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
' 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
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
Id. 188. Bar quod Testator in vita sua devenit Obligat ' eidem Def aliis in diversis denar ' â—ummis pro seperalibus Obligat ' quodque ipse non habet bona seu catalla ultra c. ad satisfaciend ' sibi 2 Judic ' obtent ' versus eum 2 Browne 7â— Repl ' Assets ultra Oblig ' fuit per fraud ' Id. 77. Per Administrator quod Judic ' obtent ' fuit versus defunct ' in vita sua 4 seperal ' Judic versus Def. ut Administrator post ejus mortem quod non habet Assets ultra Id. 87. Per Administrator qui placitavit Judic ' versus Curia B. R. quod Judic ' est minime reversat ' Quod Def. est una eademque persona quodque idem Judic fuit obtent ' pro vero justo debito sic idem Def. dicit quod ipse plene Administravit omnia bona catalla defuncti praeter c. Id. 97. Quod A. defunct ' habuit bona Notab ' in diversis Dioecesibus quod Administratio commissa fuit â— cuidam R. qui relaxavit Def. Id. 98 99. Administrator pled ' Judicium en C.B. obtent ' versus intestate en sa vie Repl ' quod Judgment est satisfied continued per Fraud ' Rejoynd ' que Judgment n'est satisfied Traverse se Fraud Issue sur Traverse Vidian 171 181 182 183. Simile Bar Replic ' Assets ultra Idem 175 176. Special Reteyner pleaded lou Administratio fuit grant al feme del Def. Def. est … ed com Executor Vidian 188. Per Administratrix Def pledes plene Admin Repl. quod Plaintiff ad prosecuted un Original breve versus Def. son baron retorn ' en C. B. sur ceo ad proceed al Issue mes que breve fuit abate per mort del baron que récenter exhibuit billam quod Defend tempore brevis Orig ' ad Assets Rejo Issue que Plaintiff non recenter exhibuit billam Id. 204 205. Bar per release fait per Administrator ' durant minore aetate Repl ' quod relaxavit in jure suo proprio Traverse quod relaxavit ut Administrator Def. moratur Quer ' rejungit Special Verdict Judgment pro Quer ' 1 Browne 167. Bar al Oblig ' port per Executor quod Testator implacitâsset quendam T. qui tenebatur simul cum Def. in eodem scripto quod ipse idem T. satisfecit Testatori superinde Id. 213. Bar quod Testator in vita sua dedit deliberavit quer ' sex Vaccas in plena solutione satisfactione denar ' c. Brownl Lâ—t 169. Narr ' per un Executor super Oblig ' versus 2 Executors Bar quod unus Def. obiit post Darrein continuance alter placitat ' plene Administravit Repl ' quod Defendents on t Assets en lour mains temps del breve purchased Issue sur ceo Idem p. 175. Al Count versus Executor sur Oblig ' simul cum alio Executore qui Utlagatus existit Bar ' quod Testator fecit istum Executorem qui Utlagatur Quodque Def. uâ—serviens Executori vendidit diversa bona pro illo computavit cum illo pro iisdem absque hoc quod Administravit aliquo alio modo prout c. Brownlow Lat. 196. Ad Narr ' versus Administratricem super Oblig ' cum Conditione ad indempnem conservand ' Quer ' esteant un Surety pur l'Intestate Bar quod Intestatus in vita sua solvit denar ' tali die juxta Condition ' sic indempnem conservavit Quer ' Et Replicatio Id. 194. Condition performed Condition fuit que Defendant permitteret le Testator ses Executors c. a depasture 200 Oves Repl ' que Defend non permitterer Rejoynd Issue sur le permission Rob. Ent. 182. Breach assigned quod nec Testator nec Executores solver reddit ' deb ' ad tale tempus Rejoynd quod Testator in vita sua solvit Id. 200. Per Administrators DEfend ' pled ' Recogn ' en Chancery al Estranger Scire fac ' sued versus â—Intestate retorn ' que fuit mort anter Scire fac ' sued versus Def. come Administrator qui appiere plede pleinment administer Issue Assets trove al 44 l. Judgment sur ceo Repl ' quod le Recogn ' fuit satisfied per Defend ' mes satisfaction ne f uit conus devant le Plaintiff ad purchase son Original al intent a defrauder Et Demur ' inde Winch. Entr. p. 245. Bar per Administrator un E. port Action versus luy sur Obligation super que il confesse Judgment Id. 247. Bar per several Judgments en le Sheriffs-Court London un Det reteyned Det assigned al Roy. Male Plea pur duplicity Id. 257 258. De Servientibus Apprenticiis QUer ' retinuit servien ' pro 5 annis solvit ei 20 l. annuatim pro salario in manibus al Obligation sur Condition de repayer sur mort ou departure sans notice d'un quarter d'Ann devant discharge Bar quod Quer ' posuit servien ' è servitio sine notitia quarterii Anni Repl ' â—d tali die dedit notitiam c. 1 Brownl Quod quor ' tali die posuit Apprenticium è servitio usque quem diem performavit omnes conditiones Repl ' protestando c. pro placito quod Apprenticius recessit è servitio Traverse quod Quer ' posuit eum è servitio Hern 272. Obligation ove Condition de fideli servitio fiend ' per Apprenticium Lond ' Bar per Custom quod Indenture Apprenticiat ' non Irrotulat ' sunt vacue Repl ' per nul tiel Custom Breve inde agard Co. Ent. 144. Bar per release fait al Apprentice 3 Lâ—on 45. Bar quod performavit les Covenants Breach assigned pur Moneys purloyned Tompson 183. Al Oblig ' cum Conditione pro performatione Conditionis in Indent ' Apprentis ' Def. placitat clausulam in Stat. de Anno 5 Eliz. Rob. Ent. 193. De Apprenticiis SUr Obligation a performer Covenants d'un Indenture de Apprenticeship Bar que ne fuit prove quod l'Apprentice consumpsisset secundum formam Conditionis Repl ' que l' Apprentice serve luy à tali die usque talem diem infra idem tempus recieve bona Magistri infra terminum praedict ' eux consume que l'Apprentic per scriptum suum cognovit se consumplisse c. que Plaintiff done notice de ceo al Def. que il ne fait satisfaction deins 3 Moys sucundum formam eandem Def. Demur generalment Winch Ent. 168. the Case of Gold and Death Oblig ' to perform Covenants in an Indenture of Apprenticeship Bar that the Apprentice died and a just Account was made by him before his Death and that he never departed from his Service Repl ' that the Apprentice made his Account and omitted 60 l. by him received of one R. of the Plaintiffs Monies
Vide tit Condition Exposition of Conditions 110 Execution on Statutes and Bonds 262 265 410 Actions brought by Executors on Obligations 355 Summons and Severance 359 Release by Infant Executor ibid. Actions brought on Bonds against Executors or Administrators 361 F. FEme Covert makes a Bond how far binds 13 Bonds made to Baron and Feme 18 To Feme Covert ibid. To Feme Sole 19 Actions on Bonds by Baron and Feme 357 Against Baron and Feme 363 Condition to acknowledge a Fine 184 185 186 187 Who to do the first Act 352 Bond when said to be forfeited Vid. sparsim per tot 99 c. 142 179 Forgery of Bonds 345 Foreign Plea 443 Foreign Attachment pleaded 445 Fraudulent Deed need not be pleaded but may be given in Evidence 295 G. OF Bonds given for Gaming Mony 53 Act of God Vid. supra H. DEbt on Bond against the Heir 292 Riens per descent 293 What shall be Assets ibid. Declarations 297 Judgment ibid. I. JEofail 115 Impossibility excuse a Condition 97 98 Condition impossible the Effect of it ibid. Pleas after Imparlance Vid. tit Pleadings Infants entring into Bond acknowledging Statutes Recognisances 14 259 Insensible Conditions 100 Bonds joint or several 32 Actions by joint Obligees 356 Actions against joint Obligors 364 Joyining Issue on payment 461 On a Collateral point 462 Issue Tryal on Bonds Covenants 205 Of pleading to the Jurisdiction 449 Judgment on Bonds sued 465 K. BOnd made to the King Vid. Recognisance Condition to observe the order of the Kings Counsel 240 Assignment of Debts on Bond to the King 318 319 L. OF Bonds on Covenants in a void Lease 195 Condition to accept a Lease 232 Conditions concerning Legacies 239 Conditions about Licence 241 Condition to pay during Life 140 M. BOnd void for Maintenance 47 48 What is Maintenance and what not 317 Condition to pay Mony upon Marriage 131 Condition to convey Land upon Marriage 235 Bod void by Menass 107 Misnomer or Variance in the Names Additions 380 Monstre des faits 141 195 303 381 Bond of Covenants in a Mortgage 196 N. NAme of Baptism Variance between the Bond and Declaration 17 Variance in Names Additions 378 One Non compos mentis entring into Bond 16 One may not plead he was not sane memory at the time of his Sealing the Bond Vid. Pleadings Non est factum where pleaded to a Bond 36 430 c. Vid. tit Pleadings Of Non-Residence and of Conditions against the Stat. of 13 Eliz. c. 10.14 Eliz. c. 11. 58 Notice where requisite and where not in the performance of a Condition 134 135 166 218 224 308 347 351 O. THE Nature of an Obligation 1 Faux Latin in Obligations or incongruous 3 The Frame and wording of Obligations and Bills Obligatory 13 What persons may or may not make Obligations ibid. To whom Obligations may he made 18 Obligations joint or several 32 By what Names bound 16 Of sealing and delivery of Obligations 22 27 Bond to Baron and Feme to Feme covert to Feme sole 18 19 Bond to alien 19 Bond to a Body Corporate ibid. Bond against the Heir Vid. tit Heir Bonds of Arbitrament 301 Bonds of Apprentices 305 Bonds for the Good Behaviour 509 Assignments of Obligations 317 Forgery of Bonds 345 Detinue of Bonds 346 Suits on Obligations 355 Vid. Suits Bond where suable 368 Oyer 381 Outlawry pleaded 441 How and by what means an Obligation good in its Creation may be defeated extinct or discharged by matter ex post facto in Deed or Law 473 478 479 A discharge of a Condition in part is a discharge of the whole 479 Of buying Offices 5â— P. Payment PErsons to whom Performance or Payment to be made or done 110 Of Payment of Mony on a Bond in general 112 What Persons are bound to pay or do by the Condition ibid. Of Payment by Collateral satisfaction 113 Of Payment without Acquittance pleaded to a single Bill 31 Payment how to be taken 112 Time of Payment amongst Merchants 119 Place of Payment when a Place is limited 126 455 When no Place is limited 128 Time of Payment Vid. tit Time Of Payment at several days Of Performance of Conditions 122 c. Et sparsim per tot Performance on Bonds of Covenants where to be pleaded specially and where generally 194 Vid. tit Bonds of Covenants Payment of a lesser Sum in satisfaction 408 409 Place of Payment mentioned in the Condition and Venue 455 Joining Issue on Payment or not 461 What things will excuse the Performance of a Condition 353 Pleadings Where Performance generally may be pleaded and where it must be shewed specially and how 392 Of Pleading non damnificatus 209 395 In many cases the Law allows general Pleading to avoid Prolixity 34 396 Of Certainty in Pleading 397 Regularly it is good to pursue the Words of the Condition and yet he ought to plead the Certainty of time and place and manner of performance 398 In Pleading negatively he ought to traverse all the Condition 399 Where a certain duty accrews by the Deed at the beginning this ought to be avoided by a matter of as high a nature 400 Sometimes matter en fait shall avoid an Obligation ibid. A special Plea in Bar it always to be answered with a special Replication in the point 401 The Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment though the Issue be found for him 401 Pleas in Abatement Vid. Abatement Pleas after Imparlance what are good and what not 404 Concord Acceptance pleaded Vid. Concord Payment of a lesser Sum how to be pleaded 408 Collateral things or satisfaction pleaded in performance or for Payment where good or not 410 Payment pleaded and parcel paid 413 By command of another 415 Where mistake in pleading the Sum or the time is aided and where not ibid. Release pleaded Vid. tit Release Tender uncore prist pleaded 425 In what Cases non est factum is a good Plea and in what Cases and where a special non est factum as in Cases of Alteration Rasure Seals broken c. and Delivery as Escrow 430 c. 439 Estopples in Pleading Vid. tit Estoppel Plea per Duress Vid. tit Duress Plea per Heir to the Bond of the Ancestor Vid. supra Actions of Debt against the Heir Outlawry pleaded 441 Attainder of himself pleaded not good 442 Defendant pleads he was non sane memory no Plea 443 Recusant convict pleaded ibid. Peerage pleaded ibid. Of Foreign Pleas ibid. Foreign Attachment pleaded 445 Of pleading to the Jurisdiction 449 Recovery pleaded in Bar in another Court and against another person 450 Bond to be a true Prisoner for Fees 88 Condition to deliver Possession 228 Pleadings on Scire Fac. against the Bail 277 Condition to satisfie embezilled Goods after due Proof made 306 How Proof to be made 307 Pleadings on Sheriffs Bonds 80 R. OF Rasure in Obligations and Conditions 206 431
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
Debt upon Bond the Defendant pleads the Intestate in her Life by the name of Ellen released c. The Plaintiff replied non est factum Elianorae which was found so by Verdict and well More n. 1192. Panton and Chowles Obligation by the name of John and the Condition by the name of James the Declaration is that James per nomen Joh'is became bound it is not good for John cannot be James Crook El. p. 897. Field and Winlow The Plaintiff declared in Debt against Edmond Watkins alias Edward Watkins that he by the name of Edmund was bound c. The Condition was that if Roger W. paid 50 l. to the Plaintiff at a day then c. The Defendant pleads Payment by Roger and Issue and Verdict pro Quer ' and Judgment But it was reversed by Error for Edward is bound and Edmund is sued which cannot be intended one and the same person and no averment can help it for one cannot have two Christian Names and here is no Estoppel Aliter if the Condition had been if Edward W. pay the 50 l. and the Verdict found for the Plaintiff then the Verdict should make it an Estoppel Crook Jac. 558. Watkins and Oliver Debt on Bond brought against him by the name of Jacob he pleads he was called and known by the name of Jaacob and not Jacob it was over-ruled Mod. Rep. 107. Aboabs Who are bound though not named IF a Man bind himself his Executors are bound though not named not so of the Heir for the Executor doth more actually represent the person of the Testator Cook Lit. fo 209. The Ordinary shall be bound if he administers 2 Rolls Abr. 149. In respect of Obligees To whom Obligations may be made and the Effect To Baron and Feme A. Makes a Bond to Baron and Feme Baron dies Feme administers and brings Debt upon the Obligation as Administratrix she dies before Judgment and her Executor brought Debt upon that Obligation It lies not it was in her a sufficient Election and Waver and that personal duty being a chose in action may well lie in jointure between Baron and Feme Aliter of other persons Noy p. 149. Norton and Glover To Feme Covert IF Bond be made to a Feme Covert and the Husband disagree the Obligor may plead n◠est factum For by his disagreement the Obligation is no Deed 10 Rep. 119. Whelpdale's Case To Feme sole THE Husband after she marries must join with her in the Suit for if cause of Action arise before Coverture though but Trespass where damages are only recoverable they must joyn 1 Keb. 440. Hardies Case To Alien AN Alien born under the Obedience of an Enemy may have Debt on Bond for personal things More n. 852. Walford and Marsham To Corporations A Bishop Parson Vicar Master of an Hospital or other sole Body politick cannot take a Recognisance or Obligation but only to their private and not in their politick Capacity and therefore no Chattel either in Action or Possession shall go in Succession but the Executors or Administrators of the Bishop Parson c. shall have them This is regularly true except a Custom enable it to go in Succession as in the Case of the Chamberlain of London for Orphanage Mony there it goes to the Successor But in case of a Corporation aggregate of many as Dean and Chapter Major and Comminalty c. it goes to the Successor for they in Judgment of Law never die 4 Rep. 65. Fullwood's Case Crook Eliz. p. 480. Bird and Wilsford A Man cannot bind himself to two severally in a Bond but a Man may covenant with two severally for that sounds in damages March Rep. p. 103. I shall in the next place come to the Dates of Obligations and though it may be good without a Date yet when it is dated there is good Learning in our Books concerning the Juries finding pleading c. Date OBligation is good though it wants a Date or hath a false or impossible Date 2 Rep. Goddard's Case Declaration sur Obligation made ultimo die Augusti anno c. upon Oyer of the Bond it bore date 19 Aug. an c. The Defendant pleads non est factum Jury found it his Deed. Judgment pro Quer ' For the Count was not of the date but of the making and the Jury have found the Deed Hob. p. 249. Thorp and Taylor One brought Debt and declares the Defendant 4 Apr. 4 Eliz. made a Bond bearing date the same day and year and the Defendant pleads non est factum and it s found that the Deed was delivered at another day before or after than the Plaintiff hath declared yet Judgment shall be for the Plaintiff for the date is not material and the Defendant cannot be twice charged 2 Rep. 5. Goddard's Case If it be a mistaken date as to the King's Reign or no King's Reign be in or an impossible date or if it want a date its good and the party may surmise a date in the Declaration and it is good and the party ought to answer to the Deed and not to the Date Yelv. 194. Dobson and Keyes Crook Jac. 261. id Case The Obligee cannot alledge the Delivery before the Date yet the Jury may find the truth and tho there wants in cujus rei Testimonium yet its good 2 Rep. Goddard's Case Obligation bears date in France it may be sued in England and it shall be alledged to be at Islington in France for it s not traversable whether there be such a place as Islington or not Cook Lit. 261. b. Latch p. 77. Ward 's Case The Defendant pleads quod factum prae◠was made and delivered sans Date and afterwards the Plaintiff put a Date thereto and so not his Deed ill Plea upon demurrer for the Defendant first confesseth it to be his deed by saying factum praed and then concludes its not his deed Crook Eliz. 