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
' its ill and per Curiam the Action for the Debt depending in this Court cannot be Attached 3 Leon. 210. After Imparlance Foreign Attachment not to be pleaded 3 Leon. 322. Babington's Case The Defendant pleads to Debt on Bond of 80 l. that the Plaintiff pendant the Bill brought against him a Plaint in London and there by Custom had attached 40 l. of a Debt due to the Defendant in the hands of J. S. in satisfaction of 40 l. due on this Bond and demanded Judgment of the Bill Per Cur. it s a Plea in Bar and not in Abatement for the Plaintiff for this part is to be barred for ever and this receipt of parcel is lawful and a Recovery in Law Aliter of a bare Acceptance Cro. Eliz. p. 342. May and Middleton The Debt follows the person and it s therefore called a Foreign Attachment because let the Debt rise where it will its attachable if the Debtor cometh or the Mony be brought into London 2 Keb. 320. Mollam and Hern. W. was bound to K. in a Recognizance of 400 l. and K. was bound to W. in a Bond of 100 l. W. according to the Custom of London affirmed a Plaint of Debt in the Guild-Hall against K. upon the said Bond of 100 l. and attached the Debt due by himself to W. in his own hands and now K. sued Execution against W. upon the Recognizance and W. brought Audita Querela and it was allowed 1 Leon. 297. Wallpool and King An Obligation for an 100 l. on Condition to pay 50 l. before the 25th of March. The Defendant pleads a Foreign Attachment of the 50 l. the 17th of February in the hands of Watts and a Retorn that it was attach'd but there was no Scire facias till April after Before the day of payment a Creditor of the Plaintiffs scilicet c. attaches the 50 l. and gives Security in the Court according to the Custom to pay the Debt if it be disproved within the year and day The Plaintiff demurs as being no sufficient Attachment being before the Mony was due The custom of London is to attach a Debt before its due contrary to 3 Cro. 184 yet it may not be levied till after the time of payment of the Obligation there is only a seizure and a Cesset Executio till the Mony be due Also the party against whom the Execution is sued is not to give Security but to pay the Mony but the party that sueth the Execution is to give it to return the Mony if the Debt be disproved within a year and a day Also the Judgment had there is pleadable Also per Cur ' its a good Bar for the whole but if it were for part as 20 l. this Record of the Attachment shall be pleaded in Bar for part i. e. pro tanto Siderfus p. 327. 2 Keb. p. 202. Robins and Standard Vide Co. Intr. 142. Ra. Entr. 158. Pleading to the Jurisdiction IN Debt on an Obligation in the Palace-Court averring neither of the parties were of the King's Houshold After Judgment on Non est factum the Defendant assigns for Error that the Plaintiff was the King's Brazier To which the Plaintiff demurred because the Defendant by the Record is estopt to say that but should have taken Issue on the Averment Which the Court agreed as on alledging a Cause infra that was out of the Jurisdiction this must be pleaded and cannot be assigned for Error 3 Keb. 372. Newnan and Rivet Condition to deliver a certain quantity of Tin at a certain place within the Jurisdiction of the Stannary And the Defendant pleaded to the Jurisdiction of the Court that it was a Tin Cause The Charters are to the Cause and shall not be restrained to persons though the Defendant be not alledged in the Plea to be a Tinner It was allowed 1 Rol. Rep. Pinson and Smale Obligations Conditions Recovery pleaded in Bar. THree are bound pro toto in solido the Obligee had Judgment to recover against one of them and afterwards sues an Action against the others this Recovery is not a Bar because no satisfaction of the Duty but Execution is a good Plea 4 H. 7. 8. b. Co. Rep. 6.46 a. Higgin's Case As long as Judgment remains in force a man shall not have an Action on the same Bond for the Debt is changed into a higher nature of Record Cro. El. p. 817. Preston's Case An Action of Debt brought by the Executor on Bond made to the Testator The Defendant pleads that the Testator in vita sua in Curia de Banco hic recuperavit debitum praedict ' cum 40 s. pro misis without alledging the Execution quod quidem Recordum recuperationis was removed per breve d'Error ibid. remanet minimè reversat ' The Plea was good 6 Rep. 44. Higgin's Case Aliter if Recovery be by Debt sur Bond in the Courts per Justices Ibid. And though the Recovery be erroneous yet so long as it remains in force it ought to be executed and when it is Reversed the Obligee is restored unto his new Action upon the said Obligation Ibid. If a man bring Debt upon Bond and he is barred by Judgment so long as the Judgment stands in force he cannot have a new Action So when he hath Judgment in an Action upon the same Bond so long as the Judgment remains in force he shall not have a new Action Ibid. The Defendant pleads the Plaintiff brought another Action upon the same Bond in London to which the Defendant there pleads Non est factum and so found there And upon this Verdict the Entry was That the Defendant should recover Damages against the Plaintiff and the Defendant be without Day but no Judgment that the Plaintiff Nil capiat per Billam And so per Cur ' no Judgment to bar the Plaintiff 1 Brownl p. 81. Levet and Hall Vid. 7 Cro. Jac. p. 284. Debt sur Bond of 600 l. vers K. in Bristol The Defendant pleads a Recovery in B. R. upon the same Bond against the same Defendant per the Plaintiff Et hoc paratus est verificare The Plaintiff Replies Nul tiel Record unde petit Judicium debitum suum praedict ' sibi adjudicari The Defendant Rejoyns Quod habetur tale Record ' prout per Record ' in B. R. apparet Per Cur ' he that will joyn Issue sur Record ought to say Et hoc paratus est verificare prout per Recordum illud vel verificare prout Curia hic consideravit and so are all the Presidents yet in Error Judgment was affirmed for the Defendant in the Writ of Error and that the first Judgment should be affirmed notwithstanding it was prout per Record ' illius plenius liquet Siderfin p. 329. Knight and Pitt Vide 2 Keb. 250 278. Two were joyntly and severally bound In Debt brought the Defendant pleads the Plaintiff recovered against the other the same Debt and had Execution It s a good
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.
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
Obligation it is void 14 H. 4.30 Feme IF a Feme Covert make an Obligation it is void 14 H. 4.30 and she shall plead she was Feme Covert and conclude issint non est factum because it is void But an Infant shall not do so because his Bond was only voidable and he shall conclude Judgment si actio 1 H. 7. 15. Donn's Case Vid. pluis postea sub tit plead non est factum Debt brought against J. S. and Elianor his Wife upon Bond made by the Wife Defendant pleads quod tempore confectionis and shews the day she was Feme Covert The Plaintiff confesseth this but saith she sealed the same Deed the same day of her marriage before the Espousals in the morning Defendant demurs The Plaintiff had Judgment 2 Rolls Rep. 431. Jackson's Case Debt on Bond by Baron and Feme The Defendant pleads the Wife had another Husband living The Plaintiff replies the Wife ad annos nubiles disagreed to the former marriage and good Moor n. Warner and his Wife versus Babbington Feme Obligor of full age takes Baron within age in Debt on Obligation they pray his age but denyed Noy p. 69. Infants IF an Infant make an Obligation this is not void but voidable If an Infant seal a Bond and he be sued thereon he cannot plead non est factum but it must be avoided by special pleading and conclude Judgment si actio for the Bond was not void but voidable 5 Rep. 119. Whelpdale's Case 1 H. 7.15 Donn's Case Vid. postea An Obligation or Covenant of an Infant for his Apprentiship shall not bind him neither at Common Law nor by the words of 5 Eliz. yet the Indenture shall bind him because he is compellable Yelv. 225. contra Octogenta libris with Condition of payment of 40 l. it was adjudged good for octogint though it is minus Latinum 10 Rep. 133. Fitzhughes Case cited in James Osborns Case Hob. p. 19. contra The Record of this Case is set forth at large in Hobart but there is no mention of the Condition the Obligation was in septungenta libris with Condition of payment of 350 l. and good 10 Rep. 133. cited in James Osborns Case so in vigint libris this is a good Obligation for 20 l. in Osborus Case If a Man be bound in quingint duabus libris this is a good Obligation for 52 l. the Condition being for the payment of 36 l. it cannot be taken for 500 l. because it is not gentaâ— but it shall be taken as an abbreviation of quinquagint this was adjudged upon a special Verdict where the Plaintiff declared upon a Bond de quinquagint duabus libris and the Defendant pleaded non est factum Cro. M. 11 Jac. 416 418. Downs and Haithwait A Man is bound in octogesimo libris pro octogint libris its good 2 Rolls Abr. 147. Moor n. 1123. 1 Brownl 60. Vernon and Onslow in quinquagessimis libris pro quinquagint libris good being all of one sense so fiftieth and fifty pounds Cro. M. 9 Jac. Els and Clark Debt upon a Bill Obligatory for thirty two pounds and upon Over of the Bill it was threty two pounds adjudged pro quer ' Cro. Jac. 607. Hulbert and Long. The Obligation was in centem libris and upon non est factum pleaded on a special Verdict the question was whether it was his Deed or not because it was centem for where a Deed is void non est factum is a good Plea but adjudged it was all one with centum and the Condition shewed it to be an 100 l. Stiles Hill 1653. fol. 438. Yorkhurst and Scot. One is bound in vigint nobulis its good 2 Rolls Abr. 146. Cro. Jac. 203. 1 Brownl 95. Durchin and Vaughan Debt is brought for 600 l. on Bond on Oyer it was sexagint for this Variance the Defendant demurs per Cur. this Obligation doth not warrant the Declaration because it is another Sum and cannot be taken for sexcent Cro. M. 5 Jac. fol. 203. Greggs Case One is bound in sexgint libris for sexcent libris this is not good it s not a Latin word Yelv. p. 105. 2 Rolls Abr. 147. Grey and Davis In terengentate liberis its a void Bond for both words are insensible Cro. M. 18 Jac. 603. Hills and Cooper In quint aginta libris is ill but there is a good remedy in Equity on this mistake 3 Keble 644. P. 28 Car. 2. Strange and Greenhill Note There is a difference when the Condition is to pay a Sum of Mony for then the intent of the Sum may more easily be collected ut supra and a Condition to do a Collateral Act. Debt on Bond de quingent libris Defendant demands Oyer and it was in quemquegent libris the Condition was to do a collateral Act Defendant pleads an insufficient Plea and the Plaintiff demurring thereon prayed his Judgment but because the Plaintiff had declared upon a Bond that appeared to be variant and the word was insensible and had not any other thing to expound it per Cur. the Obligation was void and Writ shall abate Hill 4 Jac. p. 146. 2 Rolls Abr. 146. Yelv. 95. Parry and Dale So A. is bound in a Bail Bond pro quadragent libris the Plaintilf declares pro quadragint libris for this variance Defendant demurs to the Declaration per Cur. genta refers to centum and so it s rather 400 l. than 40 l. and the Condition being collateral doth not shew the intent of the Parties adjudged against the Plaintiff Stiles p. 241 257. 2 Rolls Abr. 147 148. Feilder and Tovey So Condition to appear was novemgint for honagint and the Defendant pleaded in Abatement 3 Keble 255. Scots Case An English Bill is made seâ—teen for seventeen pounds and adjudged good in 10 Rep. 113. James Osborns Case Tenerie firmit Obligarie yet good Yelv. 193. Dodson and Keyes In viginti litteris for libris its void Partrose's Case cited in Cro. Jac. 603. Cooper and Hills Case But the Attorny who made the Bond was committed to the Fleet for Knavery In viginti lib'is with a dash it s an insufficient Bond liba signifies a Cake and the dash doth not help it Noy p. 109 Shetâ—et and Mallet One is bound in viginti liveris for libris it is not good Cro. Jac. fol. 203. cited in Durchin and Vaughans Case A Man is bound in an Obligation in libris without saying how much it s a void Obligation Yelv. p. 225. in Loggins and Tethertons Case An Obligation was made for the payment of 10 l. 8 s. and 8 not saying pence Action of Debt lies for the 10 l. 8 s. 1 Brownl Rep. p. 61. Obligation to pay 5 l. puri auri i. e. fine gold Quaer 9 H. 7.6 In respect of the Frame of the Obligation or Bill NOte the Opinion in Yelverton Dodson and Key 's Case p. 193. When the parties and the sum are well expressed to the Conusance of the Judges such words by which the
