breach is assigned in non-payment of the whole and saith not nec aliquam partem inde 3 Keble Hill 26 Car. 2 B. R. pl. 105. Ree and Barnes A Condition to pay all such Sums of Mony as my Lord Chancellor should Tax for Costs Sir Robert Rich reports he thinks 170 l. to be a fit Sum the Chancellor subscribes Let Costs be taxed according to the Report it s a good Taxation according to the Condition Harris and Pecks Case A Condition to pay the Wise 50 l. per annum on separation and for non-payment the Action is brought on Oyer it was provided the Wife should live at such a place as A. shall appoint Breach assigned that she did not live so the Plaintiff replies there was no place appointed the Defendant demurs but this being not a Condition precedent but a Defeasance there must be an appointment 3 Keble 229. Leech and Beer A Condition that G. Deputy Post-Master of Oxon for six months should pay all such Sums as he received while he continued Post-Master on Oyer the Defendant pleads performance generally the Plaintiff replies G. continued two years longer Post-Master and such a day received so much and paid not over Per Cur. no Action lay the six months being past and the continuance after must be on new agreement 3 Keb. 45 59. Lord Arlington versus Merick A Condition to pay such Sums of Mony for Tithes which should be levied and upon Oyer of the Condition the Plaintiff demurs and the question was whether these words which should be levied shall not be construed levied or to be levied and whether taxed levied or assessed be not all one and agreed by the Court that it is so A Condition if one who was receiver of his Profits should truly pay unto him omnia recepta recipienda in the said Office the Defendant pleads he had paid all which he had received Per Cur. he must give account of both 1 Bulstr 174. Hewet and Painter A Condition that the Defendant shall pay from time to time the moiety of all such Mony as he shall receive as Executor the Defendant pleads he paid the moiety of all such Sums as came to his Hands ante diem exhibitionis Billae Per Cur. it s a good Plea without shewing the particular Sums to avoid stuffing with multiplicity and this being from time to time it would be infinite but if it had been to pay the moiety of such Mony as he shall receive without saying from time to time he ought to plead specially and another difference is this Where the thing lies only in the Defendants notice as to deliver all the Mony in my Pocket there I must plead specially but here others may take notice of it and the Plaintiff may reply the Defendant received such a Sum whereof he had not paid the moiety But the Case of H. 7. If a Baker be bound to deliver over such Bread as from time to time he shall receive that in an Action against him he ought to plead how much he had received was admitted for Law Mr. Siderfin makes a Quere of this difference cave studens I conceive in the principal Case it is a distinction without a difference 2 Keble 220. Siderfin p. 19. Car. 2. B. R. pl. 18. Church versus Brownwick A Condition to pay Mony on warning A Condition for payment of 100 l. the 10th day of January next ensuing on three months warning being dated 1 July the Defendant pleads he had not warning three months before the Action brought if the warning be intended three months before any 10th day of January then it must be given by the Obligor Per Twisden the 10th day of January may be intended next after three months warning not next after the Bond. Per Windham had the Mony been payable the 10th of January next after the Bond and three months warning by the Obligee though that day pass without warning yet the Mony is not lost but three months warning may be given after to the Obligor and he is bound to pay the ascertaining the day being for his benefit payment may be made any January upon three months warning 1 Keble 380 415. Lawson and Withrington Cave Condition to pay Mony at several days A Condition to pay Mony at several days the Defendant pleads particular payments according to the Condition the Plaintiff replies He did not pay at such a day certain hoc paratus est verificare ill conclusion but it s not substance and so must be specially demurred to it ought to be de hoc ponit c. but on performance generally pleaded the Plaintiff may reply with a particular Breach hoc paratus c. and leave the Issue to the Defendant 1 Keb. 759 766. Charlton and Fine If a Man be bound in a Bond or by Contract to another to pay 100 l. at five several days he shall not have Action of Debt before the last day be past alit ' in Recognizance Covenant and Promise C. L. The Condition was If the Obligor pay 100 Marks to the Obligee during the seven years next ensuing at two Feasts by equal portions then c. the Defendant pleads he had paid 100 Marks during the said seven years at the said Feasts and demands Judgment si Actio it s a good Plea for want of the word yearly the Obligor is bound to pay but 100 Marks Benlow n. 18. durus sermo A Condition to pay 400 l. half yearly per Cur. until Judgment that a Record is made of the Bond it may be sued on any later Breach and the Defendant cannot plead any Breach before and before Plea pleaded the constant Course of the Court is to accept tender of the Mony and Charges 2 Keble p. 553 555. Stern and Vanburge Debt for non-performance of Articles which were to pay so much in certain at two days per equales portiones the Defendant saith He had paid accordingly the Plaintiff replies He had not paid accordingly the Defendant demurs generally Per Cur. the Replication is a double Plea for this goes to both days 1 Rolls Rep. 112. Sanders and Crawley A Condition to pay Mony on a voyage and Pleading TO pay Mony on the return of a Ship the Defendant pleads the Ship was lost before the return the Plaintiff replies The Ship returned such a day and that the Defendant did not pay Mony absque hoc that the Ship was lost the Defendant demurs it s an ill Traverse the not payment and return being sufficient without it its sufficient to say that the Ship returned such a day and the Plaintiff hath not paid Et hoc paratus c. 2 Keble 668. Wright and Bradcack A Condition to proceed in a Voyage and Return the dangers
is not good unless he shew the Deed and plead this and it is not sufficient to shew the Deed when the Plaintiff replies and prays Oyer because the Plea of the Defendant ought to be special if any of the Covenants are in the negative and it appears not to the Court whether the Covenants are negative or affirmative until the Deed be shewn this hath been a controverted Point in our Books and in case the Party who will plead the Deed had not this he ought to move the Court and the Court will order he shall have the Deed or a Copy of it Siderfin 1. p. 50 97. Lewis versus Ball and p. 425. Tapscot and Wooldridge If he pleads performance generally without shewing the Indenture I may demur to it 1 Siderfin p. 425. Tapscots Case In Debt on Bond for performance the Defendant cannot now pray Oyer as heretofore but must plead to the Indenture and produce it to the Court misentry of the date of the Deed upon Oyer may be amended 1 Keble 104. Anonymus The Defendant pleads it was upon Condition to perform Covenants in an Indenture hic in Curiâ— prolat and in truth the Deed was not indented the Plaintiff had Judgment 5 Rep. 20 b. Stiles Case Cro. El. 472. mesme Case The Defendant demands Oyer of the Condition ei legitur which was to perform Covenants the Plaintiff demurs generally because the Defendant saith not profert hic in Cur. the Indenture for as the Plaintiff profert hic in Cur. the Obligation on which he declares so the Defendant ought to poferre in Cur. the Indenture which he pleads for otherwise he may recite this in pleading and the Plaintiff may not have answer or remedy this is aided by the Statute 27 Eliz. being matter of form otherwise had it been upon special Demurrer the Entry upon the Roll always supposeth this to be brought into Court per the Defendant and the Court may compeâ— the Plaintiff to give a Copy to the Defendant if he swear he never had any part or that he hath lost it 1 Siderfin p. 208. 1 Sanders p. 8. 2 Keble p. 102. Jevans and Harridge A Condition to perform Covenants the Defendant pleads after the making the Bond and before the Writ the Indenture was cancelled by the Plaintiff ill Plea for the Bond might be forfeited he ought to have pleaded performance of Covenants till such a day which day the Indenture was cancelled 1 Brownl 78. Anonymus The Condition was to perform all Covenants comprised within certain Indentures bearing even date with the Obligation and in truth the Obligation and Indenture were both without date Per Cur. they ought to have averred a date of the Obligation and averred also that the Indenturs bore the same date with the Obligation Anonymus Noy p. 21. A Condition for performance of Covenants whereof some are void by Common Law yet it shall stand good for the rest otherwise where part is void by Statute Law all is void Hob. p. 14. Sir Daniel Nortons Case Cro. El. p. 529. Lee vers Coleshil A Condition for performance of Covenants though the Covenants broken be released yet the Bond remains under Forfeiture Hob. p. 168. Where an Act is to be done according to a Covenant he who pleads the performance ought to plead it specially otherwise where it is a permittance then it is as in the negative in which Case permisit is a good Plea and then it shall come on the Plaintiffs part to shew how the Defendant non permisit â— Leon. 136. Littleton and Perne If the Defendant pleads generally performance of Covenants where some in the negative and some in the affirmative and the Plaintiff doth demur generally upon it without shewing cause of Demurrer Judgment shall be given according to the truth of the Case for that default of Pleading is but matter of form and is aided by the Statute 27 Eliz. except the Plaintiff for cause sheweth some are in the negative and some in the affirmative but if any of the Covenants be in the disjunctive so as it is in the election of the Covenantor to do the one or other then it ought to be specially pleaded and the performance of it for otherwise the Court cannot know what part hath been performed 1 Leon. 311. Oglet horp and Hide A Condition was for the performance of Covenants within a certain Indenture whereof some of the Covenants were in the affirmative and some in the negative he pleaded the Indenture and performance of the all Covenants therein generally and it was thereupon demurred and without argument adjudged for the Plaintiff Cro. El. p. â—91 Cropwel and Peachy In Debt sur Bond conditioned to perform Covenants of Under-sheriffs Bailiff part in the negative and part in the affirmative the Defendant as to those in the negative pleaded negatively and as to those in the affirmative that he had observed them to which the Plaintiff replieth that the Defendant was not assisting at the Arrest of J. S. to which the Defendant demurred Per Cur. the Plea is ill without shewing how he had performed them and yet the Replication is good to shew a cause of Action for the naughty Plea was a trap that the Plaintiff should have demurred to and so no cause of Action would appear Judgment pro Quer. nisi c. 2 Keble 405. Clâ—vel versus Galler By the course of the Court upon Bonds of vast Sums to perform Articles or Covenants in Debt for non-performance may be common Bail or according to the value of the Breach assigned at the discretion of the Judges 1 Keble 124. Siderfin 63. Boothbyes Case A Condition to perform Covenants and Agreements one was that the Plaintiff had covenanted with the Defendant that it should be lawful for the Defendant to cut down Wood for Fire-boot and Hedge-boot without making waste or cutting more than necessary the Plaintiff assigns a Breach in that Covenant which is in truth the Plaintiffs Covenant exception was That the Condition ought but to extend unto Covenants to be performed on the part of the Lessee non allocatur it is the agreement of the Lessee though its the Covenant of the Lessor 1 Leon. 324. Stevensons Case A Condition for performance of Covenants one is against the Statute of buying Offices the other is a good Covenant and not concerning that the Obligation is void in all but for the good Covenant Action of Covenant will lie Cro. El. 529. Lee and Coleshil Q. Debt on Bond to perform Articles the Plaintiff Covenants to assign over his Trade to the Defendant and that he should not take away any of his Customers and in consideration of performance thereof the Defendant covenants to pay the Plaintiff 60 l. per annum for Life and pleads that after the agreement the Plaintiff before any thing done did work to J. S. a Customer the Plaintiff demurs Judgment pro Quer. this is not a Condition precedent but these are mutual Covenants the Plaintiff need