〈◊〉 800. Cospes versus Turner In det sur obligation fait 1 Novemb. 12 Jac. the Defendant pleads in Bart an Indenture of Defeasance and shews not the date of it but by these words iisdem die anno referring this to the Plea of the Defendant viz. to the date of the Obligation alledged in the Count the Bar is insufficient for the uncertainty for this shall be intended to bear date before the Obligation for that every deed shall be taken most strongly against him that pleads it Doct. pl. 29. If a Man plead factum suum dat primo Jan. deliberat quarto Jan. he ought to say primo deliberat 4to die Jan. otherwise the word suum imports that this was his deed the first day of Januar. per Dyer 5 Eliz. 221. b. I shall now treat of the delivery of an Obligations being an Essential part or circumstance required thereto and what amounts to a good delivery to the party himself and where the delivery of a deed is traversable and of the Delivery as an Escrow and
time it is adjudged that he must conclude to the Country Et issint nient son fait de hoc ponit c. 3 Keb. 26 30. Forth and Fletcher Edwards and Webb ib. p. 142. Manning Bucknal contra Per Hale An Escrow may be given in Evidence on non est factum as well as Suspension on nil debet in Manning and Bucknal's Case 3 Keb. 142. If a Man be obliged to perform things in such a Deed it is no Plea to say he delivered this as an Escrow c. issint non est factum 1 Rol. Rep. per Cook 84. in Fletcher and Tarrer's Case Sealing THE Plaintiff declares that the Defendant per scriptum suum obligatorium concessit se teneri c. without saying sigillo suo figillat and good in the Common Bench for there the Presidents are so Delivery is never alledged so neither is it necessary to alledge the Sealing When he saith per Scriptum suum obligatorium all necessary Circumstances are intended to concur Crook Eliz. p. 738. Penson and Hodges Witnesses ONE ought not to be allowed to be a Witness to prove an Obligation or other Deed which he takes in the name of another For if he might be so admitted this is on the matter to suffer him to prove a Deed or Bond made to himself Stiles Pract. Reg. 221. Obligations are either Single called a Bill Joynt Joynt or Several Bill A Bill penal is called a single Bond and a Bill may be without a penalty In Debt on Obligation no Oyer being demanded it is intented a single Bill As to the Frame of the Bill and by what Words and in what Form it shall be good I have shewed before in Title The Frame of Obligations Now I shall set down some Cases as to Declarations and Pleadings on Bills A Bill Obligatory written in the Plaintiffs Book and the Defendants Hand and Seal to it is good Crook Eliz. p. 613. Fox and Wright I acknowledge my self to owe and be endebted to J. F. and W. S. in the sum of 91 l. 1 s. 8 d. to be paid the first of Novemb. following for which payment to be made I bind my self to J. S. in 100 l. Qu. Whether F. ought to bring the Action for the 100 l. or both of them for the 91 l. 12 s. 8 d. Crook Jac. 291. Foxal and Sands versus Corderoy A Bill was made in this manner Memorandum That I Will. Jethro do owe and am indebted to Edmond Hamond in the Sum of Ten Pounds for the payment whereof I bind my self c. In witness and after the In Witness it was thus subscribed Memorandum That the said Will. Jethro be not compelled to pay the said 10 l. until he recovers 30 l. upon an Obligation against A. B. c. And in the Count no mention was made of this Subscription but this appears when the Defendant prays Oyer of the Bill the which was then entred verbatim on Record Upon which the Defendant demurs because it is not mentioned in the Count it being a Condition precedent aliter of a Condition subsequent But per Curiam this which is after in witness is not part of the Deed but may be a Condition or Defeasance and so need not be contained in the Count but then the Defendant ought to have pleaded so and not demurred for this makes the Bill conditional Judgment pro Quer. 2 Brownl 97. Hamond and Jethro Bill of 68 l. with Covenant to pay it when such Bills be stated c. the Covenant being in the same Deed works as a Defeasance 2 Keb. 624. Holday and Otway Debt for 40 l. upon a Bill Obligatory and declares that the Defendant by his Bill dated c. confessed himself to be indebted to the Plaintiff in 20 l. solvend at Michaelmas next following ad quam quidem solutionem he bound himself in 40 l. and for Non-payment of the 40 l. the Action brought The Declaration is ill because it is not therein alledged that the 20 l. was not paid at the day for if otherwise the 40 l. was not due for it is not an Obligation with a Condition Crook M. 1 Car. 515. Bains and Brighton 1 Rolls Abr. 414. M. 14 Car. Mesme Case Danes and Brett But in Stiles p. 23 Car. B. R. Debt on a Bill Penal and Verdict pro Quer. It was moved in Arrest of Judgment that the Plaintiff shewed not that the Defendant did not pay the Mony at the day limited in the Bill but only saith non solvit c. 2. He declares the Defendant was bound to pay such a Sum legalis monetae and doth not say Angliae the Court over-ruled both Exceptions and the Plaintiff had Judgment Bill of 70 l. to be paid on demand it is a duty presently and there needs no actual demand Cro. Eliz. p. 548. Cap and Lancaster If the Plaintiff declares generally that he often requested c. and the Defendant demur to the Declaration per Cur. he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good demurrer because a special demand was in the Bill and no special demand alledged in the Declaration 1 Brownl Rep. 56. On a collateral promise to pay mony on demand there must be a special demand but between the Parties it is a debt and sufficiently demanded by the Action Aliter if the Mony be to be paid to a third person or where there is a penalty 3 Keb. 176. Ashenden's Case Debt on Bill to pay 50 l. on demand and on Non-payment the Defendant to pay an 100 l. Action is brought for the 100 l. the Defendant pleads there was no demand the Plaintiff demurs per Cur. the Action is a demand for the 50 l. but no cause to forfeit the 100 l. the Defendant should plead tender of the 50 l. uncore prist But where the Condition of an Obligation is to pay on demand that is a distinct deed from the Bond and there is no Title to the Forfeiture without demand But the debt here of 50 l. is not lost by not demanding therefore in Bar the Defendant must say uncore prist Judgment pro Quer. 3 Keb. p. 577. Ramsey and Rutter Debt on a Bill penal with these words To be paid as I pay my other Creditors The Plaintiff declares generally that he was indebted to him in 5 l. solvend upon Request The Defendant demands Oyer of the Bill and it was entred in haec verba and pleads an insufficient matter upon which it was demurred And this Exception was to the declaration for variance from the Bill for per Cur. he ought to declare specially according to the Bill Judgment for the Defendant Crook El. 256. Bright and Metcalfe The Defendant demands Oyer of the Bill by which it appears the Defendant and two others are bound The Defendant demurs per Cur. pro Quer. The Defendant ought to have pleaded two others sealed the Bill Obligatory who
are in full life Jones p. 303. Vid. Obligation In Debt sur single Bill of 50 l. the Defendant after imparlance pleaded that after the last continuance he had paid the Plaintiff 5 l. parcel of the 50 l. and demanded Judgment of the Bill petit quod billa cassetur the Plaintiff demurs It is an insufficient Plea because the Defendant did not alledge he had an acquittance which he ought to produce if he had an acquittance he might have pleaded in Bar or Abatement but this Plea is not peremptory because it concludes in Abatement respondeas ouster awarded Allen 63. Loder and Hampshire Allen 65. Beaton and Forrest Stiles 212. Hollingworth 15 H. 7.10 Payment without Acquittance is no Plea to a single Bill Crook Eliz. 157. And yet if such Payment be pleaded upon a Bill it being admitted and tryed against him who pleaded it the tryal is good and Judgment shall be given thereupon as in Blunden and Wood's Case Crook Jac. 85. For though Payment without Acquittance be no Plea and Issue is joined upon a thing not material for if the Defendant hath paid the Sum without Acquittance yet the single Bill doth remain in force But in as much as there was an Issue joyned upon an affirmative and a negative which is found pro Quer. it is expresly helped by the Stat. 32 H. 8. and 18 Eliz. Judgment pro Quer. 5 Rep. 43. Chamberlain and Nichol's Case The Plaintiff might have demurred upon the Plea and good Crook Eliz. 455. mesme Case and More n. 908. As in Debt the Defendant demands Oyer which was to pay Mony 31 Sept. the Defendant pleads solvit ad diem and upon Issue joyned found for the Plaintiff The Condition being impossible the Obligation is presently due and it was an Issue upon an insufficient Bar which being found for the Plaintiff is aided by the Stat. Jones p. 140. Jiggon and Purchas Debt upon a Bill whereby the Defendant acknowledged he had received 7 l. of the Plaintiff ad emendum a pair of Bellows c. to the use of the Plaintiff and avers that he had not bought the things nor paid the Mony The Plaintiff in this Case may have Debt or Account Cro. Eliz. p. 644. Earl of Lincoln versus Topcliff Obligations Joynt Joynt and Several By what Words or when an Obligation may be said to be Joynt or Several Actions and Declarations thereon FOUR are bound in an Obligation by these words utrumque nostrum the Obligee may charge any of these severally But if he will have a joint Action of Debt against two of the four the Writ shall abate for if the Plaintiff will charge them joyntly the other two which are not named shall be charged also with them joyntly by the same Deed 10 H. 7.16 34 E. 3. Dyer 129. Two are bound per joint Words and every of them by himself puts his Seal to the Deed this shall not make the Obligation several 10 H. 7.16 Two bind themselves vel alter eorum this makes the Obligation joint or several 7 H. 4l 6. b. Two bind themselves quemlibet nostrum this is joint or several 2 Rolls Abr. 148. Two bind themselves vel utrumque nostrum this is joint or several for this word vel makes it several at Election 2 Rolls Abr. 148. Hankerson and Sir Tho. Sandelon mesme Case vide 1 Brownl Rep. p. 121. Cro. Jac. 322. â— Bulst 70. Three are bound jointly and severally in one Bond the Obligee brought Debt against two this he cannot do but he may have one Precipe against the Three or several Precipes against every one 27 H. 8.6 singulos nostrum 1 Brownl 121. is joint or several Three were bound in a Bond by these words Obligamus nos quemlibet nostrum conjunctim It s a joint Bond and not several for the word quemlibet is expounded by the word consunctim 3 Leon. p. 206. Wigmore and Wells More p. 390. Uterque recognovit makes a joint Bail Bond or several at election Cro. Jac. p. 45. Hargrave and Rogers Noverint universi nos I. B. A. K. H. F. teneri c. ad quam quidem solutionem c. Obligamus nos Haeredes Executores Administratores nostros sigillis nostris sigiâ—at Plaintiff declares against the Defendant soâ—e Defendant demurs upon Oyer because it appears upon Oyer that they are joint Per Cur. The two others are named yet it appears not that they put their Seals to it and so the Obligation is single but if the truth were that the other two had sealed as well as the Defendant then the Defendant if he would take advantage of this ought not to have demurred upon the Oyer but he ought to have pleaded in Abatement that the other two Persons sealed the Obligation who are yet in full Life and so pray Iudgment of the Bill 1 Sanders Trin. 21 Car. 2. fol. 271. Cabel and Vaughan Though sundry Persons may bind themselves quemlibet eorum and so the Obligation shall be joint or several at the election of the Obligee yet a Man cannot bind himself to three and to each of them to make it joint or several at the election of several Persons for one and the same cause for the Court shall be in doubt for which of them to give Judgment which the Law will not suffer 5 Rep. p. 18. b. If Merchants in a Charter-Party covenant with the Owners separatim that one Merchant shall pay 3 l. another 3 l. and so of the rest the words are conveniunt seporatim and at the end there is such a Clause Et ad performation omnium singular ' convention ' ex parte praedict ' Mercator ' perimplend ' quolibet Mercator praedict ' separatim obligat seipsum praefato Majori pro Proprietariis en double le fraight the Covenant is several and so is the last part videlicet the Obligation 5 Rep. Mathewsons Case 2 Rolls Abr. 149. In an Indenture there are three of the one part and two of the other part in which the two covenant jointly and severally to do a certain thing and the third covenants jointly and severally with the said two after the performance of the said thing by the two to pay to the said two a certain Sum for each particular c. and after ensue these general words Pro vera reali performatione omnium articulorum agreamentorum praedictorum alternatim utraque partium praedictarum obligavit se Haeredes Executores c. in subter penalitatem 60 l. Sterlingorum This Covenant is joint and not several and an Action on the last Clause cannot be brought against one of the said three only 2 Rolls Abr. 149. If an Obligation be writ in the Name of two joint and several and they severally deliver the Obligation at several times and places this is yet joint and several 8 H. 6.31 Debt on joint Obligation vers Survivor Defendant pleads one of the Obligors died and the Plaintiff