party doth intend to bind himself shall serve Memorandum That I Ben have received 20 l. of C. which 20 l. I Ben. promise to pay to D. in witness whereof I have hereunto set my Seal this is a good Obligation 22. E. 4.22 cited in Roll. 2. Abr. 146. If it be I shall pay to you 20 l. In witness c. I put my Seal it s a good Obligation 22 E. 4.22 So these words Concedo vobis c. makes a good Bond 22 E. 4.22 Hatley's Case If a Man by his Deed say that I owe to C. 20 l. to be paid at Easter next or I had of C. 20 l. of which I owe him 10 l. or to be repaid him again or I A. B. do bind my self to C. that he shall receive 20 l. and such like these are all binding Obligation was made in such manner Be it known to all Men that I doe owe unto Oliver 26 l. to be paid such a sum at Michaelmas and such a sum at Lady-day and in truth the particular Sums do not amount unto 26 l. this was not a good Obligation for 26 l. Rolls 2 Rep. Tr. 18 Jac. B. R. Oliver's Case If A. acknowledge by a Bill Obligatory himself to owe 10 l. to B. to be paid at a day to come and by the same Bill binds him and his Heirs in 20 l. and saith not to whom he is bound yet it is good and it shall be intended to be bound to B. adjudged upon demurrer Rolls 2. Abr. tit Oblig p. 148. Franklin and Turner Obligation was written in this form Know all Men c. that I H. W. am bound to W. Gore c. in the Sum of c. for the payment of which Sum I give full power and authority to the said Gore to levy the said Sum upon the profits of c. until the same be paid Defendant pleads the Plaintiff had levied part of the said Sum and shews not how ill Plea Per Curiam the Plaintiff may at his liberty bring his Action upon the said Obligation or levy the said Monies according to to the Clause aforesaid 3 Leon. fo 223. Gore and Winckfeild An Obligation of 200 l. to two Solvend the one hundred pound to the one and the other to the other it is a void Solvend 18 Eliz. Dyer 350. Hob. p. 172. in Stukeley's Case yet Brownlow seems contra 2 Rep. p. 207. Obligation to two solvend 10 l. to the one and 10 l. to the other both ought to join in Debt on this Obligation But an Obligation made to three solvend to one of them is good Memorandum I John B. have agreed to pay J. S. 20 l. though it be in the Preterperfect Tense and wants the word In cujus rei testimonium yet is a good Bill 1 Leon. p. 25. Bedowes Case And per Wray dedi concessi are used as words of a present Conveyance This Bill witnesseth that I R. S. have received of T. P. 40 l. to the use of Robert and Jane Shaw Children of c. equally to be divided between them which Sum I confess to have received to the uses aforesaid and the same to repay again at such a time as shall be thought best for the profit of the said R. S. and J. S. R. S. dies intestate his Administrator brings Debt for 20 l. and counts that the Defendant by his Bill Obligatory shewn in Court acknowledged se recepisse 20 l. of T. P. to the use of the intestate solvend at such a time quod videtur opportunum pro proficuo of R. S. the intestate and shews that at such a time videbatur opportunum c. and he demanded it Upon Oyer the Defendant demanded Judgment of the Writ and Count as not warranted by this Bill per Curiam 1. This is a good Bill Obligatory and shall be intended to be delivered to the use of the Plalntiffs intestate the Plaintiff hath supposed it in his Declaration and the Defendant hath admitted it otherwise he ought to have pleaded non est factum 2. The Receipt of this Mony shall be made to R. S. and J. S. and not to T. P. 3. It is as several Bills of 20 l. apiece and are divided Debts by the words equally to be divided and so shall not survive Crook M. 41 Eliz. fo 729. Shaw and Sherwood Be it known c. I Tho. J. do bind my self to J. M. to pay unto him all such Monies as my Brother owes him In witness c. And in the end of the Bill was written that Will. the Brother of Tho. J. owed to M. 40 l. with this Averment in the Declaration it is a good Bill and Action lies for it is reduced to a certainty Crook Eliz. p. 561. Morgan and Johnson and yet p. 758. dubitatur Be it known that I Tho. D. do owe unto A.B. 50 l. to be paid him 10 l. at such a day and so at five several days 10 l. until 50 l. were paid and for payment hereof I bind me c. in 10 l. nomine poenae Obligee after five days past brings Debt for 50 l. and good for it is a several Bill for the 50 l. and a Bill also for the 10 l. Crook El. p. 771. Anonymus Memorandum I do owe and promise to pay to A. 10 l. at any time after the Feast c. when she shall require it for payment whereof I bind my self c. to J. H. by these Presents It is a good Bill to A. by the words of the first part and the words which oblige him to J. H. are void Crook Eliz. 886. Hardman's Case Bill Obligatory written in a Book with the Defendants Hand and Seal to it good Crook Eliz. p. 613. Fox and Wright Be it known that I do owe unto P. 14 l. to be paid at c. together with 6 l. which I owe him upon Bill and Recognizance subscribed under my Hand Plaintiff brings Debt for 20 l. and adjudged against him because the Bill made him Debtor only for 14 l. Moor n. 670. Parry and Woodward The Defendant by Deed acknowledged he had received of T. 40 l. to the use of his Master to be paid at Michaelmas following and sealed it In Debt the Defendant demurs supposing this was only a Deed testifying the Receipt to anothers use and not to charge himself Curia contra for the Clause of the repayment is general Aliter If the Bill had recited the Repayment to be made by the Master then it had been but a Receipt and meerly to anothers use Yelv. p. 137 147. Talbott and Godholt Now I shall put a Case or two how words written in a Bill after the In cujus rei Testimonium shall be expounded whether as parcel of the Bill or not My Lord Cook in Hamond and Jethro's Case 1 Brownl Rep. 59. held that whatsoever comes after these words In witness c. is no part of the Bill but may be a Condition and must be pleaded and not demurred
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.
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
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
taken in Execution H. the other Bail gave him Security for the Mony and in consideration thereof the Plaintiff promised H. that he might take out Execution against the other Defendant and that he would not release him without the consent of H. whereupon H. procured him to be taken in Execution and he then moved the Plaintiff to discharge him who acquainted him with the promise made to H. at supra thereupon the Defendant made him this Bond and conditioned prout so he discharged him and H. brought an Action upon the Promise and recovered 150 l. damage and so damnificat the Defendant demurred Judgment pro Quer. this is a Breach for by the word damages is not only intended damages which arise directly by the Release but to any other collateral Act dehors as is this promise Hob. p. 269. Wilden and Wilkinson 1 Rolls Abr. 431. id Case vid. 1 Rolls Abr. 422. id Case Condition is to perform an Award which was That the Obligee staret acquietatus de qualibet materia contained in a Bill in Chancery which the Obligor had depending against him and that the said Suit shall cease and after the Obligor exhibits a new Bill in Chancery against the Obligee for the same matter and in the end of the Bill prays Process but never takes out Process thereon against him this is not any such molestation as shall be a forfeiture of the Condition for he is not at any damage by this P. 12 Jac. 1 Rolls Abr. 432. Freeman and Sheâ—n A. and B. are bound in an Obligation to perform certain Covenants contained in an Indenture and one is to pay Mony and C. covenants with A. and B. to save them harmless of all things contained in the same Indenture and after the Mony is not paid according to the Indenture by which the Obligation is forfeited yet C. is not bound to save them harmless of the Obligation for this is a collateral thing to the Indenture M. 5 Jac. 1 Rolls Abr. 432. Scot and Pope versus Griffin A Condition recites That the Plaintiff at the request of the Testator was bound in 2000 l. to the Commissioners of the Excise and if the Testator acquit and discharge or sufficiently save harmless from all Suits Troubles c. concerning the said Bond then c. the Defendant saith there were no Suits the Plaintiff replies there was a So. Fac. out of the Exchequer and he was forced to retain an Attorny and give him 3 s. 4 d. the Defendant demurs because no notice of the Suit is given to the Defendant per Cur. there needs no notice 2 Keb. 529 609 642. King and Atkins Cro. El. 613. Fox and Wright The Defendant is Security to the Plaintiff for payment of Mony as separate Maintenance to Williamsons Wife the Breach assigned is that Williamson brought an Action sur Case against the Plaintiff on his promise to pay so much if the Defendant now who was then Plaintiff would remit the rest It s a Cheat and the Defendant iâ— not bound to secure the Plaintiff 2 Keble p. 106. Campian versus Skipwith Counter-bond writ in a Book and good Cro. El. p. 613. Fox and Wright If the Condition be to save harmless from such a thing this doth not extend to Actions in which he might have lawful defence without the Obligor 2 H. 4.9 A Condition to save harmless from J. S. if J. S. after saith to him that if he will go to his House he will beat him by which menace he dares not go to his House about his Business the Obligation is forfeited 18 Ed. 4.28 To plead he had saved the Plaintiff harmless and not to shew how is ill Stiles p. 219. Shertliff vers Timberly Allen 72. Ellis and Box. If it be that from time to time he hath saved him harmless it s well enough Stiles p. 353. M. 1652. Bond and Martin But in Condition to save harmless from Escapes the Defendant pleads he had saved harmless but saith not how and the Plaintiff demurs generally Per Cur. its ill on special demurrer but aided by general demurrer 2 Keble 629. Henshaw and Warren 3 Keble 198. Fletcher and White To discharge and save harmless Qu. if any difference on Mansers Case 1 Keble 379. Morgan and Thomas In such Cases the Plaintiff ought to plead non damnificat for that he hath saved him harmless doth imply he was damnified Ibid. A Condition was to save the Obligee harmless of a Nomine poenae against M. To plead he had saved him harmless and not to shew how is not good had he pleaded non damnificatus in the negative it had been good Winch. p. 9. A Condition to keep a Parish harmless from a Bâ—stard Child the Defendant pleads he had saved the Parish harmless but shews not how the Plaintiff replied That the Parish was warned before the Justices of the Peace at the Sessions and was there ordered by Record to pay so much for the keeping of the Child the Defendant pleads nul tiel Record the Plaintiff demure 1. The Plea of nul tiel Record is a good Plea because an Order of Sessions of Peace is a Record 2. Judgment pro Quer. because the Defendants Bar is ill in that he hath pleaded in the affirmative and shews not how Non damnificatus had been good and it is not helped by demurrer it being matter of substance March 121. n. 200. Anonymus A Condition to save harmless from all Obligations which he had entred into for him the Defendant pleads quod exoneravit indempâ—em conservavit from all the Obligations and shewn not from what and yet good because there might be many and so to avoid perplexity of pleading and because he pleaded not quâ—modo exoneravit but generally the Plea was ill Cro. El. p. 916. Braban and Bacon A Condition to save the Parish harmless of a Bastard Child vide the Form the Defendant pleads non damnificatus the Plaintiff replies That the Defendant nor any other for the space of a month provided for the Child wherefore the Parish paid 40 s. for its Maintenance the Defendant rejoins he offered to maintain the Child at his own Charge and the Parish refused to permit him Et hoc paratus c. this rejoinder is ill because it is a departure 〈◊〉 he ought to have pleaded this first in his Plea 2 Sander … 〈◊〉 Siderfin p. 444. 2 Keble 219. Mod. Rep. 45. Richards and Hodges Counter-Bonds Sureties IF the Condition be to discharge another against J. S. of an Obligation wherein he is bound he ought to discharge him of the Obligation by Release or otherwise and it is not sufficient to save him harmless 22 Ed. 4.40 b. The Defendant pleads non damnificatus the Plaintiff replies the Mony was not paid at the daâ— per quod the Plaintiff became onâ—rabilis and d … st not go about his Affairs the Defendant rejoins that the Mony was tendered and refused absque hoc that the Plaintiff was
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