that he cannot do sans Licence Moor n. 294. Crocock and White An Action is brought against the Heir of Edmund A. the Condition Whereas the said Ed. A. such a day hath granted and given to the Plaintiff the Presentation to the Church of D. if therefore the said Ed. A. from time to time shall make good the said Grant from all Incumbrances made or to be made by him and his Heirs that then c. the Grantor died the Church became void the Heir of the Grantor presented this tortious Presentation is no Breach but this extends only to lawful disturbance by the Heir for it appears by the pleading the Heir had no right to present his Father having granted that before Per Hobert the words shall be construed as if it had been said that he shall enjoy the same from any Act or Acts made by him or his Heirs and in this Case there ought to be a lawful Eviction to make a breach of the Condition but otherwise if the Condition had been that he shall peaceably enjoy from any Act or Acts made by him or his Heirs for in this Case a tortious disturbance would have been a Breach of the Condition Winch p. 25. Dr. Hunt versus Allen. The Condition was That he should enjoy such Lands sans Eviction the Breach was assigned in the Recovery by Verdict in Ejectione Firmae upon a Lease made by one Essex and doth not shew what Title Essex had to make the Lease but avers that Essex had good Title and it might be he had Title derived from the Plaintiff himself after the Obligation made and therefore he ought to shew that he had good and eigne Title before the Lease made and in the Exchequer-Chamber the Replication held ill Cro. Jac. p. 315. Kirby versus Hansaker 2 Sanders Hele and Wotton though this was after a Verdict 2 Sanders 177 178. Id. The Condition was If the Obligee peaceably enjoy an Acre of Copyhold Land according to the Custom of the Mannor the Defendant pleads by Custom of the Mannor the Obligee ought to pay to the Lord a Rent and for non-payment the Lord to re-enter and that the Obligee did not pay it and the Lord entred and demanded Judgment si Actio bon Plea Benl p. 32. The Condition was to enjoy peaceably against M. Breach assigned that M. had entred and cut down five Elms upon Evidence it was A. Servant of M. by commandment and in the presence of his Master had entred and cut and good 1 Leon. 157. Seaman and Browning Debt on Obligation for performance of Covenants Breach assigned was the Defendant Lessor covenanted that it should be lawful for the Plaintiff being Lessee quietly to enjoy the Land and that the Lessor himself ousted him this illegal ouster was a Breach of the Covenant Cro. El. 543. Corus Case The Condition is If such Lands be discharged of all Incumbrances made by him except the Estate and Title of Jointure of his Wife Elizabeth that then the Breach is assigned that the Defendant before the Obligation made had surrendred these Lands to the use of Elizabeth his Wife it s no Breach vide Cro. El. p. 761. Woodward vers Dannock In Debt on Bond against Baron and Feme being made in her Widowhood with Condition that she her Heirs or Assigns keep Contracts and Covenants made between former Husband and his Lessee the Plaintiff and there was an Agreement that the Plaintiff should enjoy a Warren of the Demise of the former Husband and that he entred till put out by the Defendant Issue on the Agreement found pro Quer. Jones moved there was no Estate alledged in the former Husband in jure Uxoris whereby though the second Husband be assigned in Law yet he enters of his own wrong and not as claiming under her but per Windham it s not requisite that the Husband be Assignee of the Estate but her Assignee of Contract 1 Keble 348 512. Hall versus Creswel and his Wife Judgment pro Quer. A Covenant to save harmless from lawful Eviction the Defendant pleads performance the Plaintiff replies That J. S. took out a Writ of Hab. fac poss in B. I. debito modo exeunt ' and by vertue thereof entred and expelled him per Cur. debito modo is not sufficient without shewing particulars he ought at least to recite the Term of the Judgment but not the Title of him that evicted 1 Keble 379. Nicholas and Pullâ—n The Condition was That the Obligor should not enter nor claim a certain House the Defendant said he did not enter nor claim the Plaintiff replies he claimed no Plea he should say he came to the Land and claimed the Land and entred into the Land and nothing shall be traversed but the Claim 4 H. 7.13 not the Entry A Condition to discharge a Mesuage of all Incumbrances there one may plead generally that he did discharge it of all Incumbrances but if it be to discharge it of such a Lease he must shew how 1 Brownl 63. The Condition was That he shall suffer his Lessee for years to enjoy c. and that without the trouble of him or any other Person a Stranger enters per eigne Title the Condition is not broken for this word suffer is a passive and all the rest is to be referred to this but if any procurement or occasion of disturbance be by the Lessor his Executors or Assigns then he forfeits the Obligation 2 Ed. 4.2 b. 1 Rolls Abr. 425. Q. 1. A Man is bound to warrant Lands by Obligation in Action de Det port pacifice gavisus est is no Plea for it s but an Argument that he had warranted and it s but a fallible Argument for the Party may enjoy peaceably without having Warranty Dyer 42. b. 43. a. 2 Co. fol. 3. A Condition peaceably to enjoy from the 1st of Febr. usque Michaelmas-day Tithes paying half yearly during the Term and on default of payment the Defendant Lessor to be free from all Obligation to the Plaintiff he replies he assigned a Breach in non-payment of Rent at Michaelmas which is after the Term ended and so the Defendant demurs Also the substance of the Suit is quiet Enjoyment and therefore ought not to be taken by protestation sed per Cur. enjoyment need not be answered where it s defeasanced by payment of the Rent yet Judgment pro Def. 3 Keb. 594. Biggin and Bridge A Condition that he shall suffer his Lessee for years to enjoy his Lands during the Term and that without trouble of him or any other Person a Stranger enters per eigne Title per Cur. the Condition is not broken for that this word suffer is a passive and all the residue is to be referred to this but if any procurement or occasion of disturbance by the Lessor his Executors or Assigns then he hath forfeited the Obligation a Man is bound to permit Land to descend to his Son he need not aver that this had descended to him
forfeited the Bond is so too upon Non-performance but being general to perform all Covenants and Conditions it binds only to such as are compulsory 3 Keb. 454 460. Toomes and Chandler On Covenant for Reparations THE Plaintiff assigns the Breach in one Covenant whereas the Plaintiff had leased Houses c. the Defendant did covenant to repair all the said Houses alia quam quae appunctuat forâ—t divelli pro Quâ—r and shewed that the Defendant had not repaired the Messuages to him demised and averred that the House in which the Breach of Covenant is assigned non fuit appunctuat divelli Per Cur. this Averment was superfluous for if the House in not repairing of which the Breach is assigned was appointed to be pulled down the same shall come in on the Defendants part to whose benefit it trencheth for such appointment doth discharge the Covenant as to that 1 Leon. fo 17. Sir John Smith's Case The Plaintiff assigned a Breach in Non-reparation The Defendant pleads the Plaintiff had acquiâ—d and discharged him of all Reparations The Plaintiff demured Per Cur. this is an acquittance and discharge of the Reparations for the time past as well as the time to come and amounts to as much as if he had released that Covenant but the Covenant being broken that discharge shall not take away the Action on the Obligation which was once forfeited 3 Leon. p. 69. Anonymus A Condition to perform Covenants in a Lease which recites a Lease of a Brew-house and a Mill in occupation of F. with Covenant to repair all the Premises The Defendant pleads general performance as to the Brewhouse and as to the Mill the Tenant did not attorn The Plaintiff demurred per Cur. this is no excuse though there be no Remedy for the Rent till Attornment yet it was the Defendants fault he did not take a Covenant that the Under tenant should attorn 1 â—eb 879. Lewin and Forth A Bond conditioned to deliver up an House repaired at the end of the Term. The Defendant pleads the Plaintiff agreed he should hold it for a longer time it is a good Plea though a Covenant is not discharged without a Deed wâ— it is to do any collateral Act 2. Keb. 99. Mâ— and Rainsborough A Condition to repair and sustain two Mâ—ssâ—ages at all times The Defendant pleads he had performed the Condition in all except as to one Kitchen which at the time of the Demise was so ruinous that he could not repair it but he pulled it down and rebuilt another c. this had been a good Plea in Action of Wast not here where he hath by his own Act tyed himself to a disadvantage 2 Leon. 189. Wood and Avery Pleadings on Bonds of Covenants Variance DEbt on Bond of Covenants After Verdict it was moved in Arrest of Judgment that the Defendants Plea was that praedictus Ed. did covenant that R. was seised whereas the Defendants name was Robert that did covenant this misrecital is not material because here is a good affirmative and the Bond if this be misrecited is single Contra if it had been an Action of Covenant or when the Indenture by prayer of the Defendant is entred in haeâ— verba 1 Keb. 126. Siderfin p. 49. Pegg and Waâ—ere Variance between the Indenture and the Declaration shall not stay Judgment after a Verdict Siderfin p. 49. Pegg and Waters The Covenant was that he will assure convey and assign a Lease The Defendant pleads performance The Plaintiff assigned the Breach quod non assuravit conveiavit transposuit Anglice set over and the Defendant pleaded quod assuravit conveiavit assignâ—t Anglice set over and the word transposuit is not in the Covenant nor in the pleading of the performance thereof It is Issue misjoyned 2 Leon. p. 116. n. 155. Grayâ— and Constable In a Debt on a Bond of performance J. and A. were named in the Bond but the Indentures as pleaded were only betwixt J. of the one part and the Defendant of the other but were re vera betwixt J. and A. on the one part and the Defendant on the other Per Cur. it is a variance and Judgment pro. Quer. 1 Keb. 127 167. Pavie and Hall Where Covenants are special they must be specially answered unto and particularly 2 Keb. 54. Herrick and Sanderson Against a negative or disjunctive Condition the Defendant must plead specially Debt on a Bond for performance of Covenants the Defendant sets forth the Covenants by a Testatum existit its ill this in a Plea in Bar or Debt on the Indenture is naught aliter in Covenant 2 Keble 54 79. Anslows Case Debt on Obligation conditioned for performance of Covenants in quadam Indentura bie in Curia prolat ' and in truth the Deed was not indented adjudged pro Quer. Cro. El. 472. Frampton and Stiles 5 Rep. 20. b. In Barnstaple Debt on Obligation to perform Articles the Defendant pleads performance this Bar is ill not setting forth the Indenture below The Plaintiff alledges non-payment to J. S. secundum formam Articulorum Per Cur. the general Replication is well enough without setting forth the Indenture but the Plaintiff by alledging the Breach hath waved the ill Bar 3 Keb. 605. Lâ— and Pigsly In Debt on Bond conditioned for performance of Covenants in an Indenture the Defendant pleads peformance generally this is not good unless he shew the Deed and plead this And it is not sufficient to shew the Deed when the Plaintiff replies and prays Oyer because the Plea of the Defendant ought to be special if any of the Covenants are in the negative and it doth not appear to the Court whether the Covenants are negative or affirmative until the Deed be shewed if the Party who will plead the Deed had it not he ought to move the Court for to have the Deed or a Copy Siderfin p. 50 97. Lewes and Ball. Vide plus postea Tit. Oyer The Defendant pleads there are no Covenants Per Cur. this being general of all is well cont if it were to perform any certain Covenant but the Party is estopt to say there is no Indenture 1 Keble 381. Brazier and Acton Mod. Rep. in Holloways Case yet 2 Keble 564. Smith and Yeoâ—ans cont but that was because of the shifting way of pleading The Condition was Whereas J. S. claimed to have a Lease for years of D. granted to him by W. if the said Defendant keep without damage the Plaintiff from all claims c. the Defendant pleads the said J. S. had not any such Lease per Cur. he is estopt to say so by the recital A Condition to perform Covenants The Defendant pleads the Indenture of W. S. and A. his Wife whereas in truth his Wife never sealed it the Plaintiff replies The Indenture shewn by the Defendant non fuit fait inter W. S. and Ann his Wife of the one part and the Plaintiff on the other and Issue the Jury found the Husband only sealed Per Cur.
had been single 1 Leon. p. 282. The Lord Darcy and Sharps Case A Condition to perform Covenants one was To give an account just and true being a Brewers Clark the Defendant pleads performance the Plaintiff replies by receipt of 30 l. The Defendant rejoins that it was stollen out of the Plaintiffs Counting-house the Plaintiff demurred the Robbery is a good â—ar but the Plaintiff per Cur. discontinued because a Rule for Trial of the Robbery was disobeyed 2 Keble 761 779 830. Vere and Smith A Condition to perform Covenants one was not to take a new Lease without assent of the Plaintiff the Defendant pleads he took no new Lease contra fâ— Indentur The Plaintiff replies he did take a new Lease but saith not without assent of the Plaintiff the Defendant demurs per Cur. the Replication is good for the Plaintiff is misled by the Defendant and the Issue is good enough 3 Keble 524. Perry and Wâ—itby A Condition to perform things for which he was bound in a Recognizance the Defendant pleads specially that he acknowledged a thing in nature of a Recognizance but upon special matter it appeared to the Court it was not any Recogniâ—ance male for it amounts to the general Issue 1 Rolls Rep. 83. Fletcher and Farrer A Condition to pay unto the Plaintiff all such Legacies which he had given to him when he should come of his full Age c. The Defendant pleads he paid omnia talia Legata qualia ad tale tempus generally without shewing the particulars and time when and so the Plea not good 1 Bulst p. 43. Stone and Bliss To do or permit other Acts to save harmless A Condition for saving the Plaintiff harmless from all Legacies and shews for Breach there was a Suit commenced against him in Chancery for a Legacy Per Cur. this Declaration is not good because he doth not shew such a Legacy was devised or that he was chargable with it 2. Because he doth not shew any place where Chancery was in all Cases where a Man pleads any thing out of Chancery or any thing to be done in Chancery he ought in pleading to shew the same certainly and to say in Caâ— apud Westen otherwise upon Issue no Venue can arise 2. Bulâ— 19. Dowty and Fawn Yelv. 226. id Caâ— â— Brownl 117. id Case vid. 1 Rolls Abr. 430. A Condition if he save harmless and indempnifie the Plaintiff and his Lands in Sale from an annual Rent of such a Lease during the said Term the Defendant pleads quod a tempore confection script obligation hucusque exoneravit indempnem conservavit the Plaintiff and all his said Lands from the said Rent Et hoc c. Plaintiff demurs he ought to shew quomodo exoneravit it being a Plea in the affirmative had he pleaded non dampnificavit it had been good Cro. Jac. 634. Horseman and Obbins Winch. To save harmless from Incumbrances vide antea A Condition to save harmless from such a Bayl in such an Action the Defendant pleads quod libere absolute exoneravit c. and shews not how he had discharged him and therefore ill aliter if he had pleaded non dampnificatus Cro. Jac. p. 363. Codner and Dalby 2 Bulst 270. A Condition to save the Plaintiff harmless against J. Roberts of one Obligation the Defendant pleads non dampnificatus the Plaintiff replies that J. R. had sued him to the Exigent and then he appeared and R. had Judgment against him issint dampnificat the Defendant rejoins that he had retained Attorn pro Plaintiff and the Plaintiff was at no Expences nor was arrested nor Lands or Goods seised and that after Judgment he was not dampnified the Plaintiff demurs Cur. pro Quer. for immediately upon the Judgment given he was dampnified for all are liable to execution and if the Defendant after Judgment had paid the Debt it would not serve for he was dampnified before Cro. El. p. 264. Bush and Ridgely Act. port by High-Sheriff versus Under-Sheriff The Defendant pleaded he saved him harmless the Plaintiff demurs male Pleâ— for he may save him harmless in many things and yet the Plaintiff may be dampnified in some other he ought to have pleaded non dampnificatus Stiles p. 23. Car. 1. fol. 16. Wroth and Elsey that he saved harmless and shews not how