afterwards released to his Executor the Release is void alit had the Obligation been joint and several 1 Keble 936. Scot and Littleton Joint Bond by three and Count General the Jointure appearing upon Oyer demanded the Court will intend they are dead or not sealed had the Declaration been on a joint Bond the Plaintiff must aver the death of the others or that they never had sealed 1 Keble 936. Tr. 17 Car. 2. Osborn and Crossland vide plus Doct. Placit 268. Two are bound jointly and one is only sued he may plead this matter in abatement of the Writ but he may not plead non est factum Co. L. 283. Two are jointly bound in an Obligation Action is brought against one of them only upon this the Defendant cannot demur but may plead in Abatement Siderfin 2.12 And if one of the Obligors die the Obligee in his Action of Debt against the other that survives must set forth in his Declaration that the other is dead Four were bound conjunctim divisim to B. B. had Judgment against them and one of them dies B. sues forth a Sci. Fac ' against the four its ill Stiles Trin. 23 Car. p. 50. Blackwell and Ashton When two are jointly bound in an Obligation though none of them is bound by himself yet none of them shall plead non est factum but he may plead in Abatement of the Writ for they had sealed and delivered it and every of them is bound in the entire therefore if they two are sued and one appears and the other makes default and by Process of Law he is Outlawed he which appeared shall be charged with the whole 5 Rep. 119. Whelpdales Case The Defendant pleads he was bound simul cum R. G. to whom the Plaintiff had released all Actions the said first day of May that being the date in the Declaration the Plaintiff by Replication shewed that after the Obligation sealed by R. G. he released to him and after i. e. the same day the Plaintiff sealed the Bond absque hoc quod simul tenetur cum R. G. The Defendant demurs this Release doth not discharge the Defendant and per Cur. the Traverse is ill because R. G. was bound with the Defendant but because the Defendant had not taken advantage of it to shew it on the Demurrer but confess it Judgment pro quer ' Cro. Eliz. p. 161. Mannings and Townsend Two brought Debt on Bond the Defendant pleads that the Obligation was made to them and to one Bellamy and that they three had an Action of Debt depending against him Judgment si Actio and demur Adjudged pro quer because an Obligation made to two on which they counted cannot be intended an Obligation made to three and if it be a Plea it s in Abatement of the Bill Cro. Eliz. p. 202. Isan and Hichcock Debt on Bond by three brought against one without shewing the other two are dead the Plaintiff ought to shew the others were dead but in Whelâ—dales Case this advantage was waved on non est factum pleaded also the Obligation being Obligamus nos it shall not be intended the others did not seal but if they had not the Count should have one Writing by three whereof two did not seal 1 Keb. fol. 840. Osborn against Cawthorns Executors Conditions of Obligations 1. The Nature of such a Condition 2. The distinct respects or differences thereof in our Law 3. What shall be said a good Condition of an Obligation and what not 4. The Exposition of Conditions or when a Condition shall be said to be performed and when not 5. How a Condition and Obligation may be discharged and gone by matter ex post facto The Nature of a Condition WHen an Obligation is clogged with a Condition it s called a Bond conditional or double Bond when it is in another Deed or Instrument it s called a Defeasance but it is commonly subscribed under the Obligation or included within the Body of it or indorsed upon the back of it and if the Condition be performed the Penalty is saved if not the Penalty is forfeit The Condition is always for the benefit of the Obligor 1 Sanders 66. Butler and Wig and shall be construed favourably for his advantage Cro. El. p. 396. Greninghams Case 1 Leon. p. 142. Condition to perform an Award the Arbitrator made Award 24 March that the Defendant should pay to the Plaintiff 10 l. at Michaelmass next the Defendant pleaded the Plaintiffs Release of all Actions and Demands made the 10th of April Per Cur. the Release is no bar to the Plaintiffs Action difference is where Obligation is entred for payment of Mony at a day to come there it s a Debt presently and may be discharged by such Release before the day of payment but not so in case of Annuity Rent and an Action of Debt for non performance of Award to pay Mony at a day to come Cro. Jac. p. 300. Tyman and Bridges The several sorts of Conditions Some are in the Affirmative to do an Act suffer an Act. Some in the Negative Some are to pay Mony and some are to do a collateral Act. Debt on Obligation to stand to the Award of J. S. the Defendant pleads no Award Plaintiff replies and shews the Award but assigns no Breach its ills for the Obligation is not for any Debt but this is guided by the Condition which goes in performance of a collateral thing viz. of an Award Yelv. fol. 152 153. Barret and Fletcher Cro. Jac. 220. Some Conditions are Precedent and executed and some are Subsequent and executory If A. acknowledge by his Bill obligatory that he owes to B. 20 s. and for the payment of this at a day he binds himself in 40 s. by the same Bill in debt upon this Bill for 40 s. he ought to aver that A. had not paid the 20 s. otherwise it s not good 1 Rolls Abr. 414. Danes and Bret. An Award is made by Arbitrators between A. and B. that A. shall pay 10 l. to B. and in consideratione inde B. shall be bound in an Obligation to A. to release all his Right in certain Land c. In this Case B. is to be bound in the Obligation though A. had not paid the 10 l. for it is not a Condition precedent and there is a mutual remedy of each Party if the Award be not performed 1 Rolls Abr. 415. Vivian and Shipping If the Condition of an Obligation be in such manner The Condition of this Obligation is such That if the above bounden A. B. do discharge the Obligee of such Recognizance c. And whereas also the above bounden A. B. hath agreed to free and discharge the said Obligee from two several Obligations c. Now the Condition of this Obligation is such That if the said A. B. do save and keep harmless the Obligee of and from the said two several Obligations then this present Obligation to be void the last words
be presented so that he would resign when the Son of J. was qualified Whereupon the Defendant entred into a Bond of 1000 Marks on Condition having first recited the Agreement that if the Defendant within three Months after request should absolutely resign the said Benefice that then c. In Debt on this Bond the Defendant pleads non requisivit which was found against him And in Arrest of Judgment it was moved that this Bond was made on Simoniacal Contract and so void But the Court gave Judgment for the Plaintiff 1. Because there was no Averment of the Simony 2. That it was not material as to the Bond because that Statute doth not make the Bond or Contract void but only the Presentation The sense of the Court in that Case was that in truth if a Man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take of such person as he shall present a Bond to resign when his Son is become capable of such Living But if a Patron take a Bond absolutely to resign upon Request without any such cause as the Presentment of a Son or to avoid Pluralities or Non-Residence or such reasonable cause but only to a corrupt end to exact Mony by this Bond from the Incumbent or attempt it tho the Bond may be good against the Obligor yet it makes the Church become void and gives the Presentation to the King It seems in this Case if Simony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was Crook Trin. 8 Jac. 248 274. John and Lawrens Sir Simon Degg p. 54 55 56. Such a Condition was in Wood and Babington's Case to resign into the hands of the Bishop of London Upon Oyer of this Bond and Condition the Defendant demurred Judgment pro Querente But per Cur. If the Defendant had averred that the Obligation had been made with intent to exact Mony make a Lease c. which in it self had been Simony then it might have been a Question whether this Bond had been good or not but upon this Demurrer it doth not appear there was any Simoniacal Contract and such Bonds might be for good and lawful ends ut supra Crook Car. 180. A Condition to resign on Request which was If Jo. Watson do and shall upon the first of Octob. next or before if the said William Baker at the Parsonage-House of Cowley shall request the same and before John Watson shall take another Benefice in due manner resign the said Rectory Parsonage or Benefice of Cowley aforesaid unto the Bishop or Ordinary of the Diocess whereby the Rectory may become void and the said William Baker may lawfully present to the same then this Obligation to be void The Defendant after Oyer pleads Resignation the Plaintiff replies he did not resign Et hoc petit c. The Defendant demurs for that the Condition is void Per Cur. it hath been above a dozen times adjudged that the Condition is good Quaere if the Resignation shall be tryed per pais or by Certificate 2 Keb. 446. Siderfin p. 387. Baker and Watson M. 20 Car. 2. B. R. In Debt on Bond for payment of Mony at a day certain The Defendant pleads it was made upon a Simoniacal Contract for the Presentation to a Benefice c. per Cur. it is no Plea because it was averred by matter debors and appeared not within the Deed and an Averment shall not be that it was paid for other causes than the Obligation expresseth More n. 729. Noy p. 72. Gregory and Older The Condition was if Web the Patron presented the Defendant and if the Defendant continued Incumbent for a year and after the year at all times within three Months after Notice and Request was ready to resign and did resign the Benefice to the Ordinary to be presented thereto again by Web and should not before resign that then c. The Defendant pleads Stat. 13 14 Eliz. and that after he was inducted he made a Lease to the Plaintiff of the Benefice for 21 years and averred the Obligation was made for enjoying the Land by Lease The Plaintiff demurs Per Cur. the Plea was good but the Averment not sufficient Judgment pro Quaer More n. 835. Web and Hargrave Against Stat. 13 Eliz. c. 20. 14 Eliz. c. 11. Of Non-Residence NO Lease to be made of any Benefice or Ecclesiastical Promotion or any part thereof and not being impropriated shall endure any longer than while the Lessor shall be ordinarily resident and serving the Cure of such Benefice without absence above 80 days in any one year And all Bonds and Covenants for suffering any such Parson to enjoy any such Benefice with Cure shall be void 13 Eliz. c. 20. 14 Eliz. c. 11. either by Parson or Curate the Lease was made to the Curate who leaseth over Qu. If the absence of the Parson shall make the Lease void 1 Leon. p. 100. St. John and Petit's Case Upon the Statute 13 Eliz. of Leases made by Parsons that upon Non-Residence for 80 days the Lease shall be void this Statute voids Bonds for Non-Residence If the Condition be that after Institution and Induction he shall at all times after be ordinarily resident and serve the Cure without being absent 80 days during any one year that he shall be Parson of the said Church this is a good Condition without Averment taken to be for a Simoniacal purpose 1 Rolls Abr. 417. Cary and Yeo. The Condition was that if the Defendant be not absent 80 days from his Benefice nor resign without the assent of his Patron then c. The Defendant pleads Stat. 13 Eliz. That all Leases of Parsons made of their Benefices where they are absent 80 days ultra and all Obligations for enjoying them shall be void and saith he was absent by the space of 80 days and saith not ultra it was held an incurable fault in the Plea Cro. Eliz. p. 88. Gosnal and Kindlemarsh Such another Case in Crook Eliz. p. 490 Earl of Lincoln versus Hoskins Such a Plea was naught 1. The Statute was misrecited tam diu where the words are tam cito 2. Because it is not alledged that he was absent for otherwise neither Lease nor Bond are void Against Statutes of Usury 13 Eliz. c. 8. 21 Jac. 12 Car. 2. c. 13. How and when such Obligations become void or not and the Pleadings thereon IF the Contract be not usurious it shall not be made Usury by mater ex post facto A Bond for 60 l. and gave Bond to pay it and 6 l. Interest at the end of the year and before the end of the year the Obligor pays 6 l. for Interest it is not Usury 1 Bulstr 17. Anonymus A Condition to pay 20 l. per annum during Life it is no Usury but an absolute Bargain had there been any provision
post Oct. Pur. and not by any Writ returned Veneris c. The Defendant rejoined that he was in Custody by Vertue of a Writ returned Veneris post Oct. Pur. absque hoc that he was taken by any Writ returned Sab. post Oct. The Plaintiff demurs Per Cur. this is no Traverse upon a Traverse and there would be no Traverse in the Replication which would make an end but in the Rejoinder it doth 2 Keb. 105.94 Bennét and Philkens 1 Sanders p. 20. id Case 3 Keb. 656. Gold and Cutler 791. Sturges Case The Defendant pleads to a Sheriffs Bond taken for his appearance in B. R. die Sab. prox post Oct. Sancti Martini and that he appeared at the day and the Court of Common Pleas gave him a day to bring the Record of his appearance by Mittimus out of the Chancery the Record was certified viz. that he appeared Lunae prox post 15 Martini which was after the day and adjudged good for if the appearance be the same Term it is good 1 Brownl 58. Statfield and Grony 1 Brownl 74. Carter and Freeman To plead an appearance and not to say prout patet per Record is naught 1 Brownl 91. Andrews and Robins A Condition to save harmless a Serjeant at Mace for letting the Defendant go on a Protection of the Lord of Bath The Defendant pleads the Statute of H. 6. and misrecites it The Plaintiff replies he was Bail for the Defendant and for saving harmless of that it was given the Plaintiff is estopp'd by the Bond to plead it was in another manner 2 Keb. p. 278 334. The Defendant pleads the Statute and that it was for Ease and Favour and not for a just Debt The Plaintiff saith it was for a just Debt absque hoc that it was for Ease and Favour Judgment pro Quer. for not joyning Issue 2 Keb. 554. Debt on a Bail Bond to appear Defendant pleads before the day he was taken by Cap. Utl. and deteined till after the day and so could not appear The Plaintiff demurred Per Cur. it is an ill Plea for the Party may remove himself by Habeas Corpus and all Bail Bonds may be thus avoided 2 Keb. 622. Jeoffries and Cooper And the Plaintiff doth but his duty Siderfin p. 406. id Case A Bond to be a true Prisoner for Fees c. THE Marshal takes Bond of one in Execution to be a true Prisoner who escapes Action brought against him it is a good Bond Latch 143. Sir G. Reynel versus Elworthy Poph. 165. Sir G. Reynel's Case The Marshalsey ruled to be enlarged and this shall be called within the Rules and if the Marshal take a Bond to tarry there it is good ibid. A Bond to the Marshal to save harmless from Escapes is void and within the Statute because not a Bond that he shall continue a true Prisoner Vid. the Condition Record and Pleadings 1 Sanders 160 161 162. Lenthale and Cook 2 Keb. 422. Siderfin 382. mesme Case The Defendant demands Oyer of the Condition that the Defendant being a Prisoner and in the Custody of the Plaintiff shall be a true Prisoner and shall not make any Escape The Defendant pleads Stat. 23 H. 6. and saith that this Obligation was taken by the Plaintiff colore officii sui and that it was for ease and favour to the Defendant The Plaintiff