Plaintiffs Executor dyed after the making of the said Bond and before the said Feast viz. c. The Plaintiff demurs and Judgment for the Plaintiff 1 Brownl Rep. 7â— Horn and May. In many Cases Endeavour shall excuse The Condition was to enfeoff Baron and Feme of Land if Baron die if he do it as near as he can it is good 15 H. 7.2 13. If there be an indifferent construction which may be taken two ways that way shall be taken which is most reasonable to make the Obligation to stand in force The Condition was that whereas the Defendant had granted an Annuity to the Plaintiff that the Defendant should make farther assurance to the Plaintiff for the enjoying thereof within one Month when he should be thereunto required Per Cur. the Month shall be after the Request and not within a Month after the date of the Bond Stiles p. 242. Wentworth versus Wentworth A Man shall be supposed by the Condition to do what properly belongs to him The Condition of the Obligation was that the great Bell of M. should be carried to the House of the Obligor in W. at the Costs of the Men of W. and there to be weighed in the presence of c. and of this the Obligor to make a Tenor to agree in tonâ— sono with the other Bells of M. In this Case the Obligor ought to weigh this for it belongs to his Occupation 9 Ed. 4.3 b. 1 Rolls Abr. 465. If a Man be bound to carry my Corn he must find a Cart so to mow my Grass he must find Instruments so to cover my Hall he is bound to find necessary Stuff 16 H. 7.9 A Man may be said to forfeit a Condition if he do what in him lies to break it or if he do such an Act which may consequently produce a Forfeiture though in strictness it be not broken by him A Condition not to devise a Lease to any person but to his Child or Children and he deviseth this to a Stranger the Executor never consents to the Devise yet this is a Forfeiture for he that had done all that was in his power to pass this by Will and put it in the power of the Executor to exeâ—ute it 1 Rolls Abridg. 428 429. Burton and Horton The Condition is that the Grantee of a Reversion shall not grant this over to J. S. If he grant the Reversion to J. S. by his Deed though the Lessee never attorn yet this is a Forfeiture Id. ibid. A Condition not to assign his I ease that so it may come to J. S. and after he assigns this to J. D. the Condition is broken for as much as by this means it may come to J. S. 1 Rolls Abr. 429. Cummin and Richardson Where a Condition of an Obligation shall be expounded by a matter debâ—rs The Condition was to save the Plaintiff harmless from all Actions and Damages that might arise upon the Release of the Defendant out of the Execution being then in Execution at the Plaintiffs Suit from all persons that might trouble him concerning the said Release The Defendant pleads the Plaintiff sued one N. for 100 l. and that he and Hart became his Bail and that the Plaintiff had Judgment against N. and the Bail and the Defendant was taken in Execution and thought the Plaintiff released him c. The Plaintiff replies and confesseth the Bail and Judgment but saith that Hart gave him Security for his Mony and the Plaintiff promised H. he might lay the Execution on the Defendant and that he would not release him sans consent of H. on which H. procured him to be taken in Execution and moved the Plaintiff to discharge him who aâ—quainted him with his promise to H. ut supra and thereupon the Defendant made him this Bond and so he discharged him H. brought an Action against him for Breach of Promise and recovered 150 l. damages and so he was damnified The Words are apparent to save harmless from some damage that might arise not upon the Release alone but upon some collateral thing besides the Release and yet by means and occasion of the Release Hâ—bart p. 269. Wild and Wilkinson Expositions of Words Sentences and References in Conditions During the Time THE Condition was whereas the Lord A. had deputed T. J. to be his Deputy Post-Master to execute the said Office from c. for the term of six Months following Now if the said T. J. shall and do for and during all the time that he shall continue Deputy Post-Master execute and pay such Mony c. Per Cur. the Condition refers to the Recital only whereby the Defendant was bound only during the six Months and no longer and the indefinite time shall be construed during the six Months 2 Sanders 413. Lord Arlington and Merrick Condition faithfully to execute the Office of and quarterly to make Accompt of all Monies by him received c. and pay all Monies by him received and do Accompt such times as he shall he reasonably required The Defendant pleads performance to all but the Accompt and for that he saith he was never reasonably required to do this Per Cur. this Clause being reasonably required goes only to the payment of the Mony bring the last antecedent and the Accompt is limited to be made quarterly Lit. Rep. 101. The King and Points Then living The Condition was if it happen the said J. M. to dye before the Feast of c. without Issue Malâ— of her Body by R. B. begotten then living that the Obligation shall be void The Defendant pleads post confectionum obligationis and before the said Feast the said J. M. dyed sans Issue Male of her Body then living The Plaintiff replies she had Issue H. B. and before the said Feast J. M. dyed the said H. B. then living and that H. B. dyed before the said Feast Per. Cur. the Plea is good the words then living shall not refer to the time of J. M. death but to the Feast mentioned in the Condition 1 Anderson Bold and Molineux Payments A Condition to perform all Covenants Payments and Agreements contained in a Deed Poll. The Defendant pleads the Deed Poll in haec verba in which was contained one Grant of Lands for 100 l. and 200 l. to be paid in which was a Proviso If the Defendant should not pay for the Plaintiff to one J. S. 40 l. at such a day the Bargain should be void The Defendant pleads performance of all Covenants the Plaintiff assigns a Breach in not payment of the 40 l. The Defendant demuâ— Judgment pro Defendente The word payment in the Condition shall have relation only to such payments mentioned in the Deed as is compulsory to the Defendant but this was not for the Defendant may if he will forfeit his Land 1 Brownl Rep. 113. Briscoe and King Condition to pay when the Kings Majesty shall be Restored by Conquest Accomodation or otherwise the difference
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
Beston and Buller Mainprise or Recognizance may be taken before an Action brought where the Cause is removed by Habeas Corpus and so is the course in B. Com. The usual and best course to remove the Record is by Mittimus out of Chancery Cro. Jac. p. 97. Hargrave and Rogers Judgment is given in B. R. against the principal and afterwards by Scire Fac. against the Bail Principal and Bail cannot join in a Writ of Error upon these several Judgments and the Bail cannot have a new Writ of Error by himself Quod coram vobis residet because the Scire Fac. is none of the Actions wherein the Writ of Error is given in the Exchequer Chamber Hobart p. 72. Forrest and Sir James Sandland Judgment is in Scire Fac. which is a Judicial Writ and it is not expressly named in Stat. 27. Eliz. Yel p. 157. Prowse and Turner Judgment is given in the Scire Fac. upon the Recognizance Error was brought upon that Judgment and the Judgment affirmed Afterwards a Writ of Error was brought upon the principal Judgment which was reversed hereupon Audita Querela is brought Per. Cur. the first Judgment reversed is no reversal of the Judgment in the Scire Fac. because it is a collateral Judgment by it self yet it is a good cause for Audita Querela for it is quasi dependent on the first Judgment and the first Judgment is the cause that he is charged by this Recognizance and it s but reason the Bail should have remedy to be discharged from the Execution Cro. Jac. p. 645. Sir John Apsley and Ive 2 Roll. Rep. 354. Legris Case Action was for 23 l. 18 s. The Bail on Recognizance was 23 l. 18. Judgment against the principal and Scire Fac. against the Bail for 23 l. 10 s. it was held Error for this mistake Cro. Eliz. p. 855. Kilborn and Trot. Judgment was given in Scire Facias against the Bail that the Plaintiff shall recover super recuperationem praedictam where it should be super recognitionem praedictam No Writ of Error lyes in Exchequer Chamber Causa qua supra neither in this Case in the Kings Bench for this is no Error in process i. e. where one process is taken for another but the Error is only in point of Judgment and no remedy but in Parliament Yel p. 157. Prowse and Turner D. brought a Writ of Error in Camera Scac. and found Sureties to prosecute with effect and for default a Scire Fac. was brought against him who appears and is in Execution Qu. If the Bail be discharged by the appearance of the Plaintiff in the Writ of Error 1 Rolls Rep. 361. Asker and Downs Mainpernors were in Action of Debt pro damnis misis and Scire Fac. issueth de debito damnis and Judgment against the Mainpernors and now a Supersedeas quia erronice fuit for they were not Sureties pro debito Dâ—ddrige ye are put to Aud. Quer. 2 Rolls Râ—p 431. Cola and Yarnon Scire Fac. against Bail upon 3 Jac. c. 8. in a Writ of Error the Defendant pleaded that the Principal did prosecute with effect and that the Judgment was reversed he ought to plead prâ—â—ret per recordum and not hoc paratus c. 1 Keb. 185. Maire and Spencer and p. 318. Borâ— and Hammond The Bail pleads the Recognizance was on Condition to prosecute Error and alledgeth performance the Plaintiff shews that Judgment was affirmed prout patet by Record and saith not unde petit debitum or executionem this being specially alledged as form in demurrer is ill 2 Keb. 581. Barret and Millward In Bail upon a Writ of Error upon the Staâ—e of 3 Jac. c. 8. It s not sufficient to render the Body but he ought to pay the Debt Cro. Jac. p. 402. Austen and Monk The not assigning of Errors is a breach of the Recognizance to prosecute with effect according to the Statute 16 and 17 Car. 2. c. 8. Siderfin p. 294. Cooper and Price But if the Party will come in and tender the principal Debt and Costs the Court will relieve him and not suffer the Plaintiff to take Execution against both and no â—stitution shall be of this Mony on this Recognizance in Case the Plaintiff do after assign Errors 2 Keble 75. Cooper and Price Scire Facias on Recognizance on 10 and 17 Car. 2. c. 8. to prosecute a Writ of Error returnable 6 May in East-Term the Defendant pleads that 〈◊〉 died 18 August and that until his death he prosecuted with effect the Plaintiff replies that the Defendant did not cause the Record of B. R. to be certified into the Exchequer-Chamber in his life-time the Defendant rejoins he was stopt by Injunction in Chancery Per Cur. the Recognizance is not forfeited 2 Keble 53 70. Hâ—chman and Corbet If one of the Principals renders himself this is no discharge of the Bail vide 3 Keble 766 776. Astree and Ballard Defeasance the notiâ— of it It signifies to defeat or undo THere is a diversity between Inheritances executed and Inheritances executory as lands executed by Livery c. cannot by Indenture of Defeasance be defeated afterwards so if a Disseisee release to a Diffeisor it cannot be defeated by Indenture of Defeasance made afterwards but at the time of the Feoffment Release c. the same may be defeated but Rents Annuities Conditions Warranties and such like Inheritances executory may be defeated by Defeasances made either at that time or any time after Co. Lit. p. 237. â— And so may Statutes Recognizances Obligations and other things executory And of Statutes Judgments and Obligations it is the usual practice to make a Defeasance of them afterwards A Defeasance is a conditional Release and a Release is an absolute Defeasance and the difference is as aforesaid between the Defeasance of a thing vested and of a thing excutory as in a Feoffment of Lands the Condition ought to be contained in the same Charter of Feoffment or in another Deed sealed at the same time with the Feoffment or otherwise the Condition is void for by the Feoffment the Estate of the Land is vested and executed 〈◊〉 the Feoffee otherwise of Judgments Obligations c. therefore the Judgment given Hill 21 and 22 Car. 2. B. R. in the Case of Fowel and Forrest was against Law it was thus Debt on Bond dated the 8th of Apr. 16 Car. 2. The Defendant after Oyer of the Condition pleads That after the making of the Obligation viz. the same day and year the Plaintiff by his Deed of Defeasance shewed forth had promised and engaged that if before the last day of J. 〈◊〉 next ensuing he should not produce Testimonieâ— to prove that the Monies mentioned in the Conditionâ— was a true Debt and that the Defendant before the making of the said Obligation had promised to pay this then the Obligation should be void c. and avers that the Plaintiff did not proâ— any Testimonies to make such proof as aforesaid