Cro. Jac. 165. Alingtons Case The Defendant pleads non dampnificatus the Plaintiff replies and shews a Breach on the Defendants part wherein he was dampnified the Defendant demurs because the Breach was assigned to be at Westminster and doth not shew in what County Westminster is and good Stilâ— p. 142. M. 24 Car. B. R. Nelson versus Tompson A Bailiff conditions to save the Under-Sheriff harmless in executing Process c. and assigns a Breach that the Bailiff had not executed his Warrant upon Process directed out of the Exchequer to levy Issues on Lands in the Mannor of A. but he doth alledge that the Mannor is within the Hundred where he is Bailiff quod aportuit and a good exception for a Bailiff cannot execute a Precept out of his Hundred Stilâ—s p. 18. Pasch 13. Car. 2. Stoughton and Day Allen p. 10. id Case The Condition of a Bond to save the Obligee harmless concerning his buying of certain Goods at such a price extends not to the Price but to the Title Allen p. 95. A Condition to save the Plaintiff and Inhabitants of N. harmless from all Charges that may happen by placing A. in a Cottage the Defendant pleads non dampnificatus the Plaintiff replies they were forced to provide Necessaries by reason of a Rate set on the Inhabitants by Justices and Overseers good without shewing any particular Inhabitant was charged the possibility that they may be charged by the Rule is a sufficient dampnification 1 Keble 392. Tavernor and Quatorman A Condition to save harmless from all Damage that may happen by non-payment of Legends being Executor of J. S. the Plaintiff alledgeth damage in Suit by Legatee in Chancery the Defendant demurs Judgment pro Quer. 1 Keb. Hill 14 15 Car. 2. p. 464. Gibs and Tailor A Condition to save harmless of being Bail for an appearance the Defendant pleads non damnificat on Oyer the Plaintiff replies the Defendant did not appear per quod the Sheriff did prosecute him per dubitum logis cursum here being a Suit alledged is a sufficient Breach per Twisden Q. 2 Keble fol. 625. Pas 22 Car. 2. Baker and Porter A Condition was to save the Plaintiff harmless from all Actions and Damages that might arise upon the release of the Defendant out of Execution being then in execution at the Plaintiffs Suit from all Persons that might trouble him concerning the said Release the Case was The Plaintiff sued N. in the Court at Y. for 100 l. the Defendant and one H. became Bail the Plaintiff had Judgment against N. and also the Bail the Defendant was thereupon taken in Execution but before the Defendant was
chargeable the Plaintiff demurs here need not be alledged any special damage but the saying he could not attend his Business is sufficient Judgment pro Quâ—r 3 Keble p. 336. Tâ—â—â— 26 Car. 2 B. R. Young and White A Condition to acquit discharge or otherwise save harmless of 12 Bonds entred into by the Plaintiff with the Defendant and of all Suits and Troubles which may happen thereupon after Oyer the Defendant pleads performance the Plaintiff replied he was sued and forced to retain an Attorny and that the Defendant licet sâ—â—pius requisitus had not acquitted him the Defendant demurs because the Plaintiff had not alledged pâ—â—ticular notice to him of the Suit Per Cur. he is not bound to give special notice Siderfin p. 442. H. 21 Car. 2. King and Atkins An Obligation made by J. S. ad majorem rei securitatem inveni J. D. fidejussorem and J. D. put his Seal to it this was his Deed Cro. P. 29. Eliz. B. R. Skidmore versus Van Stevan One is bound with another as his Surety jointly and severally they are both principals and neither Pledge nor Fidejussor for the other and one cannot have the Writ de plegiis atquietandis against the other for this lies not but where one is named expresly as Surety in the Bond Hob. 53. in Foster and Jacksons Case Dyer 370. B. was bound with K. for the payment of 200 l. to A. B. The Condition was If K. shall save harmless B. of all Suits Quarrels and Demands touching and concerning the said Bond of 200 l. then c. B. came to the place of payment at the day and perceiving no Person there present to pay the 100 l. for K. he to save the penalty of his Bond paid the 100 l. to A. B. and so brought this Action upon the Counter-bond and upon non damnificatus pleaded the Plaintiff replied and shewed all the special matter the Defendant demurred adjudged pro Quer. for it was harm to him and it s not needful for the Plaintiff to be arrested or sued And this Plea of non damnificatus implied that the Defendant had saved him harmless as by Release payment or otherwise Terror of Suit so that he dares not go about his Business is damnification though he be not arrested by Process 5 Rep. 24. Broughtons Case Capiaâ— issued out against a Surety is a damnification 2 Bulst 105. Reve versus Harris The Custom of London is if many are bound as Sureties if the principal fall of payment and one of the Sureties be sued upon the Obligation he may have a Writ de Contributione facienda against the other Sureties such a Writ was brought in London and removed in B. R. but it was remanded Moor n. 266 2 Leon. p. 166 67. Offly and Johnson The Book of Entries 160. One Surety may pay the Mony and have the Bond decreed to him in Chancery to make his advantage Latch 170. Dawson's Case The Surety cannot plead that the principal was kept in Duresse till he and the Defendant entred into the Bond though the principal might plead it for none shall avoid his own bond for the imprisonment or danger of any other than himself only Crook M. 5 Jac. fo 187. Huscomb and Standing 1 Brownl p. 64. Martel and Cobbâ— The Defendant in a Counterbond pleads that the Bond to J.S. wherein the Plaintiff was bound with him as Surety was upon usurious Contract and pleads the Statute isslâ— non damnificatuâ— no Plea for he ought to save his Surety harmless and it shall not be intended that the Surety knew of the usurious Contract Crook Eliz. p. 588. Robinson and May p. 643. Boulton and Downham Noy p. 73. 3. Leon. 63. Potkin's Case 2 Leon. 166. Basset and Pâ—oâ— The Stature saith All Bonds and collateral Assurancos made for the Payment of Mony lent upon Usury shall be interly void Counter-Bond here was not for the payment of the Mony lent but for the Indemnity of the Surety A Condition to save harmless in a Counter-Bond The Defendant paid not the Mony at the day this is a present Forfeiture of the Counter-Bond for he hath put the Plaintiff in danger of being arrested and it is a present damage 3 Bulstr p. 233. Abhors and Johnson 10 E. 4.27 28. The Defendant pleads he had saved the Plaintiff harmless The Plaintiff replied that the Mony was not paid and Process went out against him The Plaintiff rejoyns he had not any notice of the Damnification No good Rejoynder 1. The Defendant himself ought to take notice of the Act of a Stranger 2. It is a departure from the Bar 1. Sanders 117. Cutler and Southern Vid. the Pleadings If a Man be bound to preserve his Surety sans damage of an Obligation if he suffer the Obligation to be forfeited yet this is not any Damnification and by this the Counter-Bond is not forfeited cited in Freeman and Sheens Case 1 Rolls Rep. p. 7. Qu. de ceo The Defendant pleads that J. S. the Creditor sued the Plaintiff on the Bond and had Judgment but before Execution he delivered the Mony to the Plaintiff to satisfie it no Plea for by the Judgment the party is damnified and the Costs are not paid Crook Eliz. p. 396. Bothwright and Harvy 1 Rolls Abr. 432. Id. Case The Defendant pleads that at the day of payment he was going ad solvend and that the Plaintiff by Covin betwixt him and another Stranger caused the Defendant to be imprisoned until after Sun-set it is an ill Surmise and no Baâ— Crook Eliz. 6 2. Morris and Lutterâ— The Plaintiff declares that at the Request of the Defendant he became bound with a third person to pay Mony to J.S. at a day and the Defendant became bound to the Plaintiff with Condition that if the Defendant did pay the Mony to J. S. at the day for which the Plaintiff was bound and in the mean time should save him harmless then c. The Defendant pleads be caused the party with whom the Plaintiff was bound to submit himself to prison and that the Plaintiff was not damnifieth The Plaintiff denies not the Bar but says that a Latitat was sued out against him and so feared The Defendant demurs the Plea is ill and the other hath alledged an ill Breach he saith not he took a Lat. prout patet per Record the words in the mean time refer to the last words of the Condition Judgment pro Def. Stiles p. 356. Young and Petit. Mony prayed out of the Coroners hands by one who had paid the Debt as Surety 2 Keb. 400. Foster and Closon A Condition whereas the Plaintiff was obliged in such Obligations for the Defendant that if 〈◊〉 were charged or molested in his Body or Goods for those Obligations he would within a Month satisfie him for it The Defendant saith he hath paid him such a Sum for all his Charges within a Month no Plea for he ought to shew how the Plaintiff was molested and then he
had been delivery to both 2 The two Bargaâ—es need not give notice to the Defendant that they had the Reversion by Bargain and Sale for being the condition of a Bond it is at his Peril to take notice being obliged to deliver it to him or his Assigns Cro. Jac. p. 475. Hingen and Pain Bridgman Rep. 128. The Condition was that the Defendant should not deliver Possession to any but the Lessor or such persons as should lawfully recover The Defendant pleads he did not deliver but to such persons as lawfully recovered it Good Plea he need not shew he delivered to J. S. by lawful Title 1 Keb. 380 413. Nicholas and Pullen Conditions concerning Wives COndition not to sell the Apparel of his Wife it s a good condition If a man bind himself to a stranger to pay 20 l. per Annum to his Wife this is good 1 Rol. Rep. 334. Smith and Watson The Condition was to permit his Wife to make a Will and dispose such Legacies the Defendant pleads she made no Will it was found she made a Will but that she was Covert c. Per Cur. This is a good Will within the intent of the Condition and it is but her appointment which the Husband by his Obligation is bound to perform Cro. Car. 219. Marriot and Kinâ—an The Condition was to permit his Wife to make a Will and to dispose of one hundred pounds of her Husbands Goods 〈◊〉 paid within one year after her decease The Defendant pleads â—e permitted his Wife to make a Will the Plaintiff demurs Per Cur. he ought to have pleaded that he had paid accordingly otherwise he doth but answer to one part of the Condition Cro. Car. 597. Sherman and Lally The Condition was if he should survive A. S. his Wife that if within three Months after her decease there were paid to the Obligee 300 l. to and for such uses and purposes as the said A. S. by any Writing under her Hand and Seal subscribed c. should nominate and appoint that then c. The Defendant pleads she did not limit c. any use for the imployment of that mony The Plaintiff replies she by her Will in Writing c. did appoint such Sums to be paid The Defendant demurs because she ought to have made a Deed in Writing and not a Will But Per Cur. this Declaration was good and though the pleading was that A. S. Voluit devisavit and not that it was appointed by her yet Per Cur. well enough for it is not properly a Will that is made by a feme Covert but a Writing in nature of a Will Cro. Car. 376. Tille and Petre. Authority was given to the Wife to â—lso 300 l. and she disposeth 200 l. by fifties and well Condition to make a Will in the presence of her Husband or if he refuses it such person as her Husband should appoint Qu. If refusal ought to be alledged or notice to the Husband 1 Keb. 347. Harris versus Beffie To procure a Marriage between the Plaintiff and B. P. such a day or before The Defendant pleads the Plaintiff before that day called B. P. Whore and used other base Language by reason whereof the Defendant could not procure the Marriage no Plea for he hath not shewed his endeavour to procure the said Marriage and notwithstanding such words they might have inter-married Cro. El. p. 694. Blandford and Andrews A Condition to pay such a Sum as E. B. should appoint after Marriage with the Defendant by her last Will or other Writing signed in tiel form the Defendant saith she made no Will nor any other Writing c. the Plaintiff sets an appointment in Writing forth the Defendant saith it was after revoked this is no departure because its a fortification of the Bar and could not be foreseen and its revocable contrary to Hobert Ormonds Case 1 Keble p. 821. Shepard and Spencer A Condition not to meddle with the Goods of the Feme which were her first Husbands but that she and her Children might enjoy them sans disturbance claim or interruption of the Defendant Breach assigned that the Defendant took and detained the Goods of the first Husband and Issue pro Quer. and the Breach well assigned Cro. Car. p. 204. Crawle and Dawson A Condition to pay so much yearly to his Wife it good as well as to give her a Gown 27 H. 8.27 Condition to accept a Lease A Condition If the Obligor accepted a Lease by Indenture of such Lands upon the Plaintiffs request and sealed a Counter-part thereof then c. The Defendant pleads the Plaintiff did not request him to accept a Lease the Plaintiff replies he had caused an Indenture to be drawn and ingrost according to the said Condition and a Label affixed cum sera appensa and required and offered it to the Defendant to accept thereof and he refused Issue upon the request found pro Quer. Error 1. Sera is not Wax sed non allocatur 2. Because he avers not the Lands mentioned in the Indenture are the same in the Condition but because he pleads non requisivit and he replied it was secundum formam Conditionis it shall be intended the same Lands and if they were other Lands the Defendant ought to shew it Cro. Car. 560. Lee versus Russel Condition to appear at a Place THE Condition was That S. and his Wife should appear at the Marshals Court S. appears and pleads that at the time of the Obligation he was solus innuptus Judgment pro Quer. sur demurer Stiles p. 17. Pain and Skelton To appear within eight days after warning warning ought to be shewn to be given of the Action brought Cro. Jac. 46. Yelv. p. 52. Hargrave and Rogers In Debt on an Obligation to appear at a certain day Imprisonment is no Plea 2 Rolls Rep. 136. Anonymus In a Recognizance to appear c. Imprisonment by Commissioners of the Adâ—ralty is an excuse Moor n. 251. Lacies Case A Condition to come to the Kings Head c. on the 12th of October and there elect two Arbitrators who with two others to be elected by the Plaintiff should arbitrate of all Sums c. the Defendant pleads on the 12th of October he came to the Kings Head c. and there elected two Arbitrators but the Plaintiff was not there Plea not good because he shewed not at what hour of the day he came nor how long time he continued there for he ought to be there so long time before the last instant as the Arbitrament may be made neither doth he shew that his two Arbitrators were there present Cro. Eliz. 549. Edmonds versus Marks The Under-Sheriff took a Man by Attachment out of Chancery who took Bond of him to appear at the day contained in the Attachment Per Cur. the Bond is void for that the Defendant was not bailable upon the Attachment 3 Leon. 208. Bland and Riccards Debt upon an Obligation taken in the Kings Name in