replies the said Obligation was taken for the better Security of the Defendant absque hoc that it was for ease and favour the Defendant demurs Judgment pro Quer. For the intention of the Obligation was for ease and favour but traversing this had taken this away and when the Defendant had such Issue offered and refused it and demurs the Defendant agreed it was not for ease and favour a little Evidence in such case would serve to prove ease and favour Siderfin 283. Lenthal and Cook From Queen Eliz. time such Bonds have been usually taken after Issue such Bond is good 2 Keb. 423. To be a true Prisoner and to pay Fees is void for it is entire 10 Cook 100. b. A Bond to the Warden of the Fleet to be a true Prisoner Defendant without pleading the Statute saith it was for ease and favour The Plainiff demurs This Bond is void at Common Law this is a publick Law and need not to be pleaded The Plaintiff should have traversed the Ease Judgment pro Def. 3 Keb. 320 361. Oakes and Cell The Warden of the Fleet takes a Condition for true Imprisonment of M. and to pay all Fees and Chamber Rent The Defendant pleads the Statute that it was for Ease The Plaintiff replies the Proviso which excepteth the Warden and traverseth not the true Imprisonment it is ill The Obligation is void at Common Law and the Defendant need not plead the Statute The Warden or other Gaoler cannot impose what Rents they will on their Chambers 3 Keb. 133 603. Duckenfield and Wood. Since 13 Car. 2. c. 2. persons arrested by Process out of the Kings Bench or Common Pleas not expressing the Cause out of the Action in the Writ Bill or Process shall give Bail-Bond not exceeding the Sum of 40 l. and an appearance entred shall discharge a Bail-Bond yet if the Sheriff take 150 l. Bond in such Case it is a Misdemeanour but the Bond is not void 2 Keb. 287 311. Yet he may bring an Action upon the Statute against the Sheriff ibid. p. 311. Out of this Act 13 Car. 2. are excepted Arrests upon Cap. Utleg Attachements on Rescous Contempt and of Priviledge the said Act doth not extend to any popular Action nor to any other Action brought upon any penal Law or Statute except Debt for not setting out of Tit◠nor to any Indictment Presentment Inquisition Information or Appeal Upon a Statute acknowledged and Extent sued the Sheriff takes Bond of 20 l. for the payment of 10 l. for his Fee and this was before the Liberate adjudged the Bond was void for the Statute of 28 H. 8. gives him an Action of Debt for his Fee and he must not have a double Reward 1. Because he took the Bond before the Liberate 2. He took his wages before he had done his work Latch 10. Epson's Case A Leafe of a Bailywick contra 23 H. 6. cap. 10. 3 Keb. p. 678. Ellis and Nelson A Condition repugnant or not IF the Condition be repugnant to the Obligation it self there the Condition is void and the Obligation is good As if the Condition be that the Obligee shall not sue for the Mony in the Obligation The Condition is void and the Obligation is single and yet this may be done by a Defeasance made after the Obligation 7 H. 6.44 21 H. 7.24 30. If the Condition be that if the Obligee shall pay to J. S. 10 l. at such a day then the Obligation being 100 l. shall be void otherwise not although this was not the intent of the parties yet the Condition is good for if the Obligee do not pay the 10
he is not bound to pay before Request 1 Rolls Abr. 438. Qu. A Condition to make assurance before the 10th of March and if the Obligee refuse the assurance and shall make Request to have 100 l. in satisfaction of it then if upon such Request within five Months after he pay it then c. he refused the assurance and ten years after he makes Request to have the 100 l. Per Cur. it is good and he may make Request during his Life Crook Eliz. p. 130. Boyton and Andrews Id. Case 1 Leon. p. 185. The Condition is to do a thing upon Request the Plaintiff must make Request to the person and not by Proclamation giving notice of the Request 1 Rolls Abr. 443. Gruit and Pinnel Request to c. Bridgm. Rep. 39. Allen and Wedgwood 1 Rolls Rep. 373. Crook Eliz. p. 62. Gallies Case Keilway 95. Place of Payment or Performance Where a Place is limited A Condition to pay Mony at London the Action laid in Shrewsbury 2 Leon. 37. Jay's Case If the Condition of an Obligation be to appear coram Justiciariis apud Westm he ought to appear in B. and not in B. R. Musgrave and Robinson 1 Rolls Abr. tit Condition 445. If a place of Payment be limited by the Condition he is not bound to pay this in any other place 17 E. 3.16 1 Rolls Abr. 445. If a place be limited by the Condition where it shall be performed the othere is not bound to receive this in another place If the Condition be to come to A. at Dale to aid him with his Counsel it is not performed if he tender his Counsel at the day at another place 1 Rolls Abridg. p. 446. In Debt on an Obligation to pay at the House of Y. in Woodstreet magna The Defendant pleads payment at the House of Y. generally and the Visne is from the Parish of Woodstreet generally Verdict and Judgment pro Quer. It is no Error it is only in Fact and should have been pleaded 1 Keb. 440. Ashburnham versus Braham The Condition was if he paid such a Sum of Mony at Newton Petrarch that then c. The Defendant pleads payment at the day at Newton praedict the Venire Fac. being at Newton only A Ven. de novo was awarded Crook Jac. p. 326. Dennis Case A Condition to pay 10 l. at S. such a day or 10 l. at S. such a day tender at D. the first day saves the Condition 22 Ed. 4.52 1 Rolls Abr. 444. A Condition to pay 10 l. at D. if the Obligee accept this at another place it 's a good performance sans fail 1 Rolls Abr. 456.11 Where no Place is limited IF no place be limited in the Condition for payment of the Mony he must tender the Mony to the person of the Obligee but if the Condition be to deliver 20 Quarters of Wheat or 20 Load of Timber c. The Obligor before the day must go to the Obligee and know where he will appoint to receive it and there it must be delivered If the Condition be to make a Feoffment it is sufficient to tender it upon the Land for there the Livery must pass Co. Lit. 210. b. If the Obligee be out of England he is not bound to seek him ibid. If a Man be bound to pay 20 l. at any time during his Life at a place certain the Obligor cannot tender the Mony at the place when he will for then the Obligee should be bound to a perpetual attendance but the Obligor must give the Obligee notice that at such a day he will pay the Mony and the Obligee must attend there to receive it for if the Obligor then and there tender the Mony he shall save the penalty of the Bond for ever Co. Lit. 211. a. But if the Obligor at at any time meet the Obligee at the place he may tender the Mony ibid. There is a difference between a place of payment limited in the Obligation and a place limited in the Condition of the Obligation For if I am bound to you in 20 l. to be paid at D. if I pay it to you at another place this shall not excuse me but if I am bound in 20 l. on Condition that I shall pay it you at D. if I pay this 20 l. at another place it is good if you receive it 11 H. 7.17 9 H. 7.20 b. Lord Cromwels Case If the Mony be paid at any other place and received before the day it is good Cook Lit. 211. a. A. is bound to B. that C. shall enfeoff D. such a day C. is bound to seek D. to give him notice and request him to be on the Land to receive the Feoffment ibid. Debt upon a Bond for payment of Mony there being no place named in the Obligation where it shall be paid The Defendant pleads the Plaintiff was beyond Sea at the day of payment and saith not uncore prist Per Cur. this a good cause of demurrer Siderfin p. 30. H. 12 13 Car. 2. B. R. Hobson and Rudge A Condition for a common Chirurgeon to instruct his Apprentice in his Trade and to keep him in domo sua propria servitio If he send him a Voyage to the East Indies to exercise his Trade it is a Forfeiture but he may send him to any place in England to a Patient Aliter if it were a Merchants Apprentice 1 Rolls Abr. tit Condition p. 445. Coventre and Boswel The Lessee is bound by an Obligation to pay the Rent the Lessee is not bound to seek the Lessor to tender it on the Land Hobart p. 8. Baker and Spain In Debt on an Obligation to pay at the House of one Y. in Woodstreet magna The Defendant pleads payment at the House of Y. generally and the Visne is of the Parish of Woodstreet generally Verdict pro Quer. and Judgment It is no Error it is only in Fact and should have been pleaded 1 Keble p. 440. Ashburnham versus Braham Debt in an inferior Court the Condition was for the payment of Mony at a time but no place was limited in the Condition for the payment thereof Judgment pro Quer. 'T was Error because there appears no place of payment So that by that it cannot appear whether the cause of Action lyeth within the Jurisdiction of the Court where the Action was brought or not therefore it should have been made appear by some part of the Record that the Mony was to be paid within the Jurisdiction of the Court which is not here done and therefore Judgment erroneous Stiles p. 2. Masterman's Case Judgment in the Court at Barnstaple upon an Obligation and assigns for Error that the Condition was to pay Mony at W. which is not within the Jurisdiction of the Court Per Rolls if it appear by the Declaration that the Mony was to be paid out of the Jurisdiction of the Court the Judgment is not good and it is not necessary to swear this Plea Stiles p. 225.
Car. 76. Chapman and Chapman But because the Defendant pleaded generally quod perimplevit omnes conventiones c. which implies a Payment of the Rent and the Plaintiff assigns for Breach that it was in arrear such a day The Defendant demurs and so confesseth it was not paid The Plea was ill though in such Case the Obligation is not really forfeited unless there be a demand of the Rent Crook Eliz. p. 828. Specot and Sheeres A Condition to perform Covenants in an Indenture whereby he lets Land rendant 10 l. per annum or within six days after the Feast The Defendant pleads performance The Plaintiff assigns a Breach that he such a day being the sixth day after the Feast before Sun-set demanded 3 l. Rent then due and that neither the Defendant nor any for him was ready to pay it for which c. Per Cur. 1. He need not shew the certain time when he came nor how long he remained there 2. Whereas it was objected this demand was not good because he demanded it as a Rent then due for he ought to have demanded it as a Rent due the last Feast But per Cur. it is not due to be demanded till the sixth day though the Tenant if he will may pay it before 3. The Condition being for performance of Covenants Payments and Agreements the Non-payment of Rent upon demand on the last day was a Breach of the Bond Crook Jac. 499. Thompson and Field Debt on an Obligation conditioned to perform Covenants and to pay Rent The Defendant on Oyer pleads performance to which the Plaintiff demurs as being no special Answer to the Rent which per Cur. is ill Judgment pro Quer. 3 Keb. 60. Betent and Frim Per Hales If the Lessee covenants to perform Articles in an Indenture it is sufficient to say the Rent was demanded but if there be an express Covenant to pay the Rent there needs no demand 3 Keb. 299. in Drew and Baylies Case A Condition to perform Covenants in a Lease The Defendant pleads Conditions performed The Plaintiff assigns a Breach for Non-payment of Rent The Defendant pleads to this a Release of all Demands Per Cur. this Rent is not released by all Demands Siderfin p. 141. Hen and Hanson In Debt on a Bond the Condition to perform Covenants of payment of Rent and another particular The Defendant pleads Covenants performed generally Plaintiff demurs because he should have pleaded to each particular performance or other particular Plea and so whereever particulars are specified but when it is to perform Covenants in an Indenture performance according to the Indenture is sufficient 2 Keb. 362. Brown and Talderly On performance pleaded the party cannot after plead Rent was not demanded Aliter on a particular Covenant to pay Rent for perimplevit implies actual performance not by way of excuse 2 Keb. 848. Forth and Lewin The Lessee covenants to pay his Rent to the Lessor and he pays it before the day the same is not any performance of the Covenant Aliter of a Sum in gross 1 Leon. p. 136. in Littleton and Pernes Case The Condition was that the Defendant should pay to the Plaintiff 10 l. which is for Rent of certain Lands The Defendant alledged the Plaintiff had entred upon the Land and so a suspension The Plaintiff demurred and adjudged for him for this being but a recital that it was for Rent is not material it seems the same though he had applied it by pleading to the Lease Heb. p. 130. St. John and Diggs On Covenants in a void Lease THE Covenants depend upon the Lease and the Bond upon the Covenants If a Lease be made and after surrendred all the Covenants and Bonds for the performance of them are void also in Sapeans and Skurro's Case Yelv. p. 19. Quaere A Grant or Assignment of so much of a Term as shall be unexpired at his death and a Covenant that the Grantee shall quietly enjoy the Grantor dies in Bond for performance the Action of Debt is brought against the Executor though the Assignment be void but this is a Covenant by it self and the Breach was that the Executor entred on the Grantee Per Windham the difference is where a Deed is void in the Fabrick there the Covenants on it are void as when a Freehold is to commence in future and where there is only want of Interest in the party Grantor which the Court agreed 2. The Condition was to keep and perform all Covenants generally which being void the Bond is single if there had been no Indenture the Bond had been good single 1 Keb. 130. Cavenhursts Case A Parson made a Lease for years and became bound to the Lesse to perform the Covenants in the Lease The Defendant pleads the Lease is void by the Statute of 14 Eliz. because he was absent from his benefice above the space of 80 days Per Cur. the Plea is good as to that Point 3 Leon. p. 102. Cox's Case One that is mere Laicus being instituted and inducted made a Lease for years of the Rectory which was confirmed by the Patron and Ordinary In Debt for performance of Covenants Per Cur. this Lease shall bind the Successor Incumbent Crook Eliz. Costard and Windet To perform Covenants in a Lease against Stat. 32 H. 8. Leases made to Alien Artificers void Siderfin p. 357. Freeman and King 1 Sanders Javans and Harweck Siderfin p. 309. An Obligation to perform Covenants of an Obligation void by the Statute of 14 El. c. 11. 1 Lâ— p. 100. St. John and Petits Case If the Indenture of Covenants be made void as by Release c. the Bond is void 2 Keble 116. On Covenants in a Mortgage A Grant Bargain and Sale of certain Lands with a Proviso that if the Defendant did not pay 40 l. such a day then it should be void The Condition was to perform all Covenants Clauses Payments and Agreements contained in the Deed This doth not extend but to compulsory Payments and not to the voluntary Sum in the Proviso for if he choose not to pay he may forfeit the Land to the Plaintiff Yelv. p. 206. Bristow versus Knipe 1 Bulstr 156. Id. Cro. Jac. 281. Id. Case Debt on an Obligation to perform all Conditions Covenants Payments in the Indenture The Defendant pleads one Condition was of a Lease to pay on a Mortgage or to be void and that he was not bound to perform it The Plaintiff demurs Vid. 3 Keb. p. 387. adjudged for the Defendant because the Land was to be lost for Non-payment 394. Per Hales the word Conditions would be idle if this were not effectual aliter if the word Conditions was not in and then it would be at the Mortgagors Election to pay or forfeit But here perhaps the Lessor had no Title and so it is requisite the Mortgagee should have his Mony 437. Per Cur. were it a Condition in the Indenture specially recited in the Bond though thereby the Mortgage was