have a Deceipt presently before Execution 19 H. 6.44 cited in Hobart p. 267. The Penalty of Forging Deeds 5 Eliz. c. 14. Co. 3 Inst p. 171. When the Statute saith If any Man forge any Obligation or Bill Obligatory these must be intended to be Sealed If a man forge a Statute Staple that is acknowledge them or either of them in the name of another these are Obligations within this Act for each of them hath the Seal of the party Alitèr of a Statute Merchant or of a Recognizance because they have not the Seal of the Conusor Co. 3 Inst p. 171. Obligation of 10000 l. for the payment of 5000 l. per W. who is dead at three Months end It was suspected to be forged and on Non est factum pleaded at Trial at Bar the Testimonies were examined apart The Jury found Non est factuns but the Obligation shall not remain in Court but be delivered to the Plaintiff Siderfin 15 Car. 2. B.R. p. 131. Guillim's and Huley Forgery may be pleaded in Bar to an Obligation but it 's no Plea to say that there was an award in Chancery that the Obligation should be void for unconscionableness 37 H. 6.13 14. B. was bound in 100 l. Bond to A. for the honesty of his Son an Apprentice with A. and A. in the Obligation razeth out libra and put in marc◠This is not Forgery punishable it 's not a prejudice to any but himself for by that the Obligation is void Noy 99. Black and Allen. Where false Alterations shall be a Forgery within the Stature Co. 3 Inst p. 169. Detinue IN Detinue the Defendant pleads That the Obligor and Obligee did deliver it to him sub certis Conditionibus and he knows not whether they be performed and prays Garnishment and on Issue found for the Plaintiff It was moved in Arrest of Judgment because there was not Garnishment before the Issue and the Issue is uncertain sub certis conditionibus non allocatur it 's a Jeofail Cro. Eliz. 856. Pursand and Whityer Detinue of a Bond on non detinet it was found for the Plaintiff and Damages assessed to 7 l. and Cost 6 d. and if the Bond cannot be restored then they assessed for Damages besides the 7 l. 20 l. more the Judgment ought to be Conditional to recover the said Bond or if he cannot have the said Bond then the 20 l. and so the Distringas to the Sheriff must be to demand the Bond and if it cannot be delivered then the 20 l. for it is not at the Sheriffs choice therefore the Distringas Vic' for the said Bond or 20 l. was erroneous Cro. Jac. p. 681. Peters and Heyward One Executor gives up a Bond in discharge of his own Debt and dies the surviving Executor shall not have Detinue for it Croi Eliz. p. 478 496. Kelsock and Nicholson Where and in what cases Notice is requisite to be given before the Action brought upon an Obligation and where not and by whom WHen a Man binds himself to do or perform any thing to be awarded c. by a Stranger he thereby takes upon himself to take notice at his peril of all things incident thereunto for the saving of his own Bond 8 Rep. 92. b. Frances Case As Condition to perform the Award of J. S. and J. S. makes an Award the Obligor ought to take notice thereof at his peril for that he hath bound himself thereto and no Notice is requisite to be given to him Condition to pay 20 l. within 10 days after J. S. hath rode five times in six days from London to York and from York to London he ought to take notice of the doing of this at his peril for that it is to be done by a Stranger 1 Rol. Abr. 463. Herbye and Pope Condition to pay 40 l. to B. within a year after B. shall marry C. he is bound to pay it within the year after Marriage without any Notice given of the Marriage by B. for he hath taken it upon him and he may have Notice by C. who is a Stranger to the Condition 1 Rol. Abr. 463. Shephard and Fry A. is bound to B. that A. shall pay to B. all such Monies which by a true and justifiable Bill under the Hand of B's Attorney shall appear to be before disbursed per B. or his Attorney B. assigns a breach that 24 s. by a true and justifiable Bill under the Hand of J. S. Attorney of B. appears to be disbursed which A. hath not paid This is a good Breach without alledging that A. had Notice of this or that the Bill was shewed to him for the Attorney was a Stranger of which A. ought to take notice at his peril 1 Rol. Abr. 467.39 Dewell and Wilmot Bill Obligatory to be paid within 10 days after J. L. went by five days undivided from thence to London and alledges he did so licet saepius requisitus Quare If there need any Notice because the Act is to be done by a Stranger and his time of Return lies as well in the Notice of the Obligor as of the Obligee Cro. Jac. p. 150. Normanvile and Pope Condition to pay such Arrears as should be found on his Account before such an Auditor Defendant pleads he did account and was always ready to pay the Arrears if the said Auditor had given him Notice No Plea for he hath bound himself thereto and he must take notice thereof at his peril 1 H. 6.5 But Condition to Account before such Auditors as the Obligee shall Assign he ought to give Notice of them to the Obligor 8 Ed. 4. 1. b. Regularly it is not requisite to give Notice where one is bound to do an Act by Bond. Undersheriff covenants with the High-sheriff to discharge and save him harmless of all Escapes of Prisoners that should be Arrested by him or any Bailiff appointed by him and a Bond of Performance Per Curiam The Sheriff is not bound in this case either to give Notice to the Under-sheriff of the Escape or to make request for discharge for the Covenant binds him to discharge at his peril Hobart p. 14 Sir Daniel Norton's Case Condition that if the Obligee return from beyond Sea before the 22th of April next then if the Obligor pay unto him at Easter following 200 l. then c. if Obligee return within the time he is not bound to give Notice of this to the Obligor but he ought to take Notice at his peril for he hath bound himself to this Inconvenience 1 Rolls Abr. 463. Eve and Dawtry Condition to pay 10 l. at the day of Marriage of the Obligee the Obligee is not bound to give Notice to the Obligor before his Marriage at what day he will be married but the Obligor must take Notice at his peril for he hath taken upon him to pay it at the Day 1 Rol. Abr. 461. Beresford and Goodzon's Case So it is if it be at the day of the
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
other Debt 2 Keb. p. 804. Street and Buckner 1 Brownl p. 47. Lovelace's Case Stiles p. 339. Brock and Vernon More N. 1147. 2 Keb. p. 804. Street and Buckner Vid. pluis Litt. p. 58. Ene's Case 5 Rep. 44. Lord Cromwell's Case cited in Higgin's Case No though a Stranger give the Bond 1 Brownl p. 71. Hawes and Birch If Issue be joyned on the acceptance and the Plaintiff be Nonsuit Q. If this Plea be such a Confession of the Action as the Plaintiff shall have Judgment Hobart p. 68 69. B. R. Lovelace and Colket Randiff and Strutt The Defendant pleads that the Plaintiff after the day of Payment and before the Writ brought did accept of a Statute-Staple for the same Debt in full satisfaction of the Obligation It 's an ill Plea for a Statute is but an Obligation of Record and cannot drown another which is not of Record Sir R. Brainthwait's Case cited in 6 Rep. 44. b. Higgin 's Case Vid. Co. Lit. 212. b. 5 Rep. 117. b. contra Payment of a lesser Sum and acceptance in full satisfaction pleaded you may either traverse the payment or the Acceptance but it s more proper to joyn Issue upon the payment Stiles p. 239. M. 1650. Boys and Cranfield Condition to pay 10 l. to a Stranger by Michaelmass The Defendant pleads payment of a lesser Sum before the day to him The Plaintiff demurs the Plea is ill as to a Stranger 2 Keb. p. 628. P. 22 Car. 2. Chapman and Win. Debt pro 43 l. The Defendant pleads 39 l. paid before the day which the Plaintiff accepted in satisfaction The Plaintiff joyns Issue Non recopit in satisfactionem The Defendant Demurs it 's ill He should have said Non solvit 3 Keb. p. 28 Car. 2. fo 629. Percival and Colthowe The Defendant pleads the Condition was to pay a lesser Sum at a day and that before the day he paid in satisfaction Per Cur. It 's an ill Plea not having demanded Oyer of the Condition 3 Keb. p. 708. Mich. 28 Car. 2. Clatch The Defendant pleads That the Plaintiff before the day accepted a lesser Sum in full satisfaction of a greater It is a good plea but then he must plead he paid that lesser sum in full satisfaction and that the Plaintiff received it in full satisfaction Pinnel's Case 5 Rep. 117. More N. 847. Penny and Cote For the manner and tender of Payment it shall be directed by him that made it I am bound to pay you 10 l. at Westminster and you request me to pay you 5 l. at the day in York and you will accept it in full satisfaction of the whole 10 l. it s a good satisfaction of the whole 5 Rep. 117. Pinnel's Case Condition is for payment of 20 l. the Obligor at the time appointed cannot pay a lesser Sum in satisfaction of the whole But if the Obligee do receive part at the day and thereof make Acquittance under his Seal in full satisfaction of the whole its sufficient for the Deed amounteth to an Acquittance of the whole Co. Lit. 212. b. Pinnei's Case 5 Rep. 117. b. If the Obligor pay a lesser Sum either before the day or at another place than is limited by the Condition and the Obligee receive it this is a good Satisfaction Ibid. Not only things in possession may be given in Satisfaction but also if the Obligee accept a Statute in Satisfaction of the Mony it s a good Satisfaction Ibid. Obligor is bound to pay 100 Marks at a day and at the day the parties Account together and for that the Obligee did owe 20 l. to the Obligor the Sum is allowed and the residue of the 100 Marks paid This is a good satisfaction tho' the 20 l. was a chose in Action and no payment was made thereof but by way of Retainer or Discharge Co. Lit. 213 c. Condition to make assurance of Lands to such uses The Defendant pleads he made a Feoffment to other uses which the Plaintiff accepted Ill Plea 1 Brownl 60. Potter and Tompson Where the Condition is for payment of Mony if the Obligee accept an Horse c. in satisfaction its good But if the Condition were for the delivery of an Horse c. there tho' the Obligee accept Mony or other thing for the Horse c. it s no performance of the Condition So a Condition is to acknowledge a Recognizance of 20 l. c. if the Obligee accept 20 l. in satisfaction of the Condition yet the Condition is broken So of all other Collateral Conditions Co. Lit. 212. b. If a Condition be to pay Mony to a Stranger if the Stranger accepts an Horse or other Collateral thing in satisfaction it s no performance of the Condition for there the Condition must be strictly performed But if the Condition be that a Stranger shall pay to the Obligee a Sum of Mony the Obligee may receive an Horse in satisfaction Co. Lit. ibid. To Debt on Bond the Defendant pleads it was agreed before the Forfeiture of the Bond for 300 l. between the Plaintiff and divers other Creditors of the Defendants that the Defendant should assure divers Lands to be sold and the Mony to be paid and he assigned several sums of Mony to them which they accepted and avers in facto that he sold the Lands to them and made a letter of Attorny to them to receive the Sums of Mony The Plaintiff demurs because the Indenture sounds in the nature of a Covenant and if so it shall not be in satisfaction being in it self no satisfaction nor pleadable in satisfaction of that Debt Also admitting it had been a good satisfaction if performed yet part thereof not being performed it s no bar to this Action Cro. Car. 193. Simonds and Mendsworth A Concord or Verbal Agreement cannot discharge a Specialty As a Condition for the performance of Covenants in Articles of Agreement The Defendant pleads an Agreement between the Plaintiff and him that he should grant 5 l. per Annum for life in discharge which Grant he made and the Plaintiff accepted Judgment pro Querente being only a Verbal Agreement Cro. Jac. fo 649. Noys and Hopgood and so Cro. Eliz. pag. 697. Hayford and Andrews If the Defendant pleads before the day of payment the Plaintiff in respect of a Trespass made by his Beasts in the Defendants Lands gave him longer day It s no Plea for an Agreement by Parol cannot dispence with an Obligation Condition to pay 40 l. on Michaelmass-Eve The Defendant pleads Concord that if he gave him an Hawk and 20 l. at Michaelmass-day the Obligation should be void and avers he did so and the Plaintiff accepted it It s an ill Plea for it appeareth for Non-payment of the Mony at the day the Bond was forfeited and so became single which cannot be discharged by such naked Averment en fait of such Acceptance But Acceptance before the day had been a good Discharge Cro. Eliz. p. 46. Anonymus Condition