Petty-Bag Office the Court of B. R. upon motion would not alter the Plea for if the Issue be joyned in the Petty-Bag you must try it Stiles p. 412. Turner and Trapes A Verdict on a Scire Fac. on a Recognisance in Chancery and Judgment pro Grimston Grimston brought a Latitat in the Kings Bench on the Recognisance The Defendant put in Bail and prayed to be discharged on common Bail because there being a Verdict on Scire Fac. no Latitat can be sued Per Hales no Latitat can be sued hanging the Scire Fac. for a Scire Fac. is an Action and may be so pleaded to the Debt to be depending But after Judgment entred Debt lieth thereon or upon the Recognisance alone and the Rule for special Bail was discharged 3 Keb. 221 229. Grimston and Wade Vid. Lit. Rep. p. 89 90. That a Scire Fac. is not an Action but an Execution Arguendo in Melvin and Reeves Case If a Man be bound in a Recognisance to pay 100 l. at five several days presently after the first day of payment he shall have Execution upon the Recognisance for that Sum and shall not tarry till the last be past for that it is in the Nature of several Judgments Co. Lit. fo 292. b. Aliter of a Bond. Meer Recognisances are not sealed but enrolled they must be In a Recognisance in Chancery the Process is Scire Fac. and this being returned with a Nihil another Scire Fac. which being so returned also he shall have a Judgment and may have a Levar but no Capias 8 Rep. 141. The Transcript of a Recognisance in Chancery came into the B. R. and was not allowed there to have a Scire Fac. on it 5 Eliz. Dyer 217. So in C. B. the Goods only which he had at the time of the Execution awarded will be subject to Execution Upon a Recognisance in Chancery Execution shall be of the Moiety of the Lands The Execution by this is by Scire Fac. Bail Recognizance The Nature of it THE Recognisance is conditional that is to say to render his Body to Prison if he were condemned or to pay the Condemnation Jones 138. The end of the Bail is not only to bring the Body but that he come subject to the Court according to the meaning of the Bail and there-Bail cannot render the Body of the Defendant after Writ of Error brought by him Qu. for the Entry in the discharge of the Bail must be that the Defendant reddidit se to the Court to be in Execution if the Plaintiff will which cannot be so in that Case Hob. p. 116. Wicksteads Case The Bail in the Common Bench is always in a Sum certain according to the debt or damages in the Writ but in the Kings Bench there is not any Sum mentioned but to pay whatever the Principal shall lose 1 Keb. 18. Cro. Jac. 645. Sir John Apesley's Case The Words of the Bail are conditional scilicet si contingeret praedictum Defendentem debita damna ill praefat Querenti minime solvere aut se prisonae non reddere c. 5 Rep. Hoe and Marshals Case 70. b. Special Bail by Recognisance was as the manner is that F. B. concesserunt uterque eorum concessit that the said debt and damages shall be levied upon them if the Defendant do not pay aut se prisonae Marr. doth not render Siderfin p. 339. Gee's Case The Recognisance in the disjunctive to render the Body to Prison or to pay c. By death the one becomes impossible and so shall excuse the other Jones p. 29. Winch p. 61. Sparrow and Sowgate Recognisance to have the Plaintiff in Chancery ad standum juri in hac parte and that the Plaintiff shall prosecute with Effect though he doth not shew the Plaintiff did not appear in Chancery at the day for the Condition here is parcel of the Recognisance which is one of the Conditions for the words in the beginning include all as well the Course of the Prosecution as the Effect of the Suit Yelv. p. 59. Cro. Jac. 69. Barnes and Worlych Form del Mainprise en Det Vid. Rast Entr. 177. b. Process Scire Fac. AFter Judgment a Cap. is awarded against the Defendant and upon a Non est inventus returned they awarded a Scire Fac. against the Bail Capias must be delivered to the Sheriff before a Testatum 2 Keb. 424. Robinson's Case A Latitat is taken against two one is taken and puts in Bail in Michaelmas Term and afterwards the other is taken and he puts in Bail in Hill Term it was prayed that the Bail of Michaelmas Term might be taken off the Filer of that Term and put upon the File of Hill Term for otherwise the Plaintiff cannot proceed against them joyntly upon Bail put in in several Terms and it was so done Noy p. 90. Scire Fac. against the Bail the Scire Fac. recited that Judgment was given against the Principal in Debt but mentions not therein that the Capias was awarded yet per Cur. it is good it may be omitted or recited Cro. Jac. 97. Justice Williams versus Vaughan Per Cur. If one be arrested in this Court and puts in Bail and after the Plaintiff recovers and the Defendant renders not himself according to Law in safeguard of his Bail the Plaintiff may at his Election take Execution either against the Principal or Bail But if he arrests the Bail tho he had not full satisfaction yet he shall never afterwards meddle with the Principal But if two be Bail and one is in Execution yet he may also take the other but if the Principal be in Execution he cannot take the Bail Cro. Jac. 320. Higgins Case When the Plaintiff in the Action hath Judgment he hath Election to sue a Scire Fac. against the Principal upon the Judgment or against the Bail and Principal joyntly upon the Recognisance Scire Fac. brought against three Bails upon a Recognisance acknowledged by them and the Principal jointly and severally and upon Demurrer the Writ was abated because this being founded upon a Record the Plaintiff ought to shew forth the variance from the Record as that one is dead Allen p. 21. Blackwel and Ashton By the Course of the Court a Scire Fac. against the Bail must have seven days between the Teste and the Return else all Proceedings after are void and one cannot be taken out returnable more and the other within less than seven days 1 Keb. 182. Gifford and Smith Bail in B. R. by John Bennet Esq and the Declaration was on a Recognisance by the Name of John Bennet Gent. and on Nul tiel Record of the Recognisance by J. B. Esq Per Cur. it is all one Name and the Court takes no notice of Heraldry here 1 Keb. 293. Bennet and Dean Scire Fac. on a single Recognisance of Bail was excepted to because returnable at a day certain and so agreed by per Cur. to be quasht and the party left
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
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
Executors of G. naming them were dead not saying intestate and if any Executor made his Executor the Plaintiff is not sufficiently intituled Non allocatur per Cur. the Defendant ought to shew there were Executors Judgment pro Quer. 1 Keb. 480. Burgess versus Clayton Against Executor or Administrator DEbt on Bond against B. Executor Defendant acknowledgeth the Bond but saith he gave another Bond in satisfaction of that Bond unto the Testator which the Testator did accept in satisfaction Ill Plea one chose in Action cannot be in satisfaction of another Stiles p. 339. Crook and Vernon Debt against J. B. and M. his Wife Executrix of her first Husband upon Bondâ— Defendant Pleads thus praed J. and M. per Atternat say that they were divorced before the Writ purchased On Demurrer adjugded that the Writ shall abate Crook Eliz. 352. Underhil's Case The Plaintiff brings two Obligations of 20 l. a piece against the Executor whereas one was not due and Damages were given for both entirely but it s no Error for it was only an allegation of the Defendant and it did not appear and the Defendant rested not upon it but pleaded another Plea viz. a request to make a Release and Issue upon that If the Plaintiff Sue one as Executor joyntly with the true Executor who is not Executor this is not in Abatement of the Bill or Writ but only that he shall be barred against him and so not Error Crook Eliz. p. 110. Thiâ—kettle against Reve. The constant difference is where Executors bring the Action all must be named but an Action brought against them may be against such only who do Administer and unless it be averred that he did Administer the Defendant cannot plead this Plea in Abatement and therefore in 1 Keb. p. 865. Swallow against Emerson In Debt upon a Bond the Defendant pleaded that there was another Executor not named and yet living and doth not say that he did Administer The Plaintiff Demurred and Judgment for the Plaintiff Debt against the Defendant Executor of one joynt Obligor Defendant pleaded in Abatement that it appears the Obligation was joynt sed non allocatur for it appears not that the other Sealed nor that the other Survived in which case the Executor would be discharged the Plea was concluded quod billa cassetur and it begins with Judgment de billa but the body of the Plea is a general Demurrer which per Cur. is a plain bar to the Declaration here being no Plea in Abatement only the form begins and ends in Abatement but there is no other form to a Demurrer to a Declaration In Abatement it should be si ad billam prad respondere debet for praecludi non is replication to a Plea 3 Keb. 672. Bager and Ash Against Baron and Feme ON Obligation made by a Feme Covert she shall plead she was Feme Covert â—nd conclude Issint non est factum because it was void 14 H. 4.30 Debt port against J. S. and Elianor his Wife upon Bond made by the Wife Defendants plead quod tempora confectionis and â—ew the day she was Feme Covert Plaintiff confesseth this but saith she Sealed the â—ame Deed the same day of her Marriage before her Espousals in the Morning Defendant Demurs Plaintiff had Judgment 2 Rolls Rep. 431. Jacksons Case Feme Obligor of full Age takes Baron within Age In Debt on Obligation they pray his Age but denied Noy p. 96. On Obligation made by the Wife dum sola Issue is found against them per Popham the Capias shall only be against the Wife Noy 13. Amson and Stockburne on non est factum Judgment must be quod capiantur More n. 93â— Bardolph and Perry Plaintiff declares of Obligation made by the Wife dum sola fuit the Writ must be in the debet detinet for the Baron hath the Goods of the Wife in his own right 5 Rep. 136. 3 Leon. p. 206. Walcotts Case Against an Infant Vid. supra titulo What Persons may 〈◊〉 may not make Obligations Against a Body politique IF one will charge Mayor and Comminalty they must both be bound If one oblige himself by the name of Major and Comminalty the Comminalty is not bound and no Goods of the Comminalty shall be put in Execution So it is of Dean and Chapter aliter of Abbot and Prior for they are bound tho' the Covent be not bound 3 H. 7.11 Prior Obligor is made Abbot Action of Debt is maintainable against him 9 H. 7.16 b. Prior of Baths Case Against two or three Obligors IF three are bound and the Action is brought against two the Plaintiff ought to shew that the third is dead If two or three are bound Joyntly and one dies the Executor of him that is dead is altogether discharged Siderfin p. 238. Ofborn's Case Debt on Obligation against one and upon Oyer he and two others were Joyntly bound Demurrer and Judgment pro Querente that the Declaration is good and it shall come on the other part to swear that there is another named in the Lien who is not named in the Writ Siderfin p. 420. Chappel and Uaughan Though two others are named yet it appears not that they put their Seals to it and so the Obligation is single but if the truth were that the other two had Sealed as well as the Defendant then the Defendant if he would take advantage of this ought not to have Demurred upon the Oyer but he ought to have pleaded in Abatement that the two other Persons Sealed the Obligation who are yet in full Life and so pray Judgment of the Bill 1 Sanders Trin. 21 Car. 2. f. 291. the same Case 3 Crook 494. 5 Rep. 119. Three are bound joyntly and severally upon Action brought against two the Defendants ought to shew that it was made by them and others in full life not named in the Writ because the Court shall not intend the Bond was sealed and delivered by all that are named in it therefore the Defendants cannot demur upon it though it be entred in haec verba So it is if an Action be brought upon a Recognizance taken before the Mayor and Recorder c. by Stat. 23 H. 8. because there the parties must seal But in Scire facias against three Ballees upon a Recognizance acknowledged by them and the Principal joyntly and severally Upon Demurrer the Writ abated because this being founded upon a Record the Plaintiff ought to shew forth the cause of the Variance from the Record as that one was dead Allen p. 21. Blackwell and Ashton Four are bound by these words Utrumque nostrum the Obligee may charge any of these severally but if he will have a Joynt Action against two of the four the Writ shall abate Three are bound joyntly and severally Obligee cannot bring Debt against two 10 H. 7.16.27 H. 8.6 Debt on joynt Bond against the Survivor The Defendant pleads one of the Obligors died and the Plaintiff afterwards released to the