forfeited the Bond is so too upon Non-performance but being general to perform all Covenants and Conditions it binds only to such as are compulsory 3 Keb. 454 460. Toomes and Chandler On Covenant for Reparations THE Plaintiff assigns the Breach in one Covenant whereas the Plaintiff had leased Houses c. the Defendant did covenant to repair all the said Houses alia quam quae appunctuat forâ—t divelli pro Quâ—r and shewed that the Defendant had not repaired the Messuages to him demised and averred that the House in which the Breach of Covenant is assigned non fuit appunctuat divelli Per Cur. this Averment was superfluous for if the House in not repairing of which the Breach is assigned was appointed to be pulled down the same shall come in on the Defendants part to whose benefit it trencheth for such appointment doth discharge the Covenant as to that 1 Leon. fo 17. Sir John Smith's Case The Plaintiff assigned a Breach in Non-reparation The Defendant pleads the Plaintiff had acquiâ—d and discharged him of all Reparations The Plaintiff demured Per Cur. this is an acquittance and discharge of the Reparations for the time past as well as the time to come and amounts to as much as if he had released that Covenant but the Covenant being broken that discharge shall not take away the Action on the Obligation which was once forfeited 3 Leon. p. 69. Anonymus A Condition to perform Covenants in a Lease which recites a Lease of a Brew-house and a Mill in occupation of F. with Covenant to repair all the Premises The Defendant pleads general performance as to the Brewhouse and as to the Mill the Tenant did not attorn The Plaintiff demurred per Cur. this is no excuse though there be no Remedy for the Rent till Attornment yet it was the Defendants fault he did not take a Covenant that the Under tenant should attorn 1 â—eb 879. Lewin and Forth A Bond conditioned to deliver up an House repaired at the end of the Term. The Defendant pleads the Plaintiff agreed he should hold it for a longer time it is a good Plea though a Covenant is not discharged without a Deed wâ— it is to do any collateral Act 2. Keb. 99. Mâ— and Rainsborough A Condition to repair and sustain two Mâ—ssâ—ages at all times The Defendant pleads he had performed the Condition in all except as to one Kitchen which at the time of the Demise was so ruinous that he could not repair it but he pulled it down and rebuilt another c. this had been a good Plea in Action of Wast not here where he hath by his own Act tyed himself to a disadvantage 2 Leon. 189. Wood and Avery Pleadings on Bonds of Covenants Variance DEbt on Bond of Covenants After Verdict it was moved in Arrest of Judgment that the Defendants Plea was that praedictus Ed. did covenant that R. was seised whereas the Defendants name was Robert that did covenant this misrecital is not material because here is a good affirmative and the Bond if this be misrecited is single Contra if it had been an Action of Covenant or when the Indenture by prayer of the Defendant is entred in haeâ— verba 1 Keb. 126. Siderfin p. 49. Pegg and Waâ—ere Variance between the Indenture and the Declaration shall not stay Judgment after a Verdict Siderfin p. 49. Pegg and Waters The Covenant was that he will assure convey and assign a Lease The Defendant pleads performance The Plaintiff assigned the Breach quod non assuravit conveiavit transposuit Anglice set over and the Defendant pleaded quod assuravit conveiavit assignâ—t Anglice set over and the word transposuit is not in the Covenant nor in the pleading of the performance thereof It is Issue misjoyned 2 Leon. p. 116. n. 155. Grayâ— and Constable In a Debt on a Bond of performance J. and A. were named in the Bond but the Indentures as pleaded were only betwixt J. of the one part and the Defendant of the other but were re vera betwixt J. and A. on the one part and the Defendant on the other Per Cur. it is a variance and Judgment pro. Quer. 1 Keb. 127 167. Pavie and Hall Where Covenants are special they must be specially answered unto and particularly 2 Keb. 54. Herrick and Sanderson Against a negative or disjunctive Condition the Defendant must plead specially Debt on a Bond for performance of Covenants the Defendant sets forth the Covenants by a Testatum existit its ill this in a Plea in Bar or Debt on the Indenture is naught aliter in Covenant 2 Keble 54 79. Anslows Case Debt on Obligation conditioned for performance of Covenants in quadam Indentura bie in Curia prolat ' and in truth the Deed was not indented adjudged pro Quer. Cro. El. 472. Frampton and Stiles 5 Rep. 20. b. In Barnstaple Debt on Obligation to perform Articles the Defendant pleads performance this Bar is ill not setting forth the Indenture below The Plaintiff alledges non-payment to J. S. secundum formam Articulorum Per Cur. the general Replication is well enough without setting forth the Indenture but the Plaintiff by alledging the Breach hath waved the ill Bar 3 Keb. 605. Lâ— and Pigsly In Debt on Bond conditioned for performance of Covenants in an Indenture the Defendant pleads peformance generally this is not good unless he shew the Deed and plead this And it is not sufficient to shew the Deed when the Plaintiff replies and prays Oyer because the Plea of the Defendant ought to be special if any of the Covenants are in the negative and it doth not appear to the Court whether the Covenants are negative or affirmative until the Deed be shewed if the Party who will plead the Deed had it not he ought to move the Court for to have the Deed or a Copy Siderfin p. 50 97. Lewes and Ball. Vide plus postea Tit. Oyer The Defendant pleads there are no Covenants Per Cur. this being general of all is well cont if it were to perform any certain Covenant but the Party is estopt to say there is no Indenture 1 Keble 381. Brazier and Acton Mod. Rep. in Holloways Case yet 2 Keble 564. Smith and Yeoâ—ans cont but that was because of the shifting way of pleading The Condition was Whereas J. S. claimed to have a Lease for years of D. granted to him by W. if the said Defendant keep without damage the Plaintiff from all claims c. the Defendant pleads the said J. S. had not any such Lease per Cur. he is estopt to say so by the recital A Condition to perform Covenants The Defendant pleads the Indenture of W. S. and A. his Wife whereas in truth his Wife never sealed it the Plaintiff replies The Indenture shewn by the Defendant non fuit fait inter W. S. and Ann his Wife of the one part and the Plaintiff on the other and Issue the Jury found the Husband only sealed Per Cur.
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
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
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.
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
221 225. Blith and Hill Declaration IN the Declaration is omitted ad eandem solation faciend obligo me haeredes meos it was amended Cro. Jac. 147. Forger and Sales Alit if one declare in debet detinet where it ought to be in the detinet only ibid. Winch p. 20. If I declare on Obligation against a collateral Heir the Declaration must be special as Debt against the Brother and Heir the Defendant pleads riens per descent from his said Brother but he had Assets by descent from the Son of his Brother but he must be charged by special Declaration and so Judgment pro Def. Cro. Car. 151. Hill 4 Car. 1. Jenkes Case Judgment and Execution DET port en Lichfield against the Heir he pleads riens c. the Plaintiff replies Assets but shews not in what place whether within the Jurisdiction Judgment was erroneous yet per Dodderidge If the Jury find the Assets to be deins Jurisdiction its sufficient though not so alledged Q. if Costs and Damages shall be given to the Plaintiff on such Judgment 2 Rolls Rep. p. 48. Brown and Carrington In all Courts he must shew the place of Assets Q. Cro. Jac. 502. id Case Co. Rep. 6.46 Dowdales Case Det vers l'heir pendant le Action another Action was brought against the same Heir upon another Obligation of the Ancestor Judgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Judgment first he for whom the first Judgment was given shall be first satisfied but if the Heir after the first Action brought had aliened and the Plaintiff in the second Action commenced his Suit after such Alienation had obtained Judgment before the first Plaintiff in that case the Plaintiff in the first 〈◊〉 on should be satisfied and he in the second Action not at all Mod. Rep. 253. Anonymus In Det vers l'heir by Bill after riens per dâ—sm pleaded tempore exhibitionis Bills the Defendant excepted at the Trial because the Bill was not shewed and the Plaintiff was non-suit Per Câ— the Bill is confest and need not be shewed 1 Kâ—b p. 793. Rogers and Rogers The Heir shall put in Bail on a Writ of Error per Stat. 16 Car. 2. c. 2 Keb. 320. Coâ—ber and Walton Det vers tres Co-heirs two confess Assets the other pleads to Issue and is non-suited it s a Non-suit against them all though the two have confest and so the Plaintiff lost his Debt there being â—n Alienation before a new Original Siderfin p. 378 Blacks Case He ought to confess the Assets that truly descend to him otherwise his own Land shall be charged with the Debt Plow 440. Pepyes Case Dyer â— Henninghams Case Dyer 344. Qu. if upon â—il dicit or non sum informatus Judgment shall be general but in Sc. fac sur Recognizance of the Ancestor against the Heir he pleads riens per descent which is false here Judgment shall be special for he is not charged as Heir but as Terre-Tenant at the end of Popham 1 Car. B. R. 153. Bowyer and Ricots After Imparlance one is estopt to say that he is not Heir being charged in Debt as Son and Heir so to say he is a Bastard 35 H. 6. 36 37. The Heir pleads riens per descent besides one Acre if the Plaintiff please he may have Execution of that one Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land only and not of his Person Where the Heir pleads he hath nothing by descent generally and it s found against him the Land and all other Land that he hath and his Body are â—iable to judgment by Ca. sa Fi. fat or Elegit â—1 Brownl Rep. 254. Qu. what difference between a false Plea and nil dicit 2 Keb. 343. Riens per descent after the death of the Ancestor Prist Such Issue shall be good in a Formedon for if he have Assets at any time he shall be charged and barred of his Formedon intirely in this Case it must be riens jour de brevâ— purchase nec unâ—pâ—is 10 H. 7.8 b. In Det vers 4 Co-heirs on several Issues on riens per descent Assets was found as to one only Judgment given against her that had Assets quod reâ—uperes debitum damâ— sua generally 〈◊〉 de hunis propriis 2 Keb. p. 588. Cary and Brickmâ—r versus Lock On nil dicit the Heirs own Lands and Goods shall be charged i. e. a general Judgment The Heir pleads Lands set out for Portions besides a Reversion of which he hath nothing replies a third part descended Judgment special 1 Keb. 156. Cudmoâ— and Lâ—wis Judgment against the Heir upon nil dicit shall be general and shall extend to his own Lands as well as to those which specially descend Poph. 154. Bowyers Case Mâ—or n. 657. Barâ—r and Borâ—e Capias lies too against the Heir in Case of a false Plea 2 Leon. p. 11. Sir John Lyons Case The Defendant confesseth he hath a seck Reversion beyond which he had no Assets the Plaintiff said he had ouster and were at Issue the Plaintiff comes and prays leave to wave this Issue and to have Judgment of the Reversion quod fuit concessum quando accideret 1 Rolls Rep. 57. Anonymus The Jury find the Defendant had divers Lands in Fee by descent and shews not what yet Judgment good for upon his false Plea Judgment shall be given generally against him if he have any Assets and so the quantity of the Assets is not material but otherwise in Case of Executors for there they must find the value of the Assets for he must there recover according to the Assets found 1 Rolls Rep. 234. Evet and Sucliff M. 13 Jac. 1. B.R. The Judgment and Execution shall be general unless the Heir acknowledgeth the Action and shews that he hath so much by descent Cro. M. 41 and 42 El. 692. Barker and Bourne If the Heir pleads riens per descent and it be a faux Plea it shall be a general Judgment against him and no Writ of Enquiry need to be to enquire what Lands he hath and need have no special Judgment for the Judgment ought to be that the Defendants Body and Goods shall be liable and half his Lands Stiles p. 287 288. Allery and Holden If the Jury find he hath Lands by descent and name them and Judgment accordingly its erroneous Stiles p. 327. Subgrave and Bosvil Cro. Jac. p. 236. Molineux Case Armourer versus Willis 2 Keb. 642 643 667 719. What Bail the Heir shall put in 3 Keb. 803. Lawrence and Blith Bonds of Arbitrament I Shall not here run into the Learning of Awards which is a curious and large Title in our Law and of which Mr. March hath composed a very Methodical Treatise but take notice of some few select Cases which respect the Nature of such
Obligations and Conditions and of avoiding them An Award was that the party shall pay unto a Stranger or his Assigns 200 l. before such a day the Stranger befor the day dieth and B. takes Letters of Administration Per Cur. the Obligor shall pay the Mony to the Administrator for he is the Assignee and so if the Assignes had been left out 1 Leon. p. 316. Mony awarded to be paid to a Stranger if the Stranger will not accept of the Mony the Obligation is saved 3 Leon. 62. Norwich and Norwich If the Award be ill of your own shewing then you have no cause of Action and so you cannot have Judgment though the Defendants Bar be not good Stiles 136. Wood and Clemenee If the Plaintiff shews the Award but assigns no Breach he shall not have Judgment though he hath a Verdict for the Obligation is not for any Debt for this is guided by the Condition which goes in performance of a collateral thing viz. of an Award And though the Defendant had not answered to the Breach if it had been assigned yet the Court ought to be satisfied that the Plaintiff had cause to recover otherwise they shall not give Judgment and though the Verdict is found for the Plaintiff yet this fault in the Replication is matter of Substance not aided Yelv. p. 152 153. Barret and Fletcher An Obligation to perform a void Award is void Latch 207. 