to pay 11 l. on the 12th of February the Defendant pleads Accord the 8th of February that if he paid 8 l. on the said 12th of February that he would accept it for 11 l. and pleads Tender at the day uncore prist Per Cur. Concord is no Plea without satisfaction Cro. M. 32 33 Eliz. Tassal and Shaw Agreement to pay part and promise to pay the rest no Plea to a Bond Cro. M. 35 36 Eliz. Balston and Baxter Had he pleaded a lesser Sum paid before the day and at another place in satisfaction of a greater sum it had been good Ibid. Condition to deliver twenty Quarters of Barly the Defendant pleads in Abatement that pendente billa that the Plaintiff had accepted fifteen parcel of the said twenty Ill Plea for it is Collateral and not parcel of the Sum contained in the Obligation and if it be a Plea it s a Plea in bar and not in abatement Cro. Eliz. 253. Doct. pla 6. Vid. pluis in titulo Payment infra Condition to make a sufficient account of all Rents Revenues c. The Defendant pleads That before the Feast he Let to the Defendant an House c. in full satisfaction of all manner of Accounts to which he agreed and entred Nul Plea Dyer 1. Case 1. Vid. pluis ibid. Payment pleaded OF payment and acceptance of a lesser Sum before the day in satisfaction of a greater Vid. supra tit Pleading Acceptance Concord c. Payment of parcel hanging the Writ is a good Plea to the Writ 5 H. 7.4.1 an Acquittance of the receipt of part hanging the Writ goes to all the Writ Et Nota Where payment is not a Plea in bar receipt pendant the Writ is no plea to the Writ Doct. placit 108. The Defendant pleads acquittance for parcel if the Plaintiff acknowledge his own Acquittance he abates the whole Writ Per Cokaine the Plaintiff shall recover all that the Defendant acknowledged and as to what he had received the Plaintiff is to be amerced 3 H. 6.48 The Defendant pleads after the day of the Writ purchased viz. such a day he paid to the Plaintiff 60 l. parcel thereof which he received Judgment of the Writ The Plaintiff demurs specially because he shewed not any Acquittance or Release testifying it Judgment for the Plaintiff Cro. Eliz. p. 884. Colbroke and Foster In Debt on a single Obligation payment without acquittance is no plea. Otherwise in Debt on Obligation with Condition 28 H. 8. Dyer 25. b. 15 Ed. 4.6 a. 33 H. 8. Dyer 50. b. 51. a. Payment with acquittance pleaded in an Action of Debt on a Bond is not double because the Acquittance only is issuable and the payment is but Evidence 1 H. 7. 15. b. If the Plaintiff by Deed had confessed himself to be satisfied of the Debt though he had received nothing yet this a good bar 30 H. 6. tit Bar 37.5 Rep. Pinnel's Case fo 117. b. Condition to pay 70 l. viz. 35 l. at one day and 35 l. at another day at the Temple-Church The Defendant pleads payment of the 70 l. at Ludlow secundum formam effectum Conditionis praedict Verdict pro Querente Assigned for Error for that he ought to have pleaded several payments but per Cur. its good enough reddendo singula singulis secundum formam effectum c. Cro. Eliz. p. 281. Fox versus Lee. Condition was to pay 20 l. the 7th day of Mdy 1558 at the House of the Defendant in S. It was found by Verdict that the Defendant paid the 20 l. before the 7th day of May at the said House but not solvit the 7th day of May. It was Adjudged a good payment More N. 400. Bond and Richardson Debt on Bond by a Bishop the Defendant pleads he paid the Mony at the day to J. S. Bailiff of the Plaintiff and by his commandment and avers that this came to the use of the Bishop This Averment makes the plea double for if the Bayliff receives this by command from the Bishop notwithstanding this doth not come to his own use yet this is a sufficient discharge to the Defendant 22 Ed. 4.25 a. But In Debt on Obligation payment of the Mony to J. S. by commandment of the Plaintiff is no plea without shewing that the Plaintiff was indebted to him 27 H. 6. 6. b. Where mistake in pleading the Sum or the Time is aided and where not IN Debt on Bond of 200 l. Condition to pay 105 l. c. The Defendant pleads payment of the aforesaid 100 l. at the day The Plaintiff replies quod non solvit praedict ' 105 l. Et hoc petit c. and it was found he did not pay the 105 l. Judgment pro Quer ' and Error assigned for that there is not any Issue joyned and so the Verdict ill and Judgment erroneous The saying Secundum formam effectum Conditionis shall not help it as if it should be intended the aforesaid 105 l. Cro. Jac. p. 585. Sandback and Turvey Such a Case was in Cro. Car. fo 593. Derby and Hemming and no Repleader could be granted but Judgment was reverst But where the Defendant pleaded to Debt on Bond payment of 50 l. on the 14th of Jun. 11 Jac. The Plaintiff replies he did not pay it the said 14th day of August Anno 11. supradicto quas ei ad eundem diem solvisse debuisset and Verdict found that he did not pay it the 14th day of June yet 't was no Error For the Defendant's Plea was according to the Condition and the Plaintiffs Replication quod non solvit the said 14th day was good and the misnaming the Month August is idle and superfluous praedicto quarto decimo die had been sufficient But in the other cases of mistaking the Sum there was another Sum in the Plea of the Defendant than was in the Condition and another Sum in the Replication than is in the Bar and so no Issue In Debt on an Obligation the Defendant pleads Solvit ad diem de hoc ponit c. where it should be hoc paratus c. for then the Plaintiff should have replied Non solvit Et hoc petit c. so there had been an Affirmative and a Negative Per Cur. forasmuch as the Plaintiff joyns Issue and the Jury find he hath paid its good enough and aided per Stat. Jeofails and Judgment was not arrested Cro. Car. 316. Parker and Taylor So 3 Keb. 29 Car. 2. p. 764. Helder and Brudnall Condition to pay a Stranger at three payments the Defendant on Oyer pleads payment according to the Condition of another Obligation to the Stranger The Plaintiff demurs and the Plea is Ill because the other Bond to the Stranger is not set forth as the particular days of payment 3 Keb. 612. Nichols and Nichols Release Pleaded J. S. makes an Obligation dated and delivered on the first of May and on the first of June following the Obligee makes a
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
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
upon Debt upon a Bill of 6 l. 13 s. 4 d. and upon Over after the In cujus rei Testimonium this Clause was added in nature of a Proviso Provided that the said 6. l. 13 s. 4 d. is not to be paid until such an one hath had a Recovery in such an Action or Suit which he hath hanging against the Plaintiff upon a Bond of 200 l. conditioned for saving harmless or hath made an end of the said Suit Conclusion was dat' iisdem die anno and all this upon Oyer entred of Record Defendant pleads no end was made of the said Suit and so the time of payment not yet come The Plaintiff replies a composition of 20 l. in discharge of the said Suit and Issue pro Quer ' per Curiam the 20 l. may be given in satisfaction of the said Suit though not of the Obligation This Proviso is part of the Bill for it expressed the time of payment of the 6 l. 13 s. 4 d. If the Proviso be no parcel of the Bill then it is in nature of a Condition Per Dodderidge Its parcel of the Bill and the words In cujus rei c. are not necessary to a Deed. If it be put in and subscribed a Devastavit in him Cro. El. 478 496. Kelsook and Nicholson By what words an Obligation may be made and what shall be good and what not In respect of False Latin or English The Frame of the Obligation As to Faux Latin or omission THE Law doth make a reasonable and favourable construction of Mens Deeds and Conveyances and will support them as much as it may according to the intent of the Parties but it abhors Non-sense Repugnancy and Insensibility and will reject any thing which introduceth Incertainty and Confusion upon which no solid Judgment or weighty Authority can be founded I shall briefly lay down two or three Rules or Advertisements contained in our Books about the construction of Faux Latin in Obligations and then come to particular Cases Faux Latin shall abate a Writ for that the Party may purchase a new Writ but it shall not destroy an Obligation for the Party cannot have a new Obligation when he will 9 H. 7.16.10 H. 7. Yelv. p. 194. in Dodsons Case 1 Brownl Rep. 110. so in James Osborns Case 10 Rep. 133. Faux Latin nor Faux English shall not make void a Bond or other Deed when the meaning of the Party appeareth An Obligation shall not be avoided for vicious Writing or Incongruity the Bond was Johem A. without a dash yet good and the Declaration upon it was Johannes H. Cro. Car. p. 418. Downs and Haithwait There are two principal Things contained in an Obligation 1. The Parties 2. The Sum in which one Party is bound and when both these are sufficiently expressed to the Conusance of the Judges as the Obligor and Obligee are well named and the Sum well expressed or easily without straining understood to be the intent and by such words by which the Party doth intend to bind himself it shall serve if it be well executed Yelv. p. 193. Brownl Rep. 110. Dodson and Keyes and therefore in that Case tenerie firmit obligarie was held good so if a Bond be Obligamus me haeredes c. it shall be good One is bound in Triginti libris for Triginta its good Rolls Abr. â— p. 146. Taylor and Thorp in sexigint pro sexagint yet good 2 Bulstr 241. 1 Rolls Rep. 47. Hob. p. 20. Marshall and Jolly Septuagent for septingent was holden to be good septua being easily understood for septem and the Condition was for payment of Mony less than the Penalty Hob. p. 116. Yelv. p. 95. 2 Rolls Abr. 147. Walter and Piggot If a Man is bound in sexingentis for sexcentis libris this is a good Obligation for sexingent is good Latin 2 Rolls Abr. 147. A Bond was made in Italian and it was sessanta libris for sexagint and good Cro. Jac. 208. Hob. 19. Parker and Kennedy A Man is bound in trigintata for triginta yet it s good Hob. p. 18. 2 Rolls Abr. 147. Loggins and Tetherton by the Statute to be bound and upon misbehaviour Remedy lies by Correction of the Master or the Justices Crook Hill 5 Cor. fo 179. Gilbert and Fletcher The Plaintiff had paid Mony for the necessaries of the Infant and took Bond in double the sum its void otherwise if he had taken Obligation for the very Sum Crook Hill 45 Eliz. fo 920. Aileff and Archdale If the Bond be of excessive value the Infant may traverse absque hoc that it was for necessary Apparel and the Plaintiff must reply specially and shew the Bond to be suitable to the price of the things Quâ—r If the Jury ought to find in such case non est factum 1 Keb. M. 14 Car. 2. f. 416 423. Russel and Leâ— An Infant submits himself to an Arbitrament its voidable for he may wave it if it be to his prejudice during his Minority but if he do any thing which amounts to an Agreement at his full age it shall bind him Noy pag. 93. Stone and Knight The Bond beareth date when the Defendant was within Age but it was sealed and delivered at full age The time of making the Bond shall be when the Bond is sealed and not when it bears date 1 Brownl Rep. p. 3â— Debt on Bond dated 10 June and delivered the 18th of the same month the Defendant pleads by Protestation it was delivered the 18th day absque hoe that at that time he was of full age Noy p. 34. If an Infant make an Obligation and being 〈◊〉 upon it an Attorny without Warrant suffers a Judgment by non sum informatus if he were within age he shall have a Writ of Error if he were not he shall have a Writ of Disceit against the Attorny but no Audita Querela Winch p. 114. Ashly and Collings Non compos mentis IF a non compos mentis seal a Bond he shall not avoid it himself 4 Rep. 124. Beverleys Case For no Man of full Age shall by Plea stultifie himself but privy in Blood as Heir or privy in Representation as Executor or Administrator shall plead the disability of him Ibid. By Body Politick THEY must be named by the true Name of their Corporation and yet if the essential part of a Corporation be named it is sufficient in an Action as ad respondend ' Majori Burgensibus de Lyn Regis in Com' N. and found they were incorporated Majores Burgenses Burgi de Lyn non per aliud per Cur ' the omission of the word Burgi shall not bar the Plaintiff 1 Brownl Rep. 57. Major and Burgesses of Lyn against Pain By what Names bound IF a Man bind himself in a faux Sirname he shall be estopped to avoid this so if by a faux Proper-name 3 H. 6.25 b. None can make an Obligation or other Writing by a contrary name of Baptism Administrator of Elianora brings