Obligatorium concessit nor any Writing mentioned in the former part of the Declaration Sed non allocatur The Writings are produced and the Defendant by his Plea shews it 's an Obligation with Condition and it appears to the Court that the Plaintiff hath a just Debt and good cause to recover Cro. Car. 209. Sir William Courtney's Case In Debt sur Bond the Defendant confess'd the Action and because it 's not said in the Declaration Hic in Curia prolat ' it was adjudg'd a fault in Matter and Error Cro. Jac. 32. Dawbenny and Bannister Vid. le noveâ— Statute If a Bond be made to one and he doth not say in the Bond it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him tho' not expressed in the Bond 1 Brownl 72. Anonymus If any of the Bond be received it must be acknowledged in the Declaration Debt on two Obligations one was 100 l. the other 110 l. and he brought an Action generally of 200 l. upon these Obligations and acknowledgeth satisfaction of 10 l. but sheweth not of what Obligation it was that he acknowledgeth the payment of 10 l. it s no Error 1 Rols Rep. p. 423. Hale and Malyâ— vid. 3 Bulstr p. 244. Plaintiff declares upon a Statute Obligatory Solvendum upon Request and on Oyer it appears to be payable at a day certain Incurable fault Crook Jac. 316. Fox and Inkes Debt upon a Bill of 14 l. Solvendum 〈◊〉 cum 6 l. upon Account between them the Plaintiff only declares for 14 l. and good for that which comes after the Solvendum is void Crook Eliz. 537. Woodward and Parry Declaration is upon three several Obligations and upon Oyer of the several Conditions it appears one of the sums in the Condition was payable after the Bill exhibited Issue was joyned on Conditions performed and Verdict for the Plaintiff and intire Damages and upon Release of Costs and Damages Judgment was given for the two first Bonds only For tho' the Bill be an entire sum yet by the Court it appeareth they be as several Demands and Suits Hobart p. 178. Andrews and Delahay 1 Brown 68. Mesme Case One Declaration is naught After appearance the Plaintiff pleads de novo Noy p. 63. Rossiter and Bussey In B. R. the first Declaration was in Debt on Obligation 5 Feb. and the second was on an Obligation dated 15 Feb. and the pleading and Judgment was thereupon and held good for it was held as a Declaration without an Original which being after Verdict was ayded Crook Jac. p. 89. cited in Sir Michael Dormers Case Debt on Bond dated 13 Feb. The Defendant imparles and after a second Declaration was made and therein he declares on an Obligation dated 15 Feb. Defendant pleads non est factum it was amended and made according to the first Declaration for the first is the principal and the Plea always refers thereto Crook Jac. p. 105. Burrel versus Sir William Bowes Debt by Baron and Feme on an Obligation made to the Feme dum sola fuit and the Declaration is ad damnum ipsorum its good Stiles 134 Anonymus In Debt due upon a Bond or Contract there needs not a special Demand to be laid but licet saepius requisitus is sufficient Aliter if it were due by Arbitrement cum requisitus fuisset for then there must be a special demand Cro. Jac. 640. Waters and Bridges 1 Brownl 30. In inferior Court of Record 50 l. in figures is Error Stiles p. 165. Joson and Beale A thing that doth not intitle the Plaintiff to Action need not be contained in the Count. If the Condition be Endorsed or Subscribed it need not be contained in the Count but if it be contained before the in Witness then it ought to be contained in the Count. If a Man be bound to pay 10 l. when the Obligee carries 200 Load of Hay to his House there the Condition is precedent and it ought to be contained in the Count What comes after the in Witness be it a Proviso or Memorandum it may be as a Condition or Defesance and need not be contained in the Count 2 Brownl Rep. 97. Hammond and Jethro Be it known that J. C. bind me to R. in 40. l. to discharge and save harmless the said R. against W. Solvenâ— tali die c. there the Count is good generally without saying the Defendant had not saved harmless 22 Ed. 4.42 One ought to declare specially according to the Bill the Bill was to pay as I pay my other Creditors The Plaintiff declared generally that he was indebted to him in 5 l. Solvend ' upon request It s ill Cro. Eliz. 256. Bright and Metcalf Declaration for Outlandish Mony DEclares upon a Bill Obligatory wherein the Defendant was obliged to pay him â—00 Gilders of legal Mony Polonish viz ad valorem 220 l. legalis monetae Angliae and that the Defendant had not paid unto him the said 220 l. monetae Angliae nor the said 600 Gilders monetae Poloniae per quod Aâ—tiâ— accrevit c. Defendant pleaded non est factum and found pro Querente and the value of the Mony was enquired by the Jury viz. that the value of the 600 Gilders Polish was at the time of the Bill and now 220 l. The Action is well brought in the deâ—inâ— because he is to recover the value and the demand is not of any sum certain Cro. Jac. 617. Rands and Peck Cro. Eliz. 536. Bayshaw and Plaine Latch p. 4 77.8â— Wards Case The Court cannot compel the Plaintiff to set forth the Condition in his Declaration but till he doth it on Oyer demanded the Defendant shall not be compelled to plead Stiles 125. Sir Charles â—ot and Plunket On Oyer demanded unless the Plaintiff will shew the Bond the Court will set aside the Judgment as irregular 2 Keb. 275. Beadly and Beach When the Plaintiff counts on Bond it ought to remain in Court unless the Defendant after Oyer demanded suffer it to be delivered out then on non est factum the Court will not order it to remain there on prayer of the Defendant although anciently it hath been so 1 Keb. 486. Williams and Hulleâ— In Debt on Bond to deliver up Goods in a Schedule annexed per Cur. on demand of Oyer of the Condition they shall have also Oyer of the Schedule being all as one Dâ—ed but Oyer of Indenture for performance of Covenants shall not have Oyer of the Covenants but yet must set them forth and if he have no counterpart he may move the Court and obtain it 2 Keb. 4. Waterman and Adams Variance between the Obligation and Declaration DEbt on Bond the Plaintiff declares of a 1000 l. to be paid to him and the Defendant demands Oyer and he was bound to J. R. to be paid to J. K. to the use of J. R. The Defendant Demurs the Solvend ' to the Stranger is void and the Court seem'd
pro Querentâ— On non est factum pleaded it had been well enough so if this had been a Condition to pay Qu. if there be no sufficient words of Obligation to the Plaintiff Siderfin p. 290. 2 Keb. 81. Queen Mother versus Challoner Variance between the Obligation and Count shall not be shewed after imparlance 1 Brownl 95. Percher and Vaughan Variance in the Sum. THe Declaration was the Defendant stood bound to him in Septingent ' quinquagent ' libris and produced his Writing Obligatory and upon Oyer the words were Septuagint ' and quinquagint ' libris The Defendant pleads the Variance and demurs thereupon Per Cur. that is no cause to abate the Writ The Defendant then pleaded non est factum and the Jury found that the aforesaid Writing Obligatory de summa Septuagent ' quinquagint ' librarum per quod praedict W.W. per breve suum exegit de praefat ' T.P. infrascript septingent ' quinquagint ' libras was sealed c. sed utrum super tota materia c. the Court awarded the Plaintiff should recover the 750 l. and Costs Hobart 116. Walter and Piggots Case The Obligation was octigint ' and the Declaration octogint ' and Variance pleaded See the form of Pleading and entring Judgment Hobart p. 19. Fitzhughes Case Upon Oyer it appears no sum is mentioned in the Condition and the Declaration is to pay so much Per Coke it s a material Variance and the Obligation is single and no day being set down its payable on request and so the Declaration is good 2 Bulstr. 156. Dorrington and VValler Debt in York on Obligation of 13 l. Plaint was in plicito debiti 14 l. which variance was assigned for Error 2 Keb. 590. Vavisor against Bellingham Variance in the Names and Additions Misnomer MOlineax enters his Original in the Common-Bench against Marâ—ham in Debt on a Bond per name of J. Markham Alderman de D. and declares against him by the name of Markham de D. Esq and Judgment was given pro Quer. sur Verdict it was adjudged Error Yelv. p. 120. Molineax and Markham The Plaintiff in the Obligation was named J. Thorney de Fenton in Com' Not ' Armig ' and in the Declaration he was named J. Thorney Armig ' To de Fenton in Com' Noi ' were left out The Defendant demands Judgment of the Bill for this Variance Per Cur. respondeas ouster for this is no Variance to abate the Bill when he is well named is his proper Name and Sirname the addition is not material otherwise if it were of the part of the Defendant Cro. Eliz. p. 312. Thorney and Disney Declaration is on a Bond by Edmund Shephard for so it was signed and shews a Bond of Edward Shepard Noverint c. me Edwardum Shephard c. Upon non est factum the Jury found it the Deed of Edmund Shepard and Judgment was Arrested for they are distinct names And though it be subscribed by the name of Edmund yet that is no part of the Bond he ought to have brought his Action according to the Bond Cro. Jac. 640. Maby and Shepard Cro. Jac. 558. Watkins and Oliver Count quod praedict ' Jacobus per nomen Joâ—annis W. per quoddam scriptum c. upon Oyer the Defendant by the name of John W. fecit scriptum The Condition was if James W. paid The Defendant Demurs Per Cur. the Action lay not for John cannot be James Crook Eliz. 897. Feild and Winlowe W.S. is bound by the name of J. S. Action brought against him by the name of J. W. alias J. On non est factum adjudged the Plaintiff shall not recover the Action should be against J. as he is named in the Obligation 11 Eliz. Dyer 279. The Defendant pleaded variance between the Obligation and the Declaration for the Obligation was Randal and the Declaration was ad respondend ' Randulpho alias Randal Q. if Randulphus be Latin for Randal 3 Leon. p. 232. Babington's Case In the Writ he was named Son and Heir apparent and in the Declaration Son and Heir generally for this variance the Judgment was reversed Crook Eliz. 333. Annesby and Stokes When a Man appears and pleads he hath lost the advantage of Misnomer 2 Rolls Rep. 50. Sir Francis Fortescue's Case If he is named Saxex in the Original and Saxey in the alias dict' its variance for he ought to declare against him by the name he was at the time of Sealing the Bond and as he is named in the Condition and the alias dict' is for no other purpose but to make the name agree with the name in the Bond. If Action be brought against J. S. who at that time was Esquire and afterwards he is made a Knight there he shall declare against J. S. Armig. alias dict J. S. Mil. But in the first case it was no Error it being an easie Mistake 1 Bulstr 216. Saxey and Whemson Variance in time of payment of Entry THe Bill was Be it known c. to be paid at two payments that is to say 5 l. to be paid the 19th day of November which is the present of this Month and the other 5 l. the 10th day of December and the Bill was dated 17th Nov. 1604. The Plaintiff declares the Defendant did acknowledge himself to owe the Plaintiff 10 l. to be paid to the Plaintiff at two payments viz. 5 l. to be paid the 19th of November then next following and the other 5 l. to be paid the 10th day of December then next following On non est factum the Jury found the Special Matter The Question was Whether the Bill maintain the Count for the first payment and adjudg'd it did Brownl 1 Rep. 74. Prest and Cee The Count is of a Bond dated 1 May and the Entry is of 2 May on a Release pleaded and Issue thereon it 's good enough Aliter on non est factum 1 Keb. 426. Billage and Blake Oyer monstre des faits IF no Oyer be demanded it 's intended a single Bill 1 Keb. 937. Coxall and Sharp In Debt on Obligation the Defendant avers the Obligation was for security of certain Rent c. without demanding Oyer of the Condition it 's but as a single Bill and he cannot aver a Condition and so upon Demurrer adjudged pro Querente 1 Rol. Rep. 425. Baylee and Harrington The Law in Henry the Seventh's time was That the Defendant need not shew forth the Indenture of Covenants on Oyer demanded 6 H. 7.12 13. 9 H. 7.17 13 H. 7.18 The Defendant craves Oyer of the Obligation ei legitur and then of the Condition ei legitur And this was for performance of Covenants in an Indenture and after Oyer of the Condition the Entry on the Roll was That the Defendant prays Oyer of the Indenture mentioned in the Condition which was not brought into Court ei legitur The Plaintiff demurs for that the Defendant hath prayed Oyer of an Indenture which was not brought
762. Cantor and Hurtwel Bond to collect all the Amerciaments he Pleads he collected all and good being in the Affirmative aliter if the Condition be of matter of Record as to be Non-suit in all the Kings Courts 2 H. 7.15 a. 4 H. 7.12 b. Certainty THe express certainty regularly ought to be pleaded according to the express words of the Condition and to shew the performance 15 Eliz. Dyer 318. vid. Kel p. 60. Covenant in a Lease that he hath full Power and Authority to Demise the Land Lessee brought an Action on this Covenant it sufficeth him to say the Lessor had not full Power and lawful Authority and this Assignment of breach is good for he persues the words of the Covenant Negative and the Lessee is a stranger to the Lessors Title and therefore the Defendant ought to shew what Estate he had in this Land tempore dimissionis by which it may appear to the Court he had full Power and lawful Authority to Demise 9 Rep. 60 61. Bradshaws Case A Man is bound in the Copulative that he and his Assigns persolverent omnia onera He ought to Plead that he and his Assigns have done this 28 H. 8 Dyer 27. b. Condition to pay 10 l. within six Months after the Marriage of the Plaintiff the Defendant Pleads the Plaintiff was not Married the Plaintiff replies he was Married Defendant demurs because it doth not appear but the Defendant hath paid the 10 l. Adjudged for the Defendant he ought to answer the Condition Aliter after Verdict Siderfin p. 340. in Hayman and Gerards Case Though it be a good Plea regularly to the Condition of a Bond to persue the words of the Condition and to shew the performance Yet Coke said there was another Rule that he ought to Plead in certainty the time and place and manner of the performance of the Condition so as a certain Issue may be taken As Condition to pay 30 l. to H. S. J. S. and A. S. tam cito as they should come to the Age of 21 years The Defendant Pleads he paid those sums tam cito as they came to Age The Plaintiff Demurs because it s not shewed when they came of Age and the certain time of the payment It s an ill Plea So if the Condition be for performance of Legacies in such a Will he Pleads performance generally not shewing the Will nor what the Legacies are Cro. Jac. 359 360. Hally and Carpenter If I am bound to enfeoff you of all the Acres in such a Fine and I shew the Record of the Fine and averr that I have enfeofft you this is good But if it be of Acres in Middlesex he ought to shew the Acres in certain 28 H. 8. Dyer 28. Conditions to deliver all Writings concerning such Lands it s a good Plea to say generally that he has delivered all the Writings Doct. placitandi 62.4 H. 7.12 vid. pluis for Conditions performed pleaded generally and not shewing the certainty 12 H. 8.6 b. Sir John Cutts Case 12 H. 7.14 b. In pleading Negatively he ought to Traverse all the Condition as if a Man be bound to pay for so much Bread as the Defendant shall deliver at the common Hall whensoever he shall be requsted by C. he shall say he was not requested by C. to pay to him any Mony for any Bread delivered at the Common Hall c. 4 H. 7.12 Where the Party is bound with Condition to warrant Land the Defendant shall say expressly that he had warranted the Land for pacificè gavisus is no Plea 30 H. 8. Dyer 42. Condition was if neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said Lands by any indirect means but by due course of Law then c. The Defendant Pleads that neither J. S. nor J. B. nor J. G. did disturb the Plaintiff by any indirect means but by due course of Law Q. if it be not a Negative Pregnant i. e. a Negative which implies an Affirmative Not disturbed by any indirect means such a Plea had been good or not disturbed contra formam conditionis