10 Rep. 131. b. If a Man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Mony he may have his Action of Debt for the Mony and declare upon the Award and afterwards he may have another Action upon the Obligation for not performing the Award per. Câ—r 1 Brownl Rep. 55. If one countermand the Authority of his Arbitrator as he may he shall forfeit his Obligation 8 Rep. 82. a. Vynior's Case A Condition is annexed to the Award as paying so much Rent yet Debt upon Bond lies 〈◊〉 Non-payment Cro. El. 211. Parsons and Frowd A Condition to stand to the Award of J. S. The Defendant pleaded the said J. S. had arbitrated that the Defendant should pay to the Plaintiff 10 l. and he said he had paid it to the Plaintiff Wise who had received it The Plaintiff demurs and Judgment pro Quer. Payment to the Wise not being good 1 Leon. 320. Frowd and Bâ— Recognisance to stand to the Arbitrament of A. and B. who awarded that Robins should have the Land yielding and paying 10 l. per ann Rent is behind The Plaintiff brought Debt The Defendant pleads the special matter and concludes Judgment if the Plaintiff shall have Execution against him Per Cur. it is ill for here is not any Execution of the same Debt but an Original Action of Debt port and he ought to conclude Judgment si actio These words yielding and paying 〈…〉 not a Condition for it s not knâ— to the Land by the Owner himself but by a Stranger sâ— the Arbitratoâ— But it is a good clause to make the same an Article of the Arbitâ—ment which the Parties are bound to perform upon the penalty of the Recognisance and this Rent shall not cease by Eviction of the Land 3 Leon. p. 58. Treshal and Robins An Award was that the Defendants Brother J. for whom the Defendant was bound to perform the Award should pay the Plaintiff 30 l. viz. 20 l. at the Annunciation and 10 l. at Michaelmas after and shewed that the said J. had payd the 20 l. and as to the 10 l. he pleaded that J. died before the Feast of M. The Plaintiff demurs Per Cur. the Bond is forfeited because the Sum awarded by the Arbitrament is now become a Duty as if the Condition of the Bond had been for payment of it 2 Leon. f. 155. Kingwel and Chapman Debt on Bond to stand to an Awards and the Defendant pleads Nil debet On Demurrer it was excepted the Action is grounded on the Award and therefore the Award ought to have been brought into Court which is not done for ought appears here Per Glyn It is not necessary to produce it in Court though he must plead the Award in Writing for the Action is not brought upon the Award but upon the Submission for the Award is but the Inducement and the Court hath nothing to do with the Award but to see whether it be in writing or not For a Deed that I confess must be produced in Court that the Court may judge whether it bind the party or not and you your selves have here set forth the Award in Pleading In all Cases where things cannot be demanded but by Deed the Deed must be produced but here is no Deed in this Case for an Arbitrament under Seal is no Deed it is but a Writing under Hand and Seal Stiles p. 455. Dod and Herbert Condition to stand to the Arbitrament of J. S. If the Defendant pleaded Nullum fec arbitriâ— the Plaintiff by Replication ought to shew the Arbitration in certain and assign a Breach for the Plea of the Defendant is so general it doth not offer any Issue therefore the Plaintiff in his Replication ought to lay a Breach or else there appears no cause of Action to the Court and the offer of the Issue comes from the Plaintiff Award is if J. pay to D. 10 l. then D. shall assure to J. the Mannor of Sale D. pleads in Debt upon this Bond J. paid him not 10 l. it is a good Replication for J. to say he had paid him 10 l. without saying over that J. D. had not assured the Mannor for the Plaintiff had given a direct Answer to the special matter alledged in Bar Yelv. 24. Baily and Taylor But this was after a Verdict Vid. 1 Sanders p. 103. Hayman and Gerrard The Plaintiff ought to assign a Breach in his Replication because the Defendants Plea Nul tiel award is general but if in such Case the Defendant plead a Release of all Demands after the Arbitrament by which he offers a special point in Issue there it sufficeth if the Plaintiff answer to the Release or other special matter alledged by the Defendant without assigning a Breach 1 Brownl Rep. 89 90. Condition to perform an Agreement already set down by J. S. The Defendant pleads no Agreement was made ill Plea Aliter had it been to perform all Agreements 1 Rolls Rep. 430. King and Perseval Condition to perform an Award they awarded the 24th of March the Defendant to pay at Mich. following 20 l. The Defendant pleads the Plaintiffs Release of all Actions and Demands made to him the 10th of Apr. Per Cur. the Release is no Baâ— of the Plaintiffs Action Aliter if had been a Debâ— or Duty presently Cro. Jac. 300. Tynan and Bridges In Debt on Bond to perform an Award Defendant pleads no Award Plaintiff sets it forth which was that the Defendant should pay Mony and they give mutual Releases to the time
Obligatorium concessit nor any Writing mentioned in the former part of the Declaration Sed non allocatur The Writings are produced and the Defendant by his Plea shews it 's an Obligation with Condition and it appears to the Court that the Plaintiff hath a just Debt and good cause to recover Cro. Car. 209. Sir William Courtney's Case In Debt sur Bond the Defendant confess'd the Action and because it 's not said in the Declaration Hic in Curia prolat ' it was adjudg'd a fault in Matter and Error Cro. Jac. 32. Dawbenny and Bannister Vid. le noveâ— Statute If a Bond be made to one and he doth not say in the Bond it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him tho' not expressed in the Bond 1 Brownl 72. Anonymus If any of the Bond be received it must be acknowledged in the Declaration Debt on two Obligations one was 100 l. the other 110 l. and he brought an Action generally of 200 l. upon these Obligations and acknowledgeth satisfaction of 10 l. but sheweth not of what Obligation it was that he acknowledgeth the payment of 10 l. it s no Error 1 Rols Rep. p. 423. Hale and Malyâ— vid. 3 Bulstr p. 244. Plaintiff declares upon a Statute Obligatory Solvendum upon Request and on Oyer it appears to be payable at a day certain Incurable fault Crook Jac. 316. Fox and Inkes Debt upon a Bill of 14 l. Solvendum 〈◊〉 cum 6 l. upon Account between them the Plaintiff only declares for 14 l. and good for that which comes after the Solvendum is void Crook Eliz. 537. Woodward and Parry Declaration is upon three several Obligations and upon Oyer of the several Conditions it appears one of the sums in the Condition was payable after the Bill exhibited Issue was joyned on Conditions performed and Verdict for the Plaintiff and intire Damages and upon Release of Costs and Damages Judgment was given for the two first Bonds only For tho' the Bill be an entire sum yet by the Court it appeareth they be as several Demands and Suits Hobart p. 178. Andrews and Delahay 1 Brown 68. Mesme Case One Declaration is naught After appearance the Plaintiff pleads de novo Noy p. 63. Rossiter and Bussey In B. R. the first Declaration was in Debt on Obligation 5 Feb. and the second was on an Obligation dated 15 Feb. and the pleading and Judgment was thereupon and held good for it was held as a Declaration without an Original which being after Verdict was ayded Crook Jac. p. 89. cited in Sir Michael Dormers Case Debt on Bond dated 13 Feb. The Defendant imparles and after a second Declaration was made and therein he declares on an Obligation dated 15 Feb. Defendant pleads non est factum it was amended and made according to the first Declaration for the first is the principal and the Plea always refers thereto Crook Jac. p. 105. Burrel versus Sir William Bowes Debt by Baron and Feme on an Obligation made to the Feme dum sola fuit and the Declaration is ad damnum ipsorum its good Stiles 134 Anonymus In Debt due upon a Bond or Contract there needs not a special Demand to be laid but licet saepius requisitus is sufficient Aliter if it were due by Arbitrement cum requisitus fuisset for then there must be a special demand Cro. Jac. 640. Waters and Bridges 1 Brownl 30. In inferior Court of Record 50 l. in figures is Error Stiles p. 165. Joson and Beale A thing that doth not intitle the Plaintiff to Action need not be contained in the Count. If the Condition be Endorsed or Subscribed it need not be contained in the Count but if it be contained before the in Witness then it ought to be contained in the Count. If a Man be bound to pay 10 l. when the Obligee carries 200 Load of Hay to his House there the Condition is precedent and it ought to be contained in the Count What comes after the in Witness be it a Proviso or Memorandum it may be as a Condition or Defesance and need not be contained in the Count 2 Brownl Rep. 97. Hammond and Jethro Be it known that J. C. bind me to R. in 40. l. to discharge and save harmless the said R. against W. Solvenâ— tali die c. there the Count is good generally without saying the Defendant had not saved harmless 22 Ed. 4.42 One ought to declare specially according to the Bill the Bill was to pay as I pay my other Creditors The Plaintiff declared generally that he was indebted to him in 5 l. Solvend ' upon request It s ill Cro. Eliz. 256. Bright and Metcalf Declaration for Outlandish Mony DEclares upon a Bill Obligatory wherein the Defendant was obliged to pay him â—00 Gilders of legal Mony Polonish viz ad valorem 220 l. legalis monetae Angliae and that the Defendant had not paid unto him the said 220 l. monetae Angliae nor the said 600 Gilders monetae Poloniae per quod Aâ—tiâ— accrevit c. Defendant pleaded non est factum and found pro Querente and the value of the Mony was enquired by the Jury viz. that the value of the 600 Gilders Polish was at the time of the Bill and now 220 l. The Action is well brought in the deâ—inâ— because he is to recover the value and the demand is not of any sum certain Cro. Jac. 617. Rands and Peck Cro. Eliz. 536. Bayshaw and Plaine Latch p. 4 77.8â— Wards Case The Court cannot compel the Plaintiff to set forth the Condition in his Declaration but till he doth it on Oyer demanded the Defendant shall not be compelled to plead Stiles 125. Sir Charles â—ot and Plunket On Oyer demanded unless the Plaintiff will shew the Bond the Court will set aside the Judgment as irregular 2 Keb. 275. Beadly and Beach When the Plaintiff counts on Bond it ought to remain in Court unless the Defendant after Oyer demanded suffer it to be delivered out then on non est factum the Court will not order it to remain there on prayer of the Defendant although anciently it hath been so 1 Keb. 486. Williams and Hulleâ— In Debt on Bond to deliver up Goods in a Schedule annexed per Cur. on demand of Oyer of the Condition they shall have also Oyer of the Schedule being all as one Dâ—ed but Oyer of Indenture for performance of Covenants shall not have Oyer of the Covenants but yet must set them forth and if he have no counterpart he may move the Court and obtain it 2 Keb. 4. Waterman and Adams Variance between the Obligation and Declaration DEbt on Bond the Plaintiff declares of a 1000 l. to be paid to him and the Defendant demands Oyer and he was bound to J. R. to be paid to J. K. to the use of J. R. The Defendant Demurs the Solvend ' to the Stranger is void and the Court seem'd
pro Querentâ— On non est factum pleaded it had been well enough so if this had been a Condition to pay Qu. if there be no sufficient words of Obligation to the Plaintiff Siderfin p. 290. 2 Keb. 81. Queen Mother versus Challoner Variance between the Obligation and Count shall not be shewed after imparlance 1 Brownl 95. Percher and Vaughan Variance in the Sum. THe Declaration was the Defendant stood bound to him in Septingent ' quinquagent ' libris and produced his Writing Obligatory and upon Oyer the words were Septuagint ' and quinquagint ' libris The Defendant pleads the Variance and demurs thereupon Per Cur. that is no cause to abate the Writ The Defendant then pleaded non est factum and the Jury found that the aforesaid Writing Obligatory de summa Septuagent ' quinquagint ' librarum per quod praedict W.W. per breve suum exegit de praefat ' T.P. infrascript septingent ' quinquagint ' libras was sealed c. sed utrum super tota materia c. the Court awarded the Plaintiff should recover the 750 l. and Costs Hobart 116. Walter and Piggots Case The Obligation was octigint ' and the Declaration octogint ' and Variance pleaded See the form of Pleading and entring Judgment Hobart p. 19. Fitzhughes Case Upon Oyer it appears no sum is mentioned in the Condition and the Declaration is to pay so much Per Coke it s a material Variance and the Obligation is single and no day being set down its payable on request and so the Declaration is good 2 Bulstr. 156. Dorrington and VValler Debt in York on Obligation of 13 l. Plaint was in plicito debiti 14 l. which variance was assigned for Error 2 Keb. 590. Vavisor against Bellingham Variance in the Names and Additions Misnomer MOlineax enters his Original in the Common-Bench against Marâ—ham in Debt on a Bond per name of J. Markham Alderman de D. and declares against him by the name of Markham de D. Esq and Judgment was given pro Quer. sur Verdict it was adjudged Error Yelv. p. 120. Molineax and Markham The Plaintiff in the Obligation was named J. Thorney de Fenton in Com' Not ' Armig ' and in the Declaration he was named J. Thorney Armig ' To de Fenton in Com' Noi ' were left out The Defendant demands Judgment of the Bill for this Variance Per Cur. respondeas ouster for this is no Variance to abate the Bill when he is well named is his proper Name and Sirname the addition is not material otherwise if it were of the part of the Defendant Cro. Eliz. p. 312. Thorney and Disney Declaration is on a Bond by Edmund Shephard for so it was signed and shews a Bond of Edward Shepard Noverint c. me Edwardum Shephard c. Upon non est factum the Jury found it the Deed of Edmund Shepard and Judgment was Arrested for they are distinct names And though it be subscribed by the name of Edmund yet that is no part of the Bond he ought to have brought his Action according to the Bond Cro. Jac. 640. Maby and Shepard Cro. Jac. 558. Watkins and Oliver Count quod praedict ' Jacobus per nomen Joâ—annis W. per quoddam scriptum c. upon Oyer the Defendant by the name of John W. fecit scriptum The Condition was if James W. paid The Defendant Demurs Per Cur. the Action lay not for John cannot be James Crook Eliz. 897. Feild and Winlowe W.S. is bound by the name of J. S. Action brought against him by the name of J. W. alias J. On non est factum adjudged the Plaintiff shall not recover the Action should be against J. as he is named in the Obligation 11 Eliz. Dyer 279. The Defendant pleaded variance between the Obligation and the Declaration for the Obligation was Randal and the Declaration was ad respondend ' Randulpho alias Randal Q. if Randulphus be Latin for Randal 3 Leon. p. 232. Babington's Case In the Writ he was named Son and Heir apparent and in the Declaration Son and Heir generally for this variance the Judgment was reversed Crook Eliz. 333. Annesby and Stokes When a Man appears and pleads he hath lost the advantage of Misnomer 2 Rolls Rep. 50. Sir Francis Fortescue's Case If he is named Saxex in the Original and Saxey in the alias dict' its variance for he ought to declare against him by the name he was at the time of Sealing the Bond and as he is named in the Condition and the alias dict' is for no other purpose but to make the name agree with the name in the Bond. If Action be brought against J. S. who at that time was Esquire and afterwards he is made a Knight there he shall declare against J. S. Armig. alias dict J. S. Mil. But in the first case it was no Error it being an easie Mistake 1 Bulstr 216. Saxey and Whemson Variance in time of payment of Entry THe Bill was Be it known c. to be paid at two payments that is to say 5 l. to be paid the 19th day of November which is the present of this Month and the other 5 l. the 10th day of December and the Bill was dated 17th Nov. 1604. The Plaintiff declares the Defendant did acknowledge himself to owe the Plaintiff 10 l. to be paid to the Plaintiff at two payments viz. 5 l. to be paid the 19th of November then next following and the other 5 l. to be paid the 10th day of December then next following On non est factum the Jury found the Special Matter The Question was Whether the Bill maintain the Count for the first payment and adjudg'd it did Brownl 1 Rep. 74. Prest and Cee The Count is of a Bond dated 1 May and the Entry is of 2 May on a Release pleaded and Issue thereon it 's good enough Aliter on non est factum 1 Keb. 426. Billage and Blake Oyer monstre des faits IF no Oyer be demanded it 's intended a single Bill 1 Keb. 937. Coxall and Sharp In Debt on Obligation the Defendant avers the Obligation was for security of certain Rent c. without demanding Oyer of the Condition it 's but as a single Bill and he cannot aver a Condition and so upon Demurrer adjudged pro Querente 1 Rol. Rep. 425. Baylee and Harrington The Law in Henry the Seventh's time was That the Defendant need not shew forth the Indenture of Covenants on Oyer demanded 6 H. 7.12 13. 9 H. 7.17 13 H. 7.18 The Defendant craves Oyer of the Obligation ei legitur and then of the Condition ei legitur And this was for performance of Covenants in an Indenture and after Oyer of the Condition the Entry on the Roll was That the Defendant prays Oyer of the Indenture mentioned in the Condition which was not brought into Court ei legitur The Plaintiff demurs for that the Defendant hath prayed Oyer of an Indenture which was not brought