Release of the residue 1 Anderson p. 235 Case Cro. El. p. 182. Cook versus Bacon Sir G. Grisly now Baronet was bound in a Statute-Merchant before the Mayor of Coventry to D. D. upon a Certificate made by the Mayor into Chancery took out a Capias against him by the name of G. Grisly Esq and Writs of extent thereon this the Court would not amend but advised to sue a new Writ out of Chancerâ— upon the first Certificate scil Capias Corpus G. G. Mil. Baronet qui per nomen G. G. Armig. â—ecognovit c. Hobert 129. Sir George Grisleys Case If three are bound to me in a Statute-Merchant and every of them by themselves quemlibet 〈◊〉 per se I may sue Execution against one of them only or against all at my pleasure Declaration DEclaration is That the Defendant per scriptum suum Obligatorium c. concessit se teneri c. solvend cum requisitus esset The Defendant demands Oyer of the Obligatation which is of a Statute-Merchant c. salvend at the Feast of c. It s an incurable Fault Cro. Jac. op 316. Fox and Inkes A Statute for performance of Covenants which perhaps shall never be broken is no Plea in Bar by Administrator but a Statute for payment of Mony is allowable before Debts on Bond and so it differs from Harrisons Case 5 Rep. It s no good Plea to say that such a one was bound in a Recognizance and not to say per scriptum Obligatorium and to conclude it was done secundum formam Statut. doth not help it but in a Verdict it was agreed to be good Marches Rep. p. 76. Harris and Garret 4 Rep. 65. Fulwoods Case If the Jury find a Recognizance before the Mayor and Recorder though they say not per script Obligat or secundum formam Statuti its good enough The Defendant pleaded to Debt on two Bonds that the Intestate was indebted to the Plaintiff in a Statute-Merchant of 250 l. which Statute is in force not cancelled nor annulled and that she hath not above 40 s. assets ultra the Plaintiff replies that the Statute is burnt with Fire Judgment pro Quer. on demurrer for by the demurrer the Defendant hath confest the burning of the Statute and then it can never rise up for the Statute 23 H. 8. c. 6. concerning Recognizances in the nature of a Statute-Staple refers to the Statute-Staple that the like Execution shall be had and made c. and the Statute-Staple refers to the Statute-Merchant and that to the Statute of Acton Burnel 13 Ed. 1. which provides that if it be found by the Roll and by the Bill that the Debt was acknowledged and that the day of payment is expired that then c. but if the Statute be burnt it cannot appear that the day of payment is expired and consequently there can be no Execution If the Conusee will take his Action upon it he must say hic in Curia prolat 15 H. 7.16 Mod. Rep. 186. Buckly and Haward If One acknowledges a Statute and after a Judgment is had against the Conusor now against the Conusor the Statute shall be preferred but not against an Executor 1 Brownl 37. If two Men claim the same Land one by Extent upon a Statute the other by a Judgment the same Term he who claims by the Judgment shall be first satisfied Yelv. 224. A Statute-Merchant removed by Mittimus out of Chancery in Com. p. and Execution awarded there super tenorem Recordi A Writ of Error lies in B. R. though the Original be in Chancery and the Execution in C. B. More n. 738. Worsley and Charneck In what Courts taken and sued REcognisance taken in the Court of the Admiralty is void Noy 24. Record and Johnson How Recognisances shall be taken in London Stat. 14. E. 3.111 8 R. 2.4 5.5 H. 4.12 If a Statute-Merchant be not paid at the day the Mayor c. shall cause the Debtor to be imprisoned if he be Lay and in their power there to remain till he agree the Debt If the Debtor cannot be found they shall send the Recognisance under the Kings Seal into Chancery from whence shall issue Writ to the Sheriff of the County where the Debtor is to take his Body and if he do not satisfie the Debt within a Quarter of a Year all his Lands and Goods shall be delivered upon extent but his Body shall be still in Prison and he shall be allowed Bread and Water And the Sheriff shall certifie the Justices of one of the Benches how he hath performed the Service i. e. return the Writ If the Debtor dye the Body of his Heir shall not be taken If a Statute be rightly entred into as to the substantial Form it is sufficient though there be variance in the circumstantial Form Bendl. 144 145. All Statutes Merchant and of the Staple shall within six Months after the acknowledgment thereof be entred in the Office of the Clark of the Recognisances and it ought to be brought within four Months to enter a true Copy or else it shall be void against Purchasers bona fide and it must be enrolled within six Month 27 Eliz. c. 4. A Statute is to be shewed in Court of B. R. or C. B. when it s to be extended or on Return of Cepi Corpus else the party will be discharged tho it be lost 37 H. 6.6 7. On a Statute Merchant the Conisee may bring Debt on the Stat. and wave all other proceedings or he may have Execution after this manner He must bring his Statute to the Mayor c. and they are to imprison him if he cannot be found they are to certifie the Record in Chancery and if they refuse to do it they may be compelled thereto by Certiorari and upon a nihil returned upon a Testatum est he may have Process in another County Aliter of Goods and he shall have a Cap. directed to the Sheriff and this to be returned in the C. B. or B. R. if he be returned non est inventus his Lands shall be extended Upon a Statute-Staple or upon Recognisance founded on 23 H. 8. c. 6. the Body Lands and Goods may be taken together and this Writ on these Statutes are returnable in Chancery and not in B. R. or B. C. as a Statute-Merchant is Recognisances in Chancery Vid. supra Statutes CApias lies not on a Recognisance in Chancery but only a Scire Fac. per Gawdy Yelverton and Popham Yelv. 42. Weaver and Clifford So Cro. Eliz. p. 576. Conier's Case but in Ognel and Pastons Case Cro. Eliz. p. 164. adjudged contra and that it lies after a Scire Fac. and two Nihils returned And per Windham in Dormers Case 1 Keb. 456. a Capias lies on a Recognisance in Chancery the Presidents are so but in Grimston and Wades Case 3 Keb. 221 229. The Court conceived no Capias lies on a Recognisance in Chancery Debt on a Recognisance is brought in the
to a new Scire Fac. or to Debt on Recognisance Where there is a Condition it may be returned at a day certain and so may a Scire Fac. to revive a Judgment 2 Keb. p. 396 397. Allen versus the Manucaptors of Cutler Debt lies on the Recognisance of Bail 3 Keb. 707 734. Miles and Bateman but not before a Cap. and second Scire Fac. returned and filed on Judgment in Term Cap. may be at any time on Rule four days after Judgment W. recovered against B. in Debt and B. was brought to the Bar by Habeas Corpus procured by his Bail and the Plaintiff prayed he might be committed in Execution and also the Bail that he might be received in their discharge but B. having brought a Writ of Error it could not be hanging that Hob. 116. Wicksteds Case The Scire Fac. was to shew cause why Execution si sibi viderit expedire not saying fieri non debet Per Cur. it is ill and it is not amendable 3 Keb. 190. Mannel and Coltlowe After the Return of the second Scire Fac. it is too late to bring the Principal in and that is the reason that in such case a Writ of Error for the Bail to reverse the Judgment against the Principal Debt against the Principal and Judgment on Nihil dicit but no Ca. sa issued against him afterwards two Scire Fac. were taken out against the Bail and two Nihils thereon returned and on that Judgment given against the Bail The Judgment is erroneous but the Bail cannot bring a Writ of Error causa qua supra but he shall have an Audita Querela Stiles p. 323 288. Barcock and Thompson When the Judgment is grounded upon a Scire Fec the Bail is remediless 2 Keb. 51. Reynolds and Duel There ought to be a Cap. against the Bail before he can be charged and it ought to be shewed that the Capias was returned and filed against the Bail 3 Bulstr p. 341. Calf and Bingly If the Principal be dead before the Return of the Capias this must be avoided by an Audita Querela in Judgment against the Bail 2 Keb. 51. Reynolds and Duel The Course of the Kings Bench is that Default ought to be assigned in the Principal upon the Return of the Capias before the Bail shall be charged so in Com. Banc. Qu. which cannot be if the Principal be dead If the Principal render his Body though the Plaintiff refuse to take that yet that is a discharge of the Bail Winch p. 61. Sparrow and Sowgate How and when the Bail is discharged and of the rendring the Principal and the time of doing it THE rendring of the Principal to Prison is no discharge of the Bail till the Bail-piece which remains with the Secondary be discharged c. 2 Keb. p. 2. Booth and Nortrop One may plead reddidit se well enough without averring prout patet c. for that is only filed with the Bail-piece entred into at the Judges Chamber upon which the Secondary writes a reddidit se and so the party goes to the Marshal into Custody and thence returns to the Secondary and he enters a Committimus in exonerationem manucaptorum and if this Render be before the Return of the second Scire Fac. on the Bails Recognisance it may be well enough pleaded prout patet c. and this is the Course of the Court 2 Keb. p. 237. Anonymus Per Rolls Out of Indulgence to the Bail it hath been the use of later times that if the Bail do bring in the Principal before the Return of the second Scire Fac. which was taken out against the Bail thereupon to discharge the Bail But anciently it was not so but then it was counted too late to bring him in Stiles p. 134. M. 24 Car. 1. B. R. Quatermans Case The manner of Entry upon the yielding of the Body upon the Bail and if the party or his Attorny be present he must make his Election to take him in Execution or refuse him whereof Entry is to be made Qu. If he may after take him by Casa Hob. p. 210. Welby and Canning Judgment against a Bail on Scire Fac. which was sued out and two Nichils returned after the Party had rendred himself in Execution on the first Judgment Scrogs moved to have the said Judgment set aside Per Cur. there is cause of an Audita Querela but otherwise no remedy But the Attorny ought not to sue any Scire Fac. against the Bail after the Bail-piece dischaged but before he may 2 Keb. 475. Goreham and Boxhamâ— On affirmance of Judgment against the Principal Jones prayed the Bail may render the Principal before any Scire Fac. which the Court granted and his Render here is a Render below the Recognisance being removed and it may be done before any Judge in discharge of the Bail 2 Keb. 635. Bodam's Case Gardner prayed that the Principal may be accepted to tender himself there being no Capius issued against the Principal yet a Scire Fac. and two Nichils against the Bail are returned Sed non allocatur this is cause for an Aundita Querela And were there a Scire Fac. returned the Defendant may plead it but the Bail cannot otherwise be relieved 2 Keb. 536. Staunton's Case Duport recovered Debt against Wildgoose Upon this a Capias issued out against Wildgoose and the same returned and before it was filed a Scire Fac. issued out against the Bail the Bail for his discharge did suggest an Action against Wildgoose the Principal and had his Body in Court and being in Court he moved to have Wildgoose delivered in Execution for the Debt of Duport in dischage of himself in regard that if he should die before next Term he could not plead this to the Scire Fac. but should be then charged with the Debt which was granted Note that Duport did not intend to pray the Body of Wildgoose in Execution for his Debt though present in Court but his purpose was to have had his Surety in Execution for the same the Bail perceiving this for prevention did bring the Body of Wild-goose into Cour and prayed him to be committed in Execution for the Debt in exonerationem of him which the Court did 2 Bulstr p. 352. Duport and Wildgoose Capias must first be awarded against the Principal before Scire Fac. against the Bail for the Recognisance is that the Principal should tender himself c. which is intended upon Process awarded against him Cro. Eliz. 597. Hobs and Tedcastle The Mainpernors brought Error because there was not any Cap. ad satisfac awarded against the Principal before the Scire Fac. Per Cur. a Writ of Error lies well upon the Statute of 27 Eliz. but being certified upon diminution that a Ca. sa had been awarded the Judgment was affirmed Cro. Eliz. p. 730. Cokerin's Case One was bound by the Chief Justice to appear in B. R. the Court was moved to discharge him of his appearance because