Adjurn ' If I am bound I shall not go out of Westminster Hall till night but tarry in the Hall till night or that I will not return to Serjants Iun the direct way but by St. Giles in an Action brought on that Bond I may plead in totidem verbis 2 Leon. p. 197. Dighton and Clark Where a certain Duty accrews by the Deed at the beginning as by a Covenant Bill or Obligation to pay Mony this ought to be avoided by a matter of as high a nature viz. by Deed vid. suprà tit ' Accord pleaded and 9 Rep. 78. Peytoes Case Sometimes matter un fair shall avoid an Obligation as well as a matter in Writing as to say the Feme was Covert de Baron c. 4 H. 7.15 The Defendant Pleads after the Mony became due he and the Plaintiff did by parol submit to an Award and sets forth the Award and performance per tender Per Cur. it s an ill Plea Submission by parol cannot discharge a Debt by Specialty Stiles 350. Ludding and White Coxal and Sharp 1 Keb. 937. Inter alia a Bond may be put in Arbitrament yet in such case the Arbitrament cannot be pleaded in Bar of the Obligation Q. if the party hath his remedy on the promise to perform the Arbitrament A Bond inter alia may be Arbitrated and mixt with other things And where the Award is good the party must resort to Action thereon 2 Keb. p. 734. Morris and Creech A Special Plea in Bar is always to be answered with a Special Replication in the point Whereas such a Mortgage was made of such Land to J. S. c. if therefore the said Land at the day be redeemed and discharged from all Tithes c. the Defendant Pleads the Close was not Mortgaged to J. S. The Plaintiff replies it was Mortgaged he need not alledge it was not redeemed J. S. is bound to Marry the Daughter of B. at Easter next J. S. Pleads in Bar she died before Easter it s a good Replication to say she was living at Easter day without saying he had not Married her Yelv. p. 24. Bayly and Taylor Vid. good Learning as to this Rule supra Titulo Assignment of a Breach In Monox and Warleys Case It was taken as a Rule that the Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment altho' the Issue be found for him as in Debt on Bond against A. and B. A. Pleads Non est factum B. Pleads the Release of the Plaintiff and it s found the Deed of A. and the Plaintiff hath Released to B. The Plaintiff shall never have Judgment for upon the Verdict it appears he hath no Cause of Action 2 Leon. p. 100. Pleas in Abatement IN Debt on Bond the Defendant demands
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
that the Mony was demanded 1 Brownl p. 71. After Imparlance in Debt sur Bond the Defendant shall be received to plead he was always ready to pay Winch. p. 4. Doct. placitandi 388 389. A Bond to pay 500 l. The Defendant pleads after Imparlance Tender at the day place and that none was there to receive it and that he is yet ready to pay The Plaintiff demurs because he doth not plead touts temps prist and although he tendered it at the day whereby he saved it for the time yet if he doth not plead touts temps prist it shall be intended he hath forfeited his Obligation Q. If it be a good Plea Vid. Cro. Jac. p. 617. Steward and Coles The Defendant pleads Tender at the day and Touts temps prist The Plaintiff received the principal sum in Court and Judgment to acquit the Defendant of the sum received And the Plaintiff to have Damages alledgeth a demand of the Mony from the Defendant and thereupon it was demurred and Adjudged against the Plaintiff For if the Plaintiff would have Damages he ought not to receive the Mony but to suffer it to remain in Court for after Judgment Quod eat inde sine die no Issue can be taken Cro. Jac. 126. Harrold and Clothworthy Cro. El. p. 73. Allen and Andrews where he need not plead Uncore prist where an Obligation is made and afterwards a Defeazance is made thereof if he pay a lesser sum c. he needs not say Touts temps prist for by the Tender he was discharged of all Cro. Eliz. 755. Cotton's Case Debt on Bill to pay 50 l. on demand and on Non-payment the Defendant to pay 100 l. Action is brought for the 100 l. The Defendant pleads there was no demand The Plaintiff demurs and per Cur. the Action is a demand of the 50 l. but no cause to forfele the 100 l. But the Defendant should have pleaded tender of the 100 l. and Uncore prist But on Bond on Award to pay on demand being Collateral it s lost sans demand therefore no Uncore prist need be But where the Condition of an Obligation is to pay on demand that is a distinct Deed from the Bond and there is no Title to the Forfeiture sans demand but the Debt of 50 l. here is not lost per not demanding 3 Keb. 577. Remsee and Rutter Condition was that whereas the Defendant was Executor to M. D. that if the Defendant should perform fulfil c. the Will of M.D. in all Points and Articles according to the true intent and meaning thereof that then c. and pleaded further that the same M. by his Will bequeathed to J. S. 3 l. He pleads as to the said 3 l. he is and always was ready to pay the same to J. S. if he had demanded it The Plaintiff Demurs Per Cur. the Plea is well For this Obligation the Condition being general to perform the Will had not altered the nature of the payment of the Legacy but the same remains in such manner as before payable sur Request and not at the peril of the Defendant 1 Leon. p. 17. Fringe and Lewis A. is bound to B. to pay 10 l. to C. and A. teners to C. he refuseth the Bond is forfeited for the Obligor having taken upon him to pay it his Refusal cannot satisfie the Condition So to enfeoff a Stranger and he offers to enfeoff him and the Stranger refuseth the Obligation is forfeit Aliter if the Feoffment had been by the Condition to be made to the Obligee or to any other for his benefit or behoof there tender and refusal shall save the Bond. But if A. be bound to B. with Condition that C. shall enfeoff D. if C. tender and D. refuseth the Obligation is saved for the Obligor hath undertaken to do no act but that a Stranger shall enfeoff a Stranger Co. Lit. 209. a. Non est factum In what cases Non est factum is a good Plea and in what cases and where a special Non est factum may be found IN every case where the Obligation is void he shall conclude Non est factum As a Feme Covert shall plead Non est factum for its void by her So where a Deed is razed or interlined so where the Obligor was not Lettered Otherwise where the Deed is only voidable for there he shall shew the Special Matter and conclude Judgment si actio 1 H. 7.15 Downe's Case As an Infant pleads at the time of making the Bond he was within Age he shall not conclude issint Non est factum but Judgment si actio When the Deed is voidable and so remains at the time of the Pleading as in case of Sealing a Bond by an Infant or Duress here he cannot plead Non est factum but it must be avoided by Special Pleading with conclusion of Judgment si actio 5 Rep. 119. Whelpdale's Case When an Obligation or other Writing is by Act of Parliament enacted to be void the party who is bound cannot plead Non est factum but must plead this Special Matter and conclude Judgment si actio As on Bond made to the Sheriff against 23 H. 6. cap. 10. or a Bond made against the Statute of Usury 5 Rep. 119. Whelpdale's Case Hob. p. 72 166. In all cases when the Obligation was once a Deed and after before Action brought becomes no Deed either by razure addition or other alteration of the Deed or by breaking off the Seal In these cases the Defendant may safely plead Non est factum for at the time of the Plea which is in the Present Tense it was not his Deed 5 Rep. 119. Whelpdale's Case If the Condition of an Obligation be altered or interlined this shall avoid the Obligation as well as the Condition Aliter in a Defeazance 28 H. 8. Dyer 27. b. In Debt on Bond The Special Verdict was That the Defendants were bound to the Plaintiff being Sheriff in 60 l. Noverint nos c. teneri B. Winchcombe Armig ' in 60 l. c. with Condition to appear and after the Delivery these words Vic' Com' Oxon ' were interlined without Notice or Command of the Plaintiff Et utrum factum praedict ' sit factum praedict ' Henrici and Resolv'd per Cur. 1. When a lawful Deed is razed by which it becomes void the Obligor may plead Non est factum and give the Matter in Evidence for at the time of the Plea pleaded it is not his Deed. 2. When any Deed is altered in a Point material by the Plaintiff himself or by any Stranger without the privity of the Obligee be it by addition razing interlineation or tractation of a Pen through the midst of any Material word by this the Deed becomes void As if one be bound in 10 l. and after Sealing 10 l. is added to make it 20 l. it s void So if the Obligee himself alter the Deed by any of the said ways though it
be in words not Material yet the Deed is void But if a Stranger without his privity alter it in a place not Material it shall not be void and so in the Principal Case the Addition being in a Point not Material per a Stranger Judgment pro Querente Benedict Winchcombe's Case If the Deed be razed in the Date after the Delivery it goes to the whole 5 Rep. 23. Mathewson's Case If two are bound in a Bond and the Seal of one is broken off this Misfeazance ex post facto shall avoid the Deed against both 11 Rep. 27. Henry Piggot's Case The Defendant pleaded Non est factum Testatoris A Special Verdict was the Testator was bound in that Bond with two others joyntly and severally and that afterwards the Seals of the two others were eaten with Mice and Rats The whole Deed is avoided by this for it is not the same Deed and whereas it was joynt at the first now if the Deed should stand good against the Defendant only it should be his Bond only It is not an Obligation joynt and several but joynt or several at the Election of the Obligee for he cannot use both and when by his own Lachess he hath deprived himself of his Election the whole Bond is gone But in Mathewsons Case 5 Rep. the 100 l. are several and not joynt and therefore if the Seal of one is torn off it shall not avoid the Deed as to the others and there if the Covenantee Release to one of the Covenantors it shall not discharge the others March Rep. 125. Bayly and Garford The Defendant pleads that it was Sealed by him and one W. C. and that after the Sealing the Seal of W. C. was worn off and after reaffixed per quod scriptum praedictum vacuum in lege existit Per Cur. it s better to plead this Special matter than non est factum Noy p. 112. Gomersal and Wood. The Defendant pleads that at the time of the delivery there was not any day written in the Deed but a space left and after the delivery the Plaintiff put in a day and issint non est factum The Plea had been better to have set forth the Special matter per quod scriptum praedict ' perdidit effect ' Judgment si actio Moren 8. The Issue was non est factum the Jury did find the Defendant did Seal and Deliver it but that after the day of the Issue joyned the Seal was pulled off from the Obligation Judgment pro Querente Cro. Eliz. p. 120. Michels Case The Defendant pleads quod factum praedict ' was made and delivered without a date and afterwards the Plaintiff put a date thereto and issint non est factum it s an ill Plea For he first confesseth it to be his Deed by saying factum praedictum and afterwards denies it he might have said non est factum generally Cro. Eliz. p. 800. Cosper and Turner If one confess an Obligation and pleads acquittance he shall not conclude issint non est factum but Judgment si actio 1 H. 7.15 The Plaintiff counts on Bill Obligatory made by the Defendant to him the Defendant pleads non est factum the Jury find the Bill was a joynt Bill made by the Defendant and another to the Plaintiff Per Cur. it s an ill plea but he might have pleaded in Abatement of the Writ 5 Rep. 119. Whelpdales Case The Defendant pleads the Obligation was made to another and not to the Plaintiff its ill for it amounts to non est factum Siderfin p. 450. Gifford and Perkins 2 Keb. 633. Mesme Case The Defendant pleads non est factum Jury in Special Verdict find the Bill in haec verba Whereby it appears that the Defendant and J. S. Sealed the Bond and were joyntly obliged and the said J. S. yet alive Per Cur. adjudged pro Querente Cro. Jac. p. 152. Stead and Moone Three are bound conjunctim and divisim in an Action against two of them they may plead non est factum 14 Eliz. Dyer 310. A Stranger to a Deed shall not plead a Special non est factum as that the Seal is severed from the Deed and issint c. but he ought to plead riens passa per le fait 1 Rols Rep. 188. More and Waldron If the Deed of another be pleaded against a Stranger he may not plead non est factum 20 Ed. 4. 1. a. If an Obligation be delivered to another to the use of the Obligee and this is tendered to him and he refuseth it now the delivery hath lost its force and the Obligee may never after agree to this and therefore the Obligor may say non est factum So if the Obligation be made to a Feme Coverr and the Baron disagree to it the Obligor may plead non est factum for by the refusal the Bond hath lost its force and becomes no Deed 5 Rep. 119. Whelpdales Case 1 Anderson 4 Tawes Case The Defendant pleads that he was Illiterate and that the Bond was fasly read to him and further that this was delivered as an Escrow and the Condition not performed and issint non est factum this per Cur. is not double because he concludes non est factum 38 H. 6. 26 27. Pleading non est factum upon delivery as an Escrow and Conditions not performed vid. supra Title Delivery If a Man be Illitered and the Deed is not read to him or read in other words or the effect declared in other form then is contained in the Writing he shall avoid this and plead non est factum 2 Rep. 9. Thoroughgoods Case If a Man be Lettered and is Blind and the Deed is read to him in other manner he shall avoid the Deed. C. is bound to pay Mony to two joyntly one dies the other Survives and dies and makes Executors Executors brings Action versus C. and declares on the Bond made to the Testator and another and Avers not the the Testator Survived The Defendant pleads non est factum Ill Plea for it was his Deed and the matter of variance goes to the Abatement of the Writ and not to the Action and it s too late for the Defendant to take advantage of it Stiles p. 78. Holdich and Chace If the Defendant had demanded Oyer of the Deed and entred it he might have demurred as to the Declaration Allen p. 41. Mesme Case Debt on Bond the Defendant pleads non est factum The Jury find Specially the Plaintiff declares on an Obligation dated the 24 day of the Month and they find the Obligation was sealed and delivered the 27 day but bears date the 24 day utrum this shall be accounted the same Obligation on which the Plaintiff declares It shall be accounted the same and this is a Plea in Bar and not in Abatement Stiles p. 414. Hill 1654. Leake and Reynolds So Goddard port Debt on Obligation made to his Intestate dated the 4 of Apr. 24 Eliz.