762. Cantor and Hurtwel Bond to collect all the Amerciaments he Pleads he collected all and good being in the Affirmative aliter if the Condition be of matter of Record as to be Non-suit in all the Kings Courts 2 H. 7.15 a. 4 H. 7.12 b. Certainty THe express certainty regularly ought to be pleaded according to the express words of the Condition and to shew the performance 15 Eliz. Dyer 318. vid. Kel p. 60. Covenant in a Lease that he hath full Power and Authority to Demise the Land Lessee brought an Action on this Covenant it sufficeth him to say the Lessor had not full Power and lawful Authority and this Assignment of breach is good for he persues the words of the Covenant Negative and the Lessee is a stranger to the Lessors Title and therefore the Defendant ought to shew what Estate he had in this Land tempore dimissionis by which it may appear to the Court he had full Power and lawful Authority to Demise 9 Rep. 60 61. Bradshaws Case A Man is bound in the Copulative that he and his Assigns persolverent omnia onera He ought to Plead that he and his Assigns have done this 28 H. 8 Dyer 27. b. Condition to pay 10 l. within six Months after the Marriage of the Plaintiff the Defendant Pleads the Plaintiff was not Married the Plaintiff replies he was Married Defendant demurs because it doth not appear but the Defendant hath paid the 10 l. Adjudged for the Defendant he ought to answer the Condition Aliter after Verdict Siderfin p. 340. in Hayman and Gerards Case Though it be a good Plea regularly to the Condition of a Bond to persue the words of the Condition and to shew the performance Yet Coke said there was another Rule that he ought to Plead in certainty the time and place and manner of the performance of the Condition so as a certain Issue may be taken As Condition to pay 30 l. to H. S. J. S. and A. S. tam cito as they should come to the Age of 21 years The Defendant Pleads he paid those sums tam cito as they came to Age The Plaintiff Demurs because it s not shewed when they came of Age and the certain time of the payment It s an ill Plea So if the Condition be for performance of Legacies in such a Will he Pleads performance generally not shewing the Will nor what the Legacies are Cro. Jac. 359 360. Hally and Carpenter If I am bound to enfeoff you of all the Acres in such a Fine and I shew the Record of the Fine and averr that I have enfeofft you this is good But if it be of Acres in Middlesex he ought to shew the Acres in certain 28 H. 8. Dyer 28. Conditions to deliver all Writings concerning such Lands it s a good Plea to say generally that he has delivered all the Writings Doct. placitandi 62.4 H. 7.12 vid. pluis for Conditions performed pleaded generally and not shewing the certainty 12 H. 8.6 b. Sir John Cutts Case 12 H. 7.14 b. In pleading Negatively he ought to Traverse all the Condition as if a Man be bound to pay for so much Bread as the Defendant shall deliver at the common Hall whensoever he shall be requsted by C. he shall say he was not requested by C. to pay to him any Mony for any Bread delivered at the Common Hall c. 4 H. 7.12 Where the Party is bound with Condition to warrant Land the Defendant shall say expressly that he had warranted the Land for pacificè gavisus is no Plea 30 H. 8. Dyer 42. Condition was if neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said Lands by any indirect means but by due course of Law then c. The Defendant Pleads that neither J. S. nor J. B. nor J. G. did disturb the Plaintiff by any indirect means but by due course of Law Q. if it be not a Negative Pregnant i. e. a Negative which implies an Affirmative Not disturbed by any indirect means such a Plea had been good or not disturbed contra formam conditionis Adjurn ' If I am bound I shall not go out of Westminster Hall till night but tarry in the Hall till night or that I will not return to Serjants Iun the direct way but by St. Giles in an Action brought on that Bond I may plead in totidem verbis 2 Leon. p. 197. Dighton and Clark Where a certain Duty accrews by the Deed at the beginning as by a Covenant Bill or Obligation to pay Mony this ought to be avoided by a matter of as high a nature viz. by Deed vid. suprà tit ' Accord pleaded and 9 Rep. 78. Peytoes Case Sometimes matter un fair shall avoid an Obligation as well as a matter in Writing as to say the Feme was Covert de Baron c. 4 H. 7.15 The Defendant Pleads after the Mony became due he and the Plaintiff did by parol submit to an Award and sets forth the Award and performance per tender Per Cur. it s an ill Plea Submission by parol cannot discharge a Debt by Specialty Stiles 350. Ludding and White Coxal and Sharp 1 Keb. 937. Inter alia a Bond may be put in Arbitrament yet in such case the Arbitrament cannot be pleaded in Bar of the Obligation Q. if the party hath his remedy on the promise to perform the Arbitrament A Bond inter alia may be Arbitrated and mixt with other things And where the Award is good the party must resort to Action thereon 2 Keb. p. 734. Morris and Creech A Special Plea in Bar is always to be answered with a Special Replication in the point Whereas such a Mortgage was made of such Land to J. S. c. if therefore the said Land at the day be redeemed and discharged from all Tithes c. the Defendant Pleads the Close was not Mortgaged to J. S. The Plaintiff replies it was Mortgaged he need not alledge it was not redeemed J. S. is bound to Marry the Daughter of B. at Easter next J. S. Pleads in Bar she died before Easter it s a good Replication to say she was living at Easter day without saying he had not Married her Yelv. p. 24. Bayly and Taylor Vid. good Learning as to this Rule supra Titulo Assignment of a Breach In Monox and Warleys Case It was taken as a Rule that the Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment altho' the Issue be found for him as in Debt on Bond against A. and B. A. Pleads Non est factum B. Pleads the Release of the Plaintiff and it s found the Deed of A. and the Plaintiff hath Released to B. The Plaintiff shall never have Judgment for upon the Verdict it appears he hath no Cause of Action 2 Leon. p. 100. Pleas in Abatement IN Debt on Bond the Defendant demands
Judgment of the Bill for that the Plaintiff in the Obligation was named J. Thorny de F. in Com. N. Armig ' and in the Declaration was named J. Thorny Armig. and no more Respond ouster awarded Cro. Eliz. 312. Thornough and Disney After Imparlance one cannot plead in Abatement of the Writ Stiles 187. Weston and Plowden Per Stat. 6 R. 2. c. 2. it 's provided that the Original shall not be laid in one County and the Declaration upon a Bond made in another County if so the Writ shall abete But it s no good Plea to say that the Bond was made in another County than where it s alledg'd in the Declaration Allen p. 17. Shalmer and Slingsby If the Defendant pleads a Plea in Abatement as in Debt upon Bond that another was joyntly bound with him who is in full life not named and concludes in Bar Judgment shall be final against him Siderfin p. 189. Burden and Ferrars Debt on Obligation against the Defendant Knight and Baronet The Defendant pleads he never was a Knight in Abatement No Amendment granted but in Nil Cap. per Billam awarded because tho' the Defendant after Bail put in by himself generally he cannot plead in Abatement yet when the Bai is Special or put in by another he may plead in by Abatement Judgment pro Def. 2 Keb. 824. Sir William Hicks's Case Pleads that the Plaintiff puis darrein continuance was made a Baronet Cro. Car. p. 104. Simon Bennet A Plea may be a good Plea in Abatement though it contain Matter that goes in Bar Med. Rep. 214. In Debt sur Oblig ' against J. S. de S. it 's a good Plea to say that there are two Vills S. within the County and none without Addition 14 H. 6.8 a. In Debt sur Bond. The Defendant pleads that after the Writ purchased the Plaintiff had received parcel and shews the Acquittance the Writ shall abate in the whole and notwithstanding it 's a good Plea in bar as to this part Doctrina placitandi p. 5. Vide pluis in titulo Payment infra Payment of parcel pendant le Suite Two bring Debt on Obligation the Defendant pleads the Obligation was made to them and to one B. and that they three had an Action of Debt depending against him and demands Judgment si actio Demur And because the Obligation was made to two upon which they counted it cannot be intended an Obligation made to three and if it be a Plea it 's in Abatement of the Writ and not in Bar. Judgment pro Querente Cro. Eliz. Isham's Case Debt against J. S. de D. Yeoman It 's no Plea to say there are two J. S. of D. Yeom Sen. and Jun. and none without addition For the Action accords with the Obligation which is J. S. de D. Yeoman without distinction 9 H. 7.21 Pleas after Imparlance IN Debt on an Obligation the Defendant imparles till next Term after he may plead that the Plaintiff is Outlawed For the King shall have the Debt on Bond. Aliter in Trespass or Debt or simple Contract 16 Ed. 4.4 a. per Bryan Debt against J. S. de D. The Defendant imparles he may after say by Attorny Upper D. and Nether D. and none without addition 18 Ed. 4.9 21 Ed. 4.1 b. contr Variance between the Obligation and the Writ may be pleaded after Imparlance in another Term for the Bond always remains in Court but after Imparlance Variance between the Testament and Letters of Administration shall not be pleaded for the Testament shall be but once shewed in Court 36 H. 6. 32 33. 38 H. 6.2 19 H. 6.7 The Defendant Imparles till another Term and then he pleads Tender of the Mony at the day and place and that no person was there to receive it and that he is now ready and saith not Touts temps prist yet it 's a good Plea For he had excused himself of the Forfeiture by this Plea and no Estoppel shall be by the Imparlance to plead that he is now ready Doct. placitand 388 389. In Debt on Bond the Defendant imparles Specially scil salvis omnibus omnimodis advantagiis and after he pleads the priviledge of the Exchequer that he was Surveyor there Per Cur. he cannot plead so Siderfin p. 318. Trussel and Maddin 2 Keb. 103. A Plea in Abatement ought to be pleaded before Imparlance As the Defendant to Debt on Bond appears and imparles and after Imparlance pleads that he is Earl of Nova Albion in Ireland and ought to be impleaded by that Name Stiles p. 187. Weston and Plowden After Imparlance the Defendant pleaded in Abatement that one Vincent not named sealed c. It 's no Plea after Imparlance and a Respond ' uâ—ster awarded 2 Keb. 795. Putt and Nosworthy Debt for 300 l. The Defendant after a general Imparlance demands Oyer and pleads Specially it was but for 30 l. Non allocatur after general Imparlance then the Defendant pleaded Non est factum which was the proper Plea in the Case 1 Brownl p. 70. It was Ruled that after Imparlance in Debt upon Bond the Defendant shall be received to plead that he was always ready to pay tho' 13 Eliz. 306. Dyer seems contrary and was so urged Replicatio Querentis That the Defendant ought not to be admitted to plead a Variance between the Declaration and the Bond in abatement after Imparlance general Modus Intrandi p. 200. Obligations Pleadings Acceptance Coneord COndition to deliver twenty Quarters of Wheat The Defendant pleads that pendente billa the Plaintiff had accepted fifteen Quarter and demands Judgment of the Bill No Plea for it 's Collateral and not parcel of the Sum contained in the Obligation and if it be a Plea it is in bar and not in abatement Cro. M. 33 54 El. Stone versus Radish Issue is taken that he had not accepted now though it s no Plea and so no Issue yet it s helped by the Statute of Jeofails and the Plaintiff had Judgment Cro. El. p. 260. M. 33 34 El. Andrews and Kinck Debt pro. 7 l. the Defendant pleads solvit ad diem The Jury find 50 s. parcel of it paid and that the Defendant then delivered to the Plaintiff certain Hats to the value of the residue which he accepted It was Adjudged against the Defendant for this is no payment he might have pleaded it specially Cro. M. 35 36 El. Tiblethorp and Hunt Debt fur single Bill The Defendant pleads he enfeoffed the Plaintiff of Lands in satisfaction of that Debt The Plaintiff demurs Per Cur. it 's a naughty Plea to a single Bill otherwise had it been upon a Bond with a Condition to pay Mony 1 Brownl 70. Glyver and Lease Debt sur Bond The Defendant pleads another Bond given to the Plaintiff in satisfaction of that Bond and acceptance at the day of payment Ill Plea for one chose in Action cannot be given in satisfaction of another unless it were payable at a day before the