he was before the day arrested and imprisoned at the Suit of another and it was done 1 Bulstr 170. Scire Fac. against the Bail for Non-appearance of the Principal and it is not mentioned that Process was awarded against him but that it was prayed ei conceditur but it is not ideo raecept est Vicecomiti c. as it ought to be and although he that was Bail doth not afterwards appear this might be without Process and so nor good Cro. Eliz. p. 177. Herd and Burstow The Bail cannot render the Principal on the day of the Return of the second Scire Fac. though before the Sheriff hath actually made his Return and this is the Pleading of the Render that such a day ante retornum and after Nul tiel Record pleaded the Bail cannot take advantage of this Render 1 Keb. 450 456. Hooper versus the Manucaptors of Gibbon The Bail must render the Principal sitting the Court the day of the Return of the second Scire Fac. So it is on a Declaration by the by which must be sitting the Court the last day of the Term 1 Keb. 899. Nicholas and Stokes Judgment was given against the Principal and after a Scire Fac. is brought against the Bail who appeared and pleaded Nul tiel Record of the Judggiven against the Principal and on the day given for bringing in the Record the Principal rendred his Body in discharge of the Bail Qu. if he might March Rep. p. 154. pl. 223. The Condition of the Bail is that they render his Body indefinitely without limiting any time in certain when they shall do it or pay the condemnation and by some if they plead such a Dilatory Plea as this they have thereby waved the benefit of bringing in the Body and by this trick the Plaintiff should lose all his Costs of Suit which he had expended in the Suit against the Bail Judgment against the Principal in B. R. upon this Judgment a Writ of Error is brought in the Exchequer-Chamber according to the Statute of 27 H. 8. Hanging this Writ of Error the Principal reddidit se prisonae in exoneratione of his Bail the Bail may plead this in their discharge the Record of the Bail is a distinct Record of it self hanging the Writ of Error the Bail may bring in the Body of the Principal at any time when he will but he shall not be prayed in Execution before Judgment be affirmed or disaffirmed Before the Return of the Scire Fac. against the Bail the Principal renders himself and hanging the Writ of Error dies by this the Bail is discharged 3 Bulstr 341. Calf and Bingly Stiles and Seagar Hobbs and Doncaster cited there A Committitur though no Judgment must be entred hanging the Writ of Error but if Judgment be affirmed the Party must pray to have him in Execution Jones p. 128. mesme Case At any time before the Capias awarded if the Defendant dye this dischargeth the Bail for the Recognisance is conditional scilicet to render his Body to prison if he were condemned or to pay the Condemnation And before a Capias he is not bound to render his Body and therefore by the Act of God being impossible by death to render his Body the Bail is discharged And before Capias awarded the Principal is not bound to render himself for the Plaintiff had Election to take out Execution by Elegit or Fieri Fac. as well as Capias Jones Rep. p. 138. Calf and Bingly Pleading and Execution IN Scire Fac. or Recognisance against the Bail the Defendants Plea was venit dicit c. Per Cur. he must say venit in propria persona or per Attornatum and neither shall be intended especially this being after a Demurrer though general 2 Keb. p. 388. Bolton and Clark When Scire Fac. issues upon the Recognisance the Bail and Principal have two ways to defeat this either by tender of the Body of the Principal or by Plea and if at the Return they appear by Attorny they have chosen to avoid the Recognisance by Plea 2 Rolls Rep. 382. Scire Fac. against C. as Bail for D. and shews he had such a Term Judgment against D. and that he did neither render the Body nor satisfie the Debt The Defendant pleads D. came into Court and rendred his Body to the Fleet in Execution and in discharge c. and that the Plaintiff did refuse to take him in Execution and the Plaintiff denied yielding of the Body and so Issue Per Cur. it is not well pleaded for the yielding of the Body being an Act in Court and in discharge of his Bail which is of Record must be it self of Record and therefore ought to be concluded prout patet per Recordum Hobart p. 210. Welby and Canning In Scire Fac. against the Bail they plead reddidit se of the Principal before the Return of the second Scire Fac. viz. 11 May. The Plaintiff prays Oyer of the reddidit se and the Return which was the 6th of May. The Defendant demurs Judgment pro Quer. 2 Keb. 542. Turner and Lufton In Scire Fac. against Bail or Judgment in Debt on Oyer of the Judgment The Defendant demurred because Scire Fac. is of a Judgment or Bill in Michaelmas Term whereas the Bail appears to be in Hillary but the Bill being against the Defendant as in Custodia the Bail may be at any time and heretofore the Bail was never put in before appearance as now used But in B. C. Bail is precedent to the Original in Habeas Corpus and is conditional to appear to the Original in two Terms 3 Keb. 124. Segar and Brome Executor brought Scire Fac. againg the Bail and declares that the Plaintiff did recover and that afterwards the Plaintiff dyed the Defendant not brought in by them The Defendant pleads no Capias was sued out by the Testator a good Plea 3 Keb. 190. Manuel and Coltlowe The Plaintif cannot have a Capias without a Scire Fac. Qu. And if the Defendant principal dye before the return of the Capias the Bail are discharged but not so on death before a second Scire Fac. Yet Cro. Jac. p. 97. Justice Williams against Vaughan The Defendant in Scire Fac. pleaded the principal was dead before the Scire Fac. brought ill Plea because he alledgeth not when he dyed nor that he dyed before the Capias Awarded and if once on a Capias non est â—nventus is returned the Recognizance is forfeited because there was default in the party and though it be usual if the principal render his Body upon the first Scire Fac. to accept it yet that is of grace not of necessity therefore the death at the time of the Scire Fac. brought is not material if he were alive at the Capias returned Cro. Jac. p. 165. Timperly and Coleman If the principal dye before the Capias returned the Bail may be discharged but never where he dyeth after though before the return of
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.
Paine On a Bond made to a Bishop Parson Vicar Master of an Hospital or other sole Body Politick the Executor or Administrator shall have this Action Except in the case of the Chamberlain of London where it goes to the Successor and so in the case of a Corporation aggregate Dean and Chapter Mayor and Comminalty the Successor shall have the Action 4 Rep. 65. Fulwood's Case Cro. Eliz. 480. Bird and Wilsford Per two or three to whom the Obligation is made IF Obligation be made to three and two bring their Action they ought to shew the third is Dead Siderfin p. 238. Osborn and Crossborn But in Whelpdales Case This advantage was waived on non est factum pleaded Also the Obligation being Obligamus nos it shall not be intended the others did not Seal but if they had not the Count should have been on writing by three whereof two did not Seal 1 Keb. 840. Mesme Case If two or three are bound joyntly and one dies the Executor of him that is dead is altogether discharged And the Action may not be brought against the Survivor and the Executor Siderfin p. 238. Osborns Case Debt versus Excutor Plaintiff profert joynt Obligation without saying jam defunct Q. if this be saved upon a General Demurrer If the Executor had been Plaintiff in Debt upon such Obligation he ought to have said jam defunct to entitle himself to this his Action Siderfin p. 272. Osborns Case Obligation made to three to pay Mony to one of them they ought all to joyn in the Suit for they are all as one Obligee and if he which ought to have the Mony dye the Survivors ought to Sue tho' they have no interest in the sum contained in the Condition Yelv. p. 177 Rolls and Yate By Baron and Feme THe Husband after she Marries must joyn with her in the Suit where the Bond was made to the feme dùm sola fuit for if cause of Action arise before Coverture tho' but Trespass where damages are only recoverable they must joyn 1 Keb. p. 440. Hardy and Robinson Upon such Bond made to the Wife dùm sola fuit by the Husband only Judgment staied 37 Ass 11. If Bond be made to a Feme-covert and the Husband disagree in Action brought the Obligor may plead non est factum for by his disagreement the Obligation is no Deed. 10 Rep. 119. Whelpdales Case On Bond made to Baron and Feme Feme Administers and brings Debt upon the Bond as Administratrix she dies before Judgment her Executors cannot bring Debt upon that Obligation for she hath waved it and that personal duty being a thing in action may well lie in Joynture between Baron and Feme aliter of other persons Noy p. 149. Norton and Glover By Alien ON Bond made to an Alien Enemy he may have an Action for personal things More n. 852. Walford and Marsham F. makes a Bill of Debt to A. by which F. acknowledges to have received of one P. 40 l. to be equally divided between A. and B. and to their use Per Cur. B. need not joyn in the Action tho' Tenants in Common ought to joyn in personal Actions for they are several Debts as 20 l. to one and 20 l. to the other Yelv. p. 23. VVhorewood and Shaw By Executor or Administrator AS to Suits brought by or against Executors that more properly belongs to another Title in our Law and the Pleadings stand altogether upon other Reasons Yet I shall say something here so far as refers to Obligations as to Payment Satisfaction Release Gist of the Action and the like Two Men made an Obligation joyntly for Debt the principal made his Surety his Executor who pays the Mony generally Q. if he paid it as Executor or as Obligor 3 Leon. p. 197. Carter and Marten B. As Executor brought Debt upon Obligation made to his Testator the Defendant Pleads he paid a lesser sum to the Testator and that he did accept thereof in full satisfaction per Rolls you may Traverse either the payment or the acceptance of the Mony but more proper to joyn Issue on the payment Stiles p. 239. Bois and Cranfeild Executor port Debt on Bond in the debâ—t detinet and had Judgment by Default but it was Reverst because it ought to have been brought in the detinet only Stiles p. 278. Lydall and Lister Administrator Sues J. S. upon Obligation and had Judgment and after the Administration is revoked yet the Plaintiff took the Defendant in Execution And upon motion the Execution was adjudged void and the second Administrator shall not have Execution for he is no party to the Record Yelv. p. 83. Barnhurst versus Sir Charles Yelverton Six Executors brought Debt named in the Writ after three were summoned and severed the other three bring Debt upon a Bond the Defendant Pleads non est factum and found against him Per Cur. there needs no mention of the other three who were severed Cro. Car. 420. Price and Parkhurst Debt port by Executors upon an Obligation the Defendant pleads payment of the Principal and Interest to one of the Executors of 18 years and a Release by him no good Plea for he not being at Age could not Release except he had the entire Forfeiture the Chancery in such case will releive Cro. Car. M. 13. p. 490. Kniveton and Latham Debt by Baron and Feme Exacutrix upon a Bond made to the Testator Upon non est factum pleaded it s found to be made to the Testator and another Judgment pro Querente The matter of variance goes but in Abatement and cannot be pleaded in Bar 5 Rep. 119. If the Defendant in this Case had demanded Oyer and caused it to be entred in haec verba he might have Dâ—murred to the Declaration and the Court ex officiâ— ought to have abated the Bill Allen p. 41 42 Holdwych and Chafe In Debt by Executor after imparlance the Defendant shall not have Oyer of the Testament or of the Obligation or other Deeds Q. de hoc doct placitandi 272. Two Executors made Partition of the Testators Specialties and then one of them did release to the Debtor an Obligation which did appertain to the part of the other the Debtor having notice of the Partition between them the other Sued in Chancery for relief Chancery would not relieve him but if the release were obtained by Covin for a lesser sum than the Debt was the Debtor should satisfie the overplus More n. 802. A. Administrator of B. de bonis non per G. against H. and Avers that H. had not paid it to B. nor to A. not saying he had not paid it to C. its good enough for the Declaration is quas ei injuste detinet which per Cur. cannot be if it were paid to C. Also this lieth on the part of H. to plead in discharge of himself 1 Keb. 232. In Debt on Bond per B. Administrator de bonis non of G. The Plaintiff saith the