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
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
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
Lat. 194. Oblig versus 3 heredes in Gavelkind Bar per un que est Infra aetat ' comperiut per Guardian placitum demur pur Nonage Id. 195. Pur Executors Administrators PRo Executore sur Obligat Co. Ent. 139 145 246. 1 Brownl 83. Cl. Man 200. Pro Executi sur bill Oblig ad solvend 100 l ad certum diem futur ' si Def. ramdiu viveret Brownl Lat. 108. Pro Executor ' sur bill Penal Mod. Int. 151. Pro 2 Executors sur bond Bill Penal Idem 164. Pro Executor ' superviventis sur Obligation fait al 2 Ra. Ent. 323. Pro Executor ' versus Executor sur Obligation 1 Brownl 86. Mod. Int. 171. Pro Executor ' versus Administrator Modus Int. 157. Pro Executor executoris vers Executor Ra Ent. 323. Pro Executore Executri◠〈◊〉 194. Sur bill Perial per Executrix â—a baron Mâ— Intr. 167. Per Executor versus Heir 〈◊〉 bill Obâ—tory Ct. man 208. 1 Browne 168. Per Executor ubi querens cepit in virâ— man 244. Sur bill Obligatory per Executor versus Executor en lâ— simul cum alsis Executor 〈◊〉 fecer defair Placita gen spec 261. Per Executor sur Oblig apres severance de â—on Executor Id. 270. Ru. Ent. 330 â— Pro Executor sur several bills Obligatory Tomps 114. Pro 2 Executors versus Stannatorem Com' Devon ' sur Oblig ' Brownl Lat. 178. Pro Executore Coexecutrice sur Obliâ— ubi Executrix cepit in virum Iâ— 194. Per 2 Executors 1 Coexecutor esteant defunct vers Executor Hob. Ent. 227. Per Administrator versus home sa semâ— sur Bond la feme esteant Daughter Heir al Obligor Modus Int. 167. in Scaccario Pro Administrator sur Bond Cl. man 20â— Ra. Ent. 320. bis Per Administrator durante minoritate Exâ—cutoris 1 Browne 167. Brownl Lat. 198 199. Per Administrator de bonis non 1 Browne 172 248. Per baron feme Administr ' del Obligee Tomps 134. Ra. Ent. 324. 1 Browne 87. Vide pluis quoad formam Narr ' Towns Tab. 94 95. Per Administrator versus Executor ' Cl. man 246. Pro Administratrice ejus viro super billa Obligat ' ad solvend ' denar ' super diem maritagii in consideratione receptionis Annuli aurei cum Adamante in â—o affix ' Brownl Lat. 175. Pro Administratore super billa Obligat ' ubi Def. obligasset se solvere intestato 20 l. ad diem maritagii filie natu-minoris sue vel ad diem mortis ejusdem filie Ideâ— 198. Pro Administratore versus 3 Heredes in Gavel-kind Id. 195. Versus Executors Administrators VErsus Executor sur Obligation Modus Int. 168. Cl. man 204. Ra. Ent. 321. Co. Ent. 127 268. Versus baron feme la feme esteant Executrix devant marriage Modus Int. 171. Versus Executor Exec ' simul cum Coexec ' sur Bill Ra. Ent. 329. Versus Exec ' Exec ' Co. Ent. 150. Pro 3 viris 1 uxore sur Obl ' fait aâ— ' 2 la feme Versus Executor sur 2. Obligations fait per Testatorem pro 40 l. 2 Browne 73. Versus Exec ' sur bill Obligatory pro solutione denar ' ad Nativitatem primogeniti filii quer ' Tomps 115. Versus baron feme Executrix del Obligor Tomps 149. Placitat ' quod Judic ' habuit fuit versus Defendant dum sola fuit quod plene administravit praeter 20 l. quâ— executione Judicii onerati existunt 〈◊〉 Repl ' quod Judic ' habuit fuit per â—udem Versus Executor ' per virum uxorem super Oblig ' fact ' uxori dum sola fuit Brownl Lat. 255. Versus Administrator ' Cl. man 206. Co. Ent. 149. Versus Administrator ' simul cum Coadministratore Ra. Ent. 322. Versus baron feme Administratricem sur diverse Specialties 1 Brownl 85. Id. Lat. 174. Versus Administrat ' Administrat ' sur bill 1 Brownl 183. Modus Intr. 154. Brownl Lat. 173. Versus Administrator ' sur bill Peâ—al Mollus Int. 155. Versus Administrator ' de bonis non Cl. man 207. Versus Administrator ' per Executor ' Mod. Int. 157. Versus 2 Administrators lou un tant appiert lauter esteant Utlagat ' 1 Brownl 176. Versus Administratix son baron sur Obligation pur performance des Covenants en un Indenture del demise d'un ' Wine-Licence Brownl Lat. 212. Pleadings QUod scriptum talem in se continet Conditionem videlicet quod c. Et sic Placitat ' ad judic ' sine petitione auditus scripti vel Conditionis Ra. Ent. 154 155. Barr. Sur Counterbond and to save harmless PUr saver harmless Placitat ' quod non fuit damnificatus Replic ' monstre coment fuit damnificatus per Judicium recuperat ' versus cum Rejunctio quod Judic ' habit ' fuit per fraudem Tomps 145. Narr ' sur Condition a saver le Plaintiff harmless versus un stranger Defend ' dit que stranger port Action versus le Plaintiff ad Judgment il paid luy saved luy harmless Nul plea doit aver pleaded non damnificatus Co. Ent. 139. Puis Oyer del Condition Mod. Int. 191. Bar per non damnificatus Repl ' quod denar ' fuer ' insolut ' Obligee fait Executor qui arrest Quer ' per Lat ' detinuit quousque solvit denar cum misis Demur inde 3 Brownl 174. Similis Bar Renl ' quod denar ' fuer ' insoâ—â— per quod Obligee minabatur conâ—utur arrestare quer quod querens illos ei spâ—vit sic damnificatus Ash p. 247. Similis bar Repl ' quod feme prist baron puis ils sue Original Cap ' sur Oblig ' pro denar ' insoluâ— ' per quod querens pro exâ—neratione sua a scripto solutione parti debiti expendidit 30 â— Rejoynd â—nd Def. post Original Cap ' prosecut pro exoneratione querentis solvit tot ' debit mis secte delib ' quer ' scriptum cancelland ' traverse quod querens expendidit 30 s. Issue indeâ—tender sed Def. nil dicit 1 Brownl 107. Id. Lat. 188. Replic ' quod Plaintiff solvit debit ' ad diem issint damnificat ' Modus Intr. 19â— 192. Non damnificatus per 3 scripta specificat ' in Conditione nec per eorum aliquod vel sectam in Lege superinde Hâ—r 302. Quod Def. solvit denar ' ad diem sic indempn ' conservavit querentem Realiâ— Protestando quod non indempn ' conservavit pro placito dicit non solvit denar ' ad diem 3 Brownl 118 119. Idem Lat. 193. Similis bar Replic ' non solvit denar ' 3 Brownl 119. Quod Creditor obtinuit Judicium versus quer ' in B. R. Def. super requisitionem quer ' solvit denar ' in exoneratione Judicii Demur ' inde Co. Ent. 199. Bar by non damnificatus Plaintiff Repl ' quod il suit sued al Exigent
issint damnificat ' Modus Int. 195. Ad Obligationem pro securitate querentis de altera Obligatione 200 Marcarum Bar per non damnificatus Repl ' quod R. S. recuperavit 200 Marcas versus eum coram uno Vic' Lond ' in computatorio suo Reioynd quod non habeatur tale Record ' recuperationis Surrejoynd ' quod habeatur tale Record ' petit breve ad certificand ' Justiciar ' utrum habeatur tale Record ' necne 1 Browne 208 209. Oblig ' a saver harmless Pled ' quod solvie denar ' sic acquietavit Tomp 158. Plaintiff non est damnificatus le Plaintiff esteant bayle Repl ' quod suit damnificatus monstre coment viz. per Judicium sur Soire fac ' versus ipsum Tomps 171. Al Counterbond cum Conditione ad indempnem conservand ' un Surety Def. placitat quod solvit denar ' in Conditione tal ' die sic indempnem conservavit Repl ' Protestando non indempnificavit c. pro placito non solvit prout c. Rejoynd ' quod solvit ad exit ' superinde Brownl Lat. 193. Alitèr quod Def. solvit al Obligee 31 l. 10 s. tali die in Aula Hospitii de Cliffords-Inn Et perinde exoneravit quer ' à solutione denar ' in Conditione ratione cujus quer ' non damnificatus suit per Def. de praedict ' Oblig ' 60 l. per Quer ' Def. al Obligee fact ' deliberat ' Repl ' quod Dâ— non solvic praedict ' 3 l. 10 s. al Obligee proâ—â— c. Brownl Lat. 194. Alitèr per Administratricem quod inteâ—tatus in vita sua solvit denar al Obligee 〈◊〉 Conditionem Et sic Quer ' fuit indeâ— conserv Repl. protestando quod 〈◊〉 status non indempnem conservavit quer prouâ— c. Pro placito quod non solvit in vita sua denar ' al Obligee secundum Conditionem Idem 194. Al Count super Oblig ' cum Conditione ad indempâ—ficand ' Quer ' ab omni damno evenien ' occasione quod ipse Obligatus fuit cum Def. in 7 Obligationiâ—us ad solvend ' 20 s. per Annum quarteriaâ—im â— termino 7 annorum si Def. Obligee tamdiu viverent ' Bar per non dampuisicat ' Repl ' quod Quer ' fuit damnificat ' eo quod Def. non solvit unam quarterialium solutionum secundum Conditionem septime Obligationis per solutionem 20â— al N. le principal Obligee Repl. protestando quod Quer ' non solvit predict ' 20 s. Pro placito quod N. relaxavit Def. ante diem per Quer ' in replicatione sua pretens Morat ' in lege specialis ad rejunctionem Eo quod est decessus a barra sua c. Id. 228 229. Repl ' Vic' ad placitum Ballivi de non damnificat ' Quod Def. existen ' ballivus Subvic ' permisit bona seisiâ—a per Fieri fac ' fore rescussat ' asportat ' per quod Quer ' devenit onerabilis c. Id. 256. Al Action de Deâ— sur Counterbond Def. dicit quod ipse solvit al principal Obligee 10 l. 10 s. juxta Conditionem sic bene sufficien ' indempnem conservavit quer ' ab Obligatione del principal Obligee ac de omnibus Actionibus sectis custag damnis Judicâ—s executionibus demandis predict Oblig ' concernen juxta Conditionem Brownl Lat. 257. Aliter quod Quer a tempore confectionis scripti al principal Obligee hucusque non fuit damnificatus proinde seu de aliquibus custagâ—s damnis seu detrimentis ratione ejusdem scripti surgen ' juxta conditionem Id. ibid. Narr ' sur Counterbond versus Def. unum Collectorum reventionum Novi Rivi duct ' usque London Bar ' puis Oyer del Condition ' que fuit ad indempneâ— servand ' quer ' ab omni damno ei even ratione Def. existen ' Collector ' partis reventionum Novi Rivi. c. Def. plead quod Quer ' ad aliquod tempus ante breve impetrat ' non fuit damnificatus ratione predict ' Oblig ' in Conditione predict ' recitat Repl ' quod Def. recepit 23948 l. 4 s. 6 d. de redditu revention ' Novi Riviâ— quas non solvit Thesaurario Societat ' dicti Rivi Unde Quer ' minatus fuit implacitari proinde ratione cujus quer ' coactus fuit agreeare ad solvend ' 150 l. c. Rejoynd Def. confesse receit de 21591 l. 6 s. 5 d. Mes que il ad paid ceo al Treasurer de dit Society within one Month after Et traverse verse la receit de 23948l 4 s. 〈◊〉 prout Brownl Lat. 208. Al Obligation ove Condition que 〈◊〉 dempnefiera le Plaintiff d'un Bond en quel il deveign oblige pur performance des Articles per un J. J. Bar que J. J. performe les Articles que le Plaintiff fuit damnifie Demur ' Winch's Entry 187 188. Condition to save the Plaintiff Harmless of all Actions and Damages that may arise upon the release of the Defendant out of Execution being then in Execution at the Suit of the Plaintiff from all persons that may molest him concerning the said Release Bar that a Plaint was affirmed in the Court of the King at York against A. N. for 100 l. and that the Defendant and one H. was his bail The Plaintiff had Judgment against N. and also against the bail and the Defendant upon this was taken in Execution and the Plaintiff releas'd him which is the same Release in the Condition and so concludes he saved him harmless Repl ' The Plaintiff confesseth the Plaint Bail and Judgment but saith before the Defendant was taken in Execution H. the other Bail gave him Security for his Mony and in consideration of this the Plaintiff promised H. that he would take Execution against the Defendant and that he will not release him without the consent of H. upon which H. had procured him to be taken in Execution And then the Defendant moved the Plaintiff to discharge him who acquainted the Defendant with his Promise to H. and upon this the Defendant makes the Obligation with Condition prout and then he discharged him And H. brought an Action against the Plaintiff in B. R. for breach of the Promise and had recovered 150 l. Et sic fuit damnificatus Demur ' general inde Winch. Ent. d 271 usque 280. Vid. this Case in Hob. 269. Wilden and Wilkinson supra Per Cur ' the Action well lies Condition to save harmless the Town of C. from the charge of E. S. Sister of the Defendant and the Child with which she was pregnant Bar per non damnificatus Bar That the said E. S. had a bastard Child born in the said Town and the said Town was by a Sessions Order charged with the Keeping and Maintetenance thereof Et sic damnificatus Demur ' inde Winch p. 325. Condition to save harmless from an Obligation made to the Queen for the true Execution of an Office