Judgment of the Bill for that the Plaintiff in the Obligation was named J. Thorny de F. in Com. N. Armig ' and in the Declaration was named J. Thorny Armig. and no more Respond ouster awarded Cro. Eliz. 312. Thornough and Disney After Imparlance one cannot plead in Abatement of the Writ Stiles 187. Weston and Plowden Per Stat. 6 R. 2. c. 2. it 's provided that the Original shall not be laid in one County and the Declaration upon a Bond made in another County if so the Writ shall abete But it s no good Plea to say that the Bond was made in another County than where it s alledg'd in the Declaration Allen p. 17. Shalmer and Slingsby If the Defendant pleads a Plea in Abatement as in Debt upon Bond that another was joyntly bound with him who is in full life not named and concludes in Bar Judgment shall be final against him Siderfin p. 189. Burden and Ferrars Debt on Obligation against the Defendant Knight and Baronet The Defendant pleads he never was a Knight in Abatement No Amendment granted but in Nil Cap. per Billam awarded because tho' the Defendant after Bail put in by himself generally he cannot plead in Abatement yet when the Bai is Special or put in by another he may plead in by Abatement Judgment pro Def. 2 Keb. 824. Sir William Hicks's Case Pleads that the Plaintiff puis darrein continuance was made a Baronet Cro. Car. p. 104. Simon Bennet A Plea may be a good Plea in Abatement though it contain Matter that goes in Bar Med. Rep. 214. In Debt sur Oblig ' against J. S. de S. it 's a good Plea to say that there are two Vills S. within the County and none without Addition 14 H. 6.8 a. In Debt sur Bond. The Defendant pleads that after the Writ purchased the Plaintiff had received parcel and shews the Acquittance the Writ shall abate in the whole and notwithstanding it 's a good Plea in bar as to this part Doctrina placitandi p. 5. Vide pluis in titulo Payment infra Payment of parcel pendant le Suite Two bring Debt on Obligation the Defendant pleads the Obligation was made to them and to one B. and that they three had an Action of Debt depending against him and demands Judgment si actio Demur And because the Obligation was made to two upon which they counted it cannot be intended an Obligation made to three and if it be a Plea it 's in Abatement of the Writ and not in Bar. Judgment pro Querente Cro. Eliz. Isham's Case Debt against J. S. de D. Yeoman It 's no Plea to say there are two J. S. of D. Yeom Sen. and Jun. and none without addition For the Action accords with the Obligation which is J. S. de D. Yeoman without distinction 9 H. 7.21 Pleas after Imparlance IN Debt on an Obligation the Defendant imparles till next Term after he may plead that the Plaintiff is Outlawed For the King shall have the Debt on Bond. Aliter in Trespass or Debt or simple Contract 16 Ed. 4.4 a. per Bryan Debt against J. S. de D. The Defendant imparles he may after say by Attorny Upper D. and Nether D. and none without addition 18 Ed. 4.9 21 Ed. 4.1 b. contr Variance between the Obligation and the Writ may be pleaded after Imparlance in another Term for the Bond always remains in Court but after Imparlance Variance between the Testament and Letters of Administration shall not be pleaded for the Testament shall be but once shewed in Court 36 H. 6. 32 33. 38 H. 6.2 19 H. 6.7 The Defendant Imparles till another Term and then he pleads Tender of the Mony at the day and place and that no person was there to receive it and that he is now ready and saith not Touts temps prist yet it 's a good Plea For he had excused himself of the Forfeiture by this Plea and no Estoppel shall be by the Imparlance to plead that he is now ready Doct. placitand 388 389. In Debt on Bond the Defendant imparles Specially scil salvis omnibus omnimodis advantagiis and after he pleads the priviledge of the Exchequer that he was Surveyor there Per Cur. he cannot plead so Siderfin p. 318. Trussel and Maddin 2 Keb. 103. A Plea in Abatement ought to be pleaded before Imparlance As the Defendant to Debt on Bond appears and imparles and after Imparlance pleads that he is Earl of Nova Albion in Ireland and ought to be impleaded by that Name Stiles p. 187. Weston and Plowden After Imparlance the Defendant pleaded in Abatement that one Vincent not named sealed c. It 's no Plea after Imparlance and a Respond ' uâ—ster awarded 2 Keb. 795. Putt and Nosworthy Debt for 300 l. The Defendant after a general Imparlance demands Oyer and pleads Specially it was but for 30 l. Non allocatur after general Imparlance then the Defendant pleaded Non est factum which was the proper Plea in the Case 1 Brownl p. 70. It was Ruled that after Imparlance in Debt upon Bond the Defendant shall be received to plead that he was always ready to pay tho' 13 Eliz. 306. Dyer seems contrary and was so urged Replicatio Querentis That the Defendant ought not to be admitted to plead a Variance between the Declaration and the Bond in abatement after Imparlance general Modus Intrandi p. 200. Obligations Pleadings Acceptance Coneord COndition to deliver twenty Quarters of Wheat The Defendant pleads that pendente billa the Plaintiff had accepted fifteen Quarter and demands Judgment of the Bill No Plea for it 's Collateral and not parcel of the Sum contained in the Obligation and if it be a Plea it is in bar and not in abatement Cro. M. 33 54 El. Stone versus Radish Issue is taken that he had not accepted now though it s no Plea and so no Issue yet it s helped by the Statute of Jeofails and the Plaintiff had Judgment Cro. El. p. 260. M. 33 34 El. Andrews and Kinck Debt pro. 7 l. the Defendant pleads solvit ad diem The Jury find 50 s. parcel of it paid and that the Defendant then delivered to the Plaintiff certain Hats to the value of the residue which he accepted It was Adjudged against the Defendant for this is no payment he might have pleaded it specially Cro. M. 35 36 El. Tiblethorp and Hunt Debt fur single Bill The Defendant pleads he enfeoffed the Plaintiff of Lands in satisfaction of that Debt The Plaintiff demurs Per Cur. it 's a naughty Plea to a single Bill otherwise had it been upon a Bond with a Condition to pay Mony 1 Brownl 70. Glyver and Lease Debt sur Bond The Defendant pleads another Bond given to the Plaintiff in satisfaction of that Bond and acceptance at the day of payment Ill Plea for one chose in Action cannot be given in satisfaction of another unless it were payable at a day before the
upon the Bond. Per Cur ' Duty extends to the Obligation and it shall be a discharge of it Cro. El. p. 370. Rotheram and Crawley Condition to pay 71. upon the Birth-day of the Child of J. L. which God should send after the date of the Bond. This is a contingent Debt and the Condition may not be discharged and a Possibility may not be released Qu. if the Obligation may be Yelv. p. 192 Neale and Sheffield Sir H. Stile and Tho. Brooke were joyntly and severally bound to W. Tully After the day of payment incurred Tho. Brooks makes his Will and makes Mary Brooks his Wife Executrix and dies and after William Tully makes his Will and by his Will releaseth unto Mary Brooks all the Debts which Thomas Brooks her Husband did owe to him at the time of his death Per Cur. a Will cannot release a thing created by Deed and so discharge Creditors Q. Stiles p. 286. Stile and Tully Sir H. Stile could have no Relief in Chancery G. was bound to R. with Condition to pay 100 l. but this was in trust to the use of M. W. during her life and after to G. P. G. P. may not release the Bond neither in Law nor Equity during the life of M. W. But had it been to his own sole benefit it had been good in Equity Lit. Rep. 144. Ganford's Case An Obligation to perform all Covenants in a Lease The Lessor releaseth to him all demands before any Covenant broken this is no release of the Obligation Lit. p. 87. Two are joyntly and severally bound in an Obligation if the Obligee releaseth to one of them both are discharged Co. Lit. 132. c. A release of all Actions by the Obligee before the day of payment he shall be barred of his Duty for ever for it is debitum in praesenti c. and the right of the Action is in him So by a release of all demands Co. Lit. 291. b. 292. b. The Defendant pleads that the Plaintiff by Indenture c. did Covenant that he would not sue the Bond before Michaelmass Judgment si actio Cur. pro Querente it s only a Covenant and shall not enure as a Release and is not to be pleaded in bar but the party is put to his Writ of Covenant Had it been a Covenant he would not sue at all it might have mounted to a Release Cro. Eliz. p. 352. Deux and Jeffreys 1 Anders 307. mesme Case But if the Defendant pleads that the Plaintiff by Indenture shew'd Covenanted that if he paid 100 l. at c. that then the Obligation should be void and avers he paid it it s a good Plea in bar and he shall not be put to his Writ of Covenant by circuity of Action Cro. Eliz. p. 623. Hodges and Smith An Obligation bears date the 1st of May and is delivered 20 days after and the Obligee makes a Release the 2d day of May and delivers this the same day this Release is no bar of the Obligation But in this case if the Obligee will bring his Action and count on an Obligation bearing date the 1st of May and doth not say that this was primo deliberat ' the 20th day the Defendant shall bar him by the Release for that the Release was made after the first day scilicet the second And the Plaintiff shall not reply and shew the first delivery of the Obligation was the 20th day for that this is a departure for he ought to have alledged this at the beginning and so it shall be taken that the Obligation was delivered according to the purport of the Obligation 5 H. 7.27 a. J. S. was bound that J. D. the Apprentice should make an account and pay Moneys and afterward the Obligee per Deed releaseth to the Servant and not to the Obligor If the Release were made before any Forfeiture the Obligation is saved and the Release may be pleaded but otherwise if after Forfeiture because an Obligation once forfeited cannot be saved by any Act or Release made or done to a Stranger 3 Leon. 45. Anonymus Pleadings Tender Uncore prist TEnder at the day and place of the Mony and the Plaintiff refused it and the Mony brought into Court The Plaintiff joyns Issue that there is no Tender and Refusal Verdict pro Def the Plaintiff hath lost his Mony for it is a Refusal on Record and the Defendant must have his Mony out of Court Stiles p. 388. M. 1653. Benikin and Herrick If the Obligor tender the Mony at the day and place and the Obligee refuseth it In debt sur ceo Oblig ' if the Defendant pleads Tender and Refusal he must also plead he is yet ready to pay it and tender the same in Court Aliter if it were to be paid to a Stranger But if one is bound in 200 Quarters of Wheat to deliver 100 Quarters if the Obligor tender at the day 100 Quarters he shall not plead Uncore prist for they are bona peritura but the Sum of Mony is not lost per Tender and Refusal because its a Duty and part of the Obligation Where the Condition is collateral to the Obligation that is not parcel of it there Tender and Refusal is a perpetual bar and he shall not be driven to plead Uncore prist As a man is bound in 100 l. to deliver Corn or Timber to perform Award as a man is bound by Award to pay 20 l. c. Co. Lit. 207. Anders p. 4. Pannel and Neal. Dyer 1 Eliz. 167. 9 Rep. 97. Peytoe's Case Vid. Doct. placitand ' p. 389 390 391. 1 Brownl 61. If a man make a single Bond or acknowledge a Statute or Recognizance and afterwards makes Defeazance to pay a lesser Sum at a day if the Obligor or Conizor tender it at the Day and the Obligee or Conizee refuse it he shall never have any remedy by Law to recover it because no parcel of the Sum contained in the Obligation or Statute the Defeazance being made at a time after Co. Lit. 207. Vid. More N. 114. Condition to perform Covenants by a Stranger one whereof was to pay 20 l. to the Obligee The Defendant saith The Stranger tendred and the other refused ne dit Uncore prist Bon Plea 27 H. 8.1 19 H. 8.12 If one be bound that a Stranger shall make an Obligation to the Obligee it sufficeth to say that the Stranger tendered this and the Obligee refused it without saying Uncore prist 10 H. 6.16 Condition was If a Stranger paid the Mony at T. then c. He pleaded a Tender by the Stranger and saith not Uncore prist per Cur. it s no bar but if they were joyntly bound it would be well enough 2 Keb. 178 Browne's Case If Mony be tendered and none ready to receive it and after he to whom the Mony is paid demands the Mony and the other refuseth an Action is brought and Tender pleaded yet the Defendant shall pay Damages from the time
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