Bar per performance of the Condition of the said recited Obligation and that the Plaintiff never was damnified Demur ' inde Id. p. 326. Count sur Obligation for the Governours of the Hospital of Bridewell and St. Thomas Hospital with Condition to discharge the City of London from a bastard Child The Defendant pleads Letters Parents for the Incorporation of Bridewell and it appears not that the said Governours have power to take or sue such Obligation Demur ' inde Winch. Ent. p. 328. Judgment for the Plaintiff Pleas en Abatement IN Debt fur Oblig ' Def. plead al breve quod sont deux Vills de C. nul sans addition Repl ' Estoppel per Obligation a pleader tiel Plea Demur ' inde respond ' ouster Ra. Ent. 159. b. 160. a. Special Matter quod il fuit guest in L. non commorans in L. Repl ' quod il suit commorant en L. Demur ' respond ' ouster Id. 160. Plea al breve quod puis darreine continuance solvit parcel issue sur ceo Id. ibid. Misnosmer pleaded Cl. Man 402. Repl. 435. Plea al breve Receipt of parcel per Acquittance Repl ' quod ceo fuit pur parcel de auter Debt Ra. Ent. 160. Repl ' quod fuit pur parcel del Debt demanded Issue Plea al breve quod un des Plaintiffs est mort devant impetration brevis illius Replic ' quod superstes Id. 161. a. De plaint pur ceo quod Def. fuit obliged al un J. S. sicome al Plaintiff en un escript nest specified en le plaint ou le dit J. S. est vivant ou nemy 1 Browne 4. Plead variance enter le Declarat ' le Obligation Repl ' quod def no dolt pleader ceo plea en abatement puis Imparlance Modus Int. p. 200. Bar per Muas AL Der sur Obligation Ra. Ent. 150. bis Wilk 272. 〈…〉 Simile fur Bill 1 Brownl â—2 Simile per Communitatem Ra. Ent. 〈…〉 Simile per Canonico◠〈…〉 Al 2 Bills de mosine dato Hern â—0 Quod Quer ' per alios minatuâ— fuit Def. de captione imprison ' nisi fecerit scriptum 28 H. 6.8 Cro. Eliz. 〈◊〉 Per Minas Major ' de Lond ' al Obligation fact ' nuper Camerario Lond ' al 〈…〉 modo Camerar ' Successor Tomps 〈◊〉 Bar per Minas Repl ' quod Def. 〈◊〉 lam ex spontanea 〈…〉 metam Minarum Brownl Lat. 172. Bur by Dunese SUr several Obligations 〈…〉 Al Debt sur Oblig ' 〈…〉 Ash 2â—8 Clâ—man 394. Det sur Obligation versus Major ' Vic' Communitat ' Bar ' quod Major fuit imprisonat ' quousque ipse Vic' Communitas fecer scriptum Demur ' inde Ra. Ent. 251. Bar per duress Replic quod Def 〈◊〉 fuit quer ' in 18 l. quod Quer ' procurant cum arrestari per warr ' sur Lat ' Ash 〈◊〉 Repl ' quod Def. commissus al' Fleet 〈◊〉 cution ' ad sect ' quer ' fec ' script ' pro soluc ' traverse plea per duresse Id. 249 Bar per release Repl ' per Duress Ra. Ent. 250. Post Oyer scripti Obligat ' Conditiâ—â— Defend ' placitat ' per Duresse a 〈◊〉 Bar per Duresse Repl ' quod Def. 〈◊〉 large fist Obligation spontaneousment ne que per Duresse de Imprisonment Brownl Lat. p. 200. Bar per Recovery an â—â—ter Coarâ— DEfend ' placitet ' quod est Actio dependen ' in London ' super idem scriptum non discontinuat ' Repl ' quod nullum tale habeatur record ' Hob. Ent. 222 22â— 1 Sanders 36 Pit and Knight Per Covert Baron DEt per Bill sur Obligation Bor quod querens fuit cooperta de viro tempoâ—e confectionis scripti Repl ' quod fuit sola Ra. Ent. 168. Placita gen ' sped 313. Ver. Intr. â—4 Quod Quer ' dic prosecutionis brevis Original ' fuit cooperta de viâ—o Repl ' quod fuit sola Ra. 168. Per deins Age. AL Debt sur Obligation Ra. Ent. 1â—3 bis Cl. man 395. Tomps 427. Simile ad Bill 1 Brownl 88. Wilk 270. Repl ' quod Def. est plene aetatis Brownl Lat. p. 176 Per Patriam all mutuat ' deins age al Bill Repl ' Def. fuit Indebitar ' Quer in denaâ—iis promedicamentis fecit billam pro seduritate solutionis Repl ' quod non fuit indebitat ' pro medicamentis Asâ— 241 242. Brownl Lat. 175 176. Per non est factum AL Det sur Obligation Ra. Ent. 160 180. Ash 191. Sur Bill Modus Intr. 187. Per non sunt facta Placita gen ' spic ' p. 344. Non est factum Testatoris 10 Rep. 120. Der de 800 l. Def potit audit scripti Quo lecto Def. dicit quod scriptum non warrant breve eo quod in scripto sunt haec 2 verba Octingentam quae sunt nullius significationis alicujus summe certe Judicium superinde pro Defend cum mists 3 Brownl 150. Der versus Priorem sur Obligation fait per predecessor Bar quod nuper Prior ante confectionem scripti resignasset Prioratum postea abstulit Commune sigill um fecit scriptum issmt non est factum Ra. Ent. 179. Quod quer ' folvit denar ' debit ' scriptum quer ' deliberavit scriptum defendeâ—ti nomine acquietancie postea absâ—ilit script ' sic Non est factum Idem 1â—0 Dyer 51. Det sur Obligation 30 l. Bar quod fecit scriptum Querenti de 20 l. quer looâ—t sigillationem c. rasit scriptum fecit 〈◊〉 Repl ' quod scriptum fuit rasum ante â—â—illat ' deliberat ' postea Et traverse rature post deliberacon ' 1 Brownl 90. Quod billa fuit de novo script ' interlineat ' his verbis Wilk 277. 1 Browne 192. Mod. Intr. 190. Per deletion ' interlineat ' in Indorsamento scripti Tomps 182. 3 Er. 135. Per razure interlineacon ' in Indorsament Mo. 80. 1 Br. 213. Modus Int. 189. Defendant pleads razure obliteration del sum de 20 l. inseruit summam 30 l. Repl ' quod razure fuit fait ante sigillationem deliberation ' scripti Rejoyne quod fuit fait post Brownl Lat. â—77 260. Super razure de Vill in Condition Brownl Lat. 258. Pro deleaco ' interlineacon ' in Indorsamento scripti post deliberation ' inde Repl ' quod Quer ' non obliteravit nec delevit aliquod in Indorsamento prout c. Brownl Lat. 202. Def. placitat quod obligatio sigillat deliberat ' fuit cum spaciis intervallis Rol. Entr. 333 334. Non est fact per mislecteur del Condition Tomps 173. Det sur Oblig ' 20 l. Bar quod Def. est Laicus concessit solvere script ' 101. script ' sic fuit ei expositum Ra. Ent. 180. 1 Browne 213. Modus Intr. 206. Bar quod script ' fuit el lecturn en auter sum ove tiel
Id. 188. Bar quod Testator in vita sua devenit Obligat ' eidem Def aliis in diversis denar ' â—ummis pro seperalibus Obligat ' quodque ipse non habet bona seu catalla ultra c. ad satisfaciend ' sibi 2 Judic ' obtent ' versus eum 2 Browne 7â— Repl ' Assets ultra Oblig ' fuit per fraud ' Id. 77. Per Administrator quod Judic ' obtent ' fuit versus defunct ' in vita sua 4 seperal ' Judic versus Def. ut Administrator post ejus mortem quod non habet Assets ultra Id. 87. Per Administrator qui placitavit Judic ' versus Curia B. R. quod Judic ' est minime reversat ' Quod Def. est una eademque persona quodque idem Judic fuit obtent ' pro vero justo debito sic idem Def. dicit quod ipse plene Administravit omnia bona catalla defuncti praeter c. Id. 97. Quod A. defunct ' habuit bona Notab ' in diversis Dioecesibus quod Administratio commissa fuit â— cuidam R. qui relaxavit Def. Id. 98 99. Administrator pled ' Judicium en C.B. obtent ' versus intestate en sa vie Repl ' quod Judgment est satisfied continued per Fraud ' Rejoynd ' que Judgment n'est satisfied Traverse se Fraud Issue sur Traverse Vidian 171 181 182 183. Simile Bar Replic ' Assets ultra Idem 175 176. Special Reteyner pleaded lou Administratio fuit grant al feme del Def. Def. est … ed com Executor Vidian 188. Per Administratrix Def pledes plene Admin Repl. quod Plaintiff ad prosecuted un Original breve versus Def. son baron retorn ' en C. B. sur ceo ad proceed al Issue mes que breve fuit abate per mort del baron que récenter exhibuit billam quod Defend tempore brevis Orig ' ad Assets Rejo Issue que Plaintiff non recenter exhibuit billam Id. 204 205. Bar per release fait per Administrator ' durant minore aetate Repl ' quod relaxavit in jure suo proprio Traverse quod relaxavit ut Administrator Def. moratur Quer ' rejungit Special Verdict Judgment pro Quer ' 1 Browne 167. Bar al Oblig ' port per Executor quod Testator implacitâsset quendam T. qui tenebatur simul cum Def. in eodem scripto quod ipse idem T. satisfecit Testatori superinde Id. 213. Bar quod Testator in vita sua dedit deliberavit quer ' sex Vaccas in plena solutione satisfactione denar ' c. Brownl Lâ—t 169. Narr ' per un Executor super Oblig ' versus 2 Executors Bar quod unus Def. obiit post Darrein continuance alter placitat ' plene Administravit Repl ' quod Defendents on t Assets en lour mains temps del breve purchased Issue sur ceo Idem p. 175. Al Count versus Executor sur Oblig ' simul cum alio Executore qui Utlagatus existit Bar ' quod Testator fecit istum Executorem qui Utlagatur Quodque Def. uâ—serviens Executori vendidit diversa bona pro illo computavit cum illo pro iisdem absque hoc quod Administravit aliquo alio modo prout c. Brownlow Lat. 196. Ad Narr ' versus Administratricem super Oblig ' cum Conditione ad indempnem conservand ' Quer ' esteant un Surety pur l'Intestate Bar quod Intestatus in vita sua solvit denar ' tali die juxta Condition ' sic indempnem conservavit Quer ' Et Replicatio Id. 194. Condition performed Condition fuit que Defendant permitteret le Testator ses Executors c. a depasture 200 Oves Repl ' que Defend non permitterer Rejoynd Issue sur le permission Rob. Ent. 182. Breach assigned quod nec Testator nec Executores solver reddit ' deb ' ad tale tempus Rejoynd quod Testator in vita sua solvit Id. 200. Per Administrators DEfend ' pled ' Recogn ' en Chancery al Estranger Scire fac ' sued versus â—Intestate retorn ' que fuit mort anter Scire fac ' sued versus Def. come Administrator qui appiere plede pleinment administer Issue Assets trove al 44 l. Judgment sur ceo Repl ' quod le Recogn ' fuit satisfied per Defend ' mes satisfaction ne f uit conus devant le Plaintiff ad purchase son Original al intent a defrauder Et Demur ' inde Winch. Entr. p. 245. Bar per Administrator un E. port Action versus luy sur Obligation super que il confesse Judgment Id. 247. Bar per several Judgments en le Sheriffs-Court London un Det reteyned Det assigned al Roy. Male Plea pur duplicity Id. 257 258. De Servientibus Apprenticiis QUer ' retinuit servien ' pro 5 annis solvit ei 20 l. annuatim pro salario in manibus al Obligation sur Condition de repayer sur mort ou departure sans notice d'un quarter d'Ann devant discharge Bar quod Quer ' posuit servien ' è servitio sine notitia quarterii Anni Repl ' â—d tali die dedit notitiam c. 1 Brownl Quod quor ' tali die posuit Apprenticium è servitio usque quem diem performavit omnes conditiones Repl ' protestando c. pro placito quod Apprenticius recessit è servitio Traverse quod Quer ' posuit eum è servitio Hern 272. Obligation ove Condition de fideli servitio fiend ' per Apprenticium Lond ' Bar per Custom quod Indenture Apprenticiat ' non Irrotulat ' sunt vacue Repl ' per nul tiel Custom Breve inde agard Co. Ent. 144. Bar per release fait al Apprentice 3 Lâ—on 45. Bar quod performavit les Covenants Breach assigned pur Moneys purloyned Tompson 183. Al Oblig ' cum Conditione pro performatione Conditionis in Indent ' Apprentis ' Def. placitat clausulam in Stat. de Anno 5 Eliz. Rob. Ent. 193. De Apprenticiis SUr Obligation a performer Covenants d'un Indenture de Apprenticeship Bar que ne fuit prove quod l'Apprentice consumpsisset secundum formam Conditionis Repl ' que l' Apprentice serve luy à tali die usque talem diem infra idem tempus recieve bona Magistri infra terminum praedict ' eux consume que l'Apprentic per scriptum suum cognovit se consumplisse c. que Plaintiff done notice de ceo al Def. que il ne fait satisfaction deins 3 Moys sucundum formam eandem Def. Demur generalment Winch Ent. 168. the Case of Gold and Death Oblig ' to perform Covenants in an Indenture of Apprenticeship Bar that the Apprentice died and a just Account was made by him before his Death and that he never departed from his Service Repl ' that the Apprentice made his Account and omitted 60 l. by him received of one R. of the Plaintiffs Monies