Release to the Obligor dated the first of March and delivered the first of June by which he releaseth all Actions ab origine mundi until the date of the Release Per touts Justices the Obligation is not released Cro. Eliz. p. 14. Sir William Druries Case T. J. Doth acknowledge himself fully satisfied and discharged of all Bonds Debts or Dues whatsoever by T. O. this acknowledgment by Deed is in Judgment of Law a Release of all Bonds tho' the word Discharge is not properly said of the part of Obligee but of the Obligor 9 Rep. 52. b. Hickmots Case Debt on a Bond not forfeited at the day of payment being not then come the Defendant Pleads a Release and found against him in Arrest of Judgment it was adjudged for the Plaintiff for the Defendant did not take advantage of it as he might but waved it and pleaded a collateral matter which was found against him Cro. Eliz. 68. Frishi Case Debt on Bond dated the 24 of June 9 Cor. The Defendant pleads that the Plaintiff the 22 of Feb. 10 Car. Released to him all Actions and Demands which he had c. to the day of the date thereof The Plaintiff demands Oyer of the Release which was a Release of all Actions unto the 14 of January before the date of the Release for this misprision the Plea was adjudged ill Cro. Car. 426. Dyer and White A Man may not release a personal thing as an Obligation upon a Condition subsequent but the Condition will be void because a personal thing once suspended is extinguished perpetually but a Man may release it upon a Condition precedent for there the Action is not suspended until the Condition performed 1 Rols Abr. p. 412. Barkley and Parkes adjudged on Demurrer Where the Release was of an Obligation with a Proviso that he who releaseth this might enjoy 120 l. due by J. S. to the Obligor at a day to come then after which the Court adjudged a Condition precedent because the 120 l. was not due at the time of the Release but at a day to come 1 Rols Ab. 415. Mesme Case In Debt on a Bond of 200 l. for payment of 104 l. at a day on Oyer and Entry of the Bond and Condition The Defendant Pleads the Plaintiff did Release praedictum scriptum Obligatorium by the name of an Obligation in 200 l. for the payment of an 100 l. It s not a good Plea tho' it was averred there was no other Bond made by the Defendant to the Plaintiff for tho' a greater sum includes a Lesser as to tender yet the Debt and Duty is entire and therefore cannot be discharged by a Release of a lesser Sum Allen p. 71. Chace and Gold T. G. Covenants with another that B. A. a Stranger shall pay to A. a Stranger and the Covenantee 10 l. per Annum A. the Stranger takes Buck to Husband who releaseth the payment he cannot Release it for this was not any Debt or Duty in Buck or his Wife they had nothing in it nor remedy but for non-payment the Covenantee shall have an Action of Covenant Rols Rep. 196. Quick and Harris Bond taken in the name of the Plaintiff as Trustee for the younger Brothers from the elder Brother Conditioned to pay younger Brothers Portions The Defendant pleads a Release of all Actions Suits and all Debts on the Plaintiffs account Per Cur. it must be intended of all Debts whereof he hath the sole disposition and so he had not here Judgment pro Querente 2 Keb. 530. Stokes and Stokes Debt on Obligation Conditioned to perform Covenants in a Lease for years The Defendant pleads Conditions performed The Plaintiff assigns a Breach of non-payment of Rent The Defendant to this rejoyns a Release of all demands and per Cur. the Rent is not released by this being a Rent Executory and not a sum in Gross and Judgment pro Querente Siderfin Hen and Hanson Two are bound joyntly and severally a Release to the one Obligor is a Discharge to the other but a Release to an Executor of a joynt Obligor is void Cro. Car. 551. Dennis and Paine 1 Keb. 936. Scot and Littleton The Defendant pleaded that he was bound in the Bond simul cum R. G. to whom the Plaintiff had released all Actions and demands the said first of May which was the date of the Obligation the Plaintiff by Replication shewed that after the Obligation Sealed by R. G. he released to him and that afterwards the same day the Plaintiff Sealed the Bond This Release per Cur. doth not discharge the Defendant Cro. Eliz. p. 161. Mannings and Townsend Two are sued joyntly and severally the Obligee brings Action against the one and makes a Retraxit of his Suit Q. if this Retraxit is in nature of a Release and so if pleaded it be a Bar to Sue the other But in Cro. Jac. 211. Beechers Case it s an absolute Bar had it not not been for other faults in the entry Cro. Car. 551. Dennis and Paine March 95. Mesme Case Two are bound Obligee releaseth to one provided that the other shall not take benefit of this Release it s a void proviso Lit. Rep. 191. Debt on Bond the Defendant pleads a Release of all Actions and Suits in Bar. The Plaintiff demands Oyer and an exception of one Bond was therein contained The Defendant replies that was the Bond in Suit and that the sum excepted and the person are all one the Defendant demurs for Actions and Suits being released serve to no purpose the Obligation being excepted Per Cur. the Obligation it self being excepted all Actions and Suits concerning it are also excepted Cro. Eliz. 726. Brook and Wheeler The Defendant pleads a Release and sets it forth c. to be fully satisfied all Bonds Debts and dues c. and that he the Obligee is to deliver all such Bonds as he hath yet undelivered to T. O. the Obligor except one Bond of 40 l. yet unforfeited which is for the payment of 22 l. and wherein the said T. O. and R. O. his Brother stand bound to him and saith that he ought not to be barred for the Obligation of 40 l. so excepted and the said Obligation hic in Curia prolat ' are one and the same Resolved that the said exception shall extend to all the Premisses and not only to the clause of delivery But by the Plaintiffs confession in his Replicacation it appearing the Bond excepted was joynt and he bringing it against the Defendant only hath abated his own Writ 9 Rep. 52. Hickmots Case Release of an Obligation bearing date the same day and the Release is of all c. usque ad diem datus this doth not discharge the Obligation 2 Rol. Rep. p. 255. Green and Wiloox The Plaintiff and Defendant submitted themselves to Arbitrament and it was Awarded that there should be a Release made of all Reliefs Duties and Amerciaments and this Release pleaded in Bar to Debt
Debt on Obligation in which Outlawry goes in Bar he failing of the Record the Plaintiff had Judgment Cro. Eliz. 203. Smith and Bernard The Defendant pleads Outlawry in the Plaintiff and shews it in certain the Plaintiff pleads nul tiel Record in the mean time the Plaintiff reverseth the Outlawry The Defendant shall not be condemned but a Respondeas ouster Failer of the Record not peremptory the Defendants Plea being true at that time Yelv. p. 36. Green and Gascoigne 1 Browel Rep. p. 83. The Defendant pleads Outlawry of the Plaintiff and shewed the Outlawry in certain by the name of J. S. of D. in the County of c. The Plaintiff shewed that at the time of the Suit begun against him the said J. S. upon which the Outlawry was pronounced was dwelling at S. absq ' hoc that he was dwelling at D. Per Anderson it s a good Replication to avoid the Outlawry without a Writ of Error for he cannot be intended the same Person 1 Leon. p. 87. Anonimus In Debt on Bond The Defendant Imparles till next Term after he may plead that the Plaintiff is Outlawed for the King shall have the Debt on Bond aliter in Trespass or Debt on simple Contract 16 Ed. 4 4. a. per Brian The Defendant pleads Attainder of himself after a Debt due to the Plaintiff it s no Plea More n. 982. Hall and Trussel Bro. Eliz. 516 Banister and Trussel 2 Anderson 38 45. Mesme Case The Defendant pleads at the time of the Obligation made he was non sanae memoriae its non Plea Cro. Eliz. p. 398. Stroud and Marshal The Defendant pleaded that the Plaintiff is a recusant Convict in Bar Litt. Rep. 235. Rooksby versus Bridge Debt upon Obligation in Norwich The Defendant confest it to be his Deed but according to the Custom there prayed quod inquiratur de â—debito and the Inquest was awarded and returned and found to a certain sum for which sum the Plaintiff had Judgment to Recover this was assigned for Error But because it was done according to the Custom it was not Reversible Cro. Eliz. 894. Grice's Case In Debt on Obligation against the Lord Monteagle The Defendant pleads his Peerage and prays to be Discharged Per Cur. Plead in chief this is but a Dilatory Plea Stiles p. 257. Lord Monteagles Case Arbitrament pleaded in Bar. Vid. Supra titulo Rules of Pleading Foreign Plea THe Condition was that in case the Ship were Cast-away in the Voyage and did not return it should be void The Action was laid in London and the Defendant pleaded she was Cast-away at Falmouth It s ill had the Plea been local it ought to be sworn The Action being Transitory the Defendant shall not by any thing Transitory alter the Venue but ought to alledge the Ship was Cast-away at St. Maria de Arcubus in Warda de Cheap in the same County the Action is brought 1 Keb. 750. Collins's Case The Declaration is that the Obligation was at Barnstable and the Plea is that it was at Chichly and payment alledged there which is a Foreign Plea The Plea was not sworn nor demurred to but received and Day given to swear it and for not swearing it accordingly Judgment is given by default whereas it ought to have been by Nihil dicit for want of a Plea And per Rolls If one plead an Insufficient Plea although it be a Foreign Plea it s not necessary it should be sworn Stiles p. 200. Wyatt and Harbye In a Corporation Court if the Defendant plead a Foreign Plea which is Collateral as in Debt on Bond he pleads a Release made in a place out of the Jurisdiction it need not be received without Oath But if in Covenant or Debt for Mony to be paid in another place he pleads payment accordingly or the Covenants performed in a place limited which is out of the Jurisdiction it ought to be received without Oath Lit. p. 236 Corporation Court Condition for performance of Covenants Breach assigned for Non-payment of Rent The Defendant pleads performance till such a day and that the Plaintiff entred in Surry where the Lands are leased But the Action being in B. R. the Court made him swear his plea yet because the Council offered to try it by Nil debet which is no Plea but by Consent which the Plaintiff refused the Court allowed the Plea 2 Keb. p. 386. Jones and Comport Debt on Bond in Bristol Recovery pleaded in the Kings Bench the Plea must be sworn and though it be sworn if they have cause to presume it not true they may refuse it Siderfin in Knights and Pitt's Case fo 330. Foreign Attachment pleaded THe Defendant pleads Foreign Attachment in London to Debt on Bond The Plaintiff demurs 1. Because the Defendant had Attached Mony in his own hands by way of Retainer 2. The Custom is in London that the Recoveror ought to find Sureties that if the Defendant be discharged within a year and a day then to pay the Mony and it did not appear by the Record that he found Sureties This was held an incurable Fault 1 Brownl Rep. p. 60. Hope and Holman L. brought Debt against H. on Obligation H. pleads how one J. J. affirmed a plaint of Debt in London against the said L. and by the Custom there Attached that Debt now demanded in the Hands of the said H. and pleaded the Recovery and Judgment there The Plaintiff replies that before Attachment J. J. brought Debt in the King's Bench against the said L. for the same Debt whereupon he made an Attachment whilst the Suit was depending Et hoc c. H. demurs Per Cur. notwithstanding this that J. J. had commenc'd a Suit in B. R. for his Debt and the Suit there depending yet the Debt in the Hands of H. may be Attached For tho one cannot Attach a Debt in London for that a Suit is here depending in the King-Bench as Cro. Eliz. 691. Humfrey and Barnes yet one who hath conceived an Action here may affirm a plaint in London for the same Debt and may make Attachment of the parties Debt according to the Custom For there the Debt in question is not touched by the Attachment and the Plaintiff might now have pleaded this Attachment in Bar for so much of his Debt in the Action brought in the King's Bench Cro. Eliz. 593 712. Leuknor and Huntly The Defendant pleads that the Plaintiff was Indebted to him concessit solvere and pleads a Foreign Attachment in London The Plaintiff protestando quod non habetur tale Record ' pro placito dicit that he pro diversis denariorum summis per ipsum prafat R. prius debit ' non concessit solvere the said Sum modo forma prout Adjudg'd a good Plea in Bar for the Debt is well Travelable Cro. Eliz. 830. Coke and Brainforth The Defendant pleads Tender and so to Issue and after the Defendant pleads that after the Darrein Continuance Foreign Attachment Per Cur
Plea notwithstanding it was not shewed by what Process he had Execution because the Execution is on Record and shall be tried by the Record but if he paid the Monies in Pais to the Plaintiff and not in Court it is not an Execution of the Judgment Mo. N. 91. The Defendant pleads That the Plaintiff in the King's Court at Penwarth brought Debt upon this Obligation against T. who was bound with him in the said Bond joyntly and severally and recovered and had him in Execution and that the Gaoler voluntarily suffered him to go at large It was Demurred 1. Because he doth not shew the Court had power to hold Plea 2. The Plea is not good in substance for this Escape is no discharge of the Debt and therefore the Action lies against the other 5 Rep. 86. Blumfield's Case Cro. Jac. 531. Pendavis's Case Two bound joyntly and severally the Obligee brought Action against one and retraxit his Suit Q. If this be a Bar to sue the other Obligor But the Retraxit being pleaded in the Court of Record in Poele and it not being alledged that this Court had power to hold Plea per Patent or Prescription It is an ill Plea Jones p. 451. Dennâ— and Paine If a man be bound by an Obligation and afterwards promiseth to pay the Mony Assumpsit lies upon this Promise and if he recover all in Damages this shall be a Bar in Debt sur le Bond Co. Lit. p. 240. Ashbroke and Snape Venue Bond where Triable When the Obligation is made beyond Sea AN Obligation made beyond Sea may be sued here in England in what place the Plaintiff will as if it bears date at Bourdeaux in France it may be alledged to be made in quodam loco vocat ' Bourdeaux in France in Islington in the County of Middlesex and there it shall be tried for whether there be such a place as Islington or not is not Traversable Co. Lit. p. 261 b. One sues in the Admirals Court upon a Bond made in partibus Maritimis Virginiae and so he may if he will suppose the Contract in Virginia and if he will suppose the Contract in England he may sue here But if part of the Contract be here and part beyond Sea in Virginia or upon the Sea the Common Law shall have Jurisdiction 2 Rol. Rep. 492. Capp's Case Where part is to be done within the Realm and part out of the Realm the Plea ought to be Triable within the Realm Condition was for 40 l. to be paid within 14 days next after the Return of one Russel into England from the City of Venice The Defendant pleads in Bar that the said R. was not at Venice The Plaintiff demurs and it was Adjudged a naughty Plea 1 Brownl p. 49. Hales and Bell. Where the Condition contains Matter not Triable the Condition is void Mo. N. 201. The Issue was the Obligor was never at Rome but if the Matter is parcel Triable its good enough Molineux A Declaration upon a Bill dated in patoch ' Sanctae Mariae de Arcubus in Lond ' and upon Oyer it bore date at Hamborough It s triable here Latch p. 4 77 84. Ward and Kidson Cro. Jac. fo 76. Higham and Flower An Obligation sued in the Admiralty supposed to be made and delivered in Chancery Per Cur ' such a Bond may be sued here but being begun there we cannot prohibit them For the Plaintiffs Witnesses may be beyond Sea 3 Leon. p. 232. Delabreche's Case Debt on Obligation dated in Surry brought in London The Counsel pleaded Stat. 6 R. 2. cap. 2. that all Obligations ought to be sued in their proper Counties as dated and prayed Judgment of the Writ Per Cur ' its a frivolous Plea the Law being clear that unless the Obligation appear in the Count or on the Pleading to be out of the County although it bear date out it s not material where it s brought 1 Keb. 593. Pretty and Roberts Debt on a Bond of 60 l. for the payment of 30 l. 10 s. at Coventry Issue was taken that the Mony was paid at Coventry yet by consent of Parties and Paper on the Rule of Court Issue was found pro Querente at London and Judgment but it was reversed for this Error Consent of parties cannot change the Law Hobart p. 5. Crow and Edwards Recognizance taken before a Judge at Serjeants Inn in Fleetstreet London out of Term the Action was laid in London and not in Middlesex and good and the Scire facias shall be directed to the Sheriff of London but if it were taken in Court or generally it shall be in Middlesex Hob. p. 195 196. Hall and Winckfield Place of Payment in the Condition DEbt in Havering in Essex The Condition was for payment of 20 l. to the Plaintiff at his House at S. in Kent The Defendant pleads payment at the day c. Secundum formam effectum indorsamenti pradict ' and Error was assigned for that the Issue was tryed at Havering and not at S. in Kent Non allocatur For when a thing Issuable is alledged and no place this shall be tryed where the Action is brought and Secundum formam c. refers only to the Time and not to the Place For the Place is not material payment being made to the Obligee and it appears not but S. in Kent may be in the Jurisdiction of Havering Cro. Eliz. p. 105. Newe's Case Condition was if he pay 50 l. at his House at Lockington in the Parish of Kilmerston that then c. The Defendant pleads payment c. and the Venire issues of the Venue of Lockington and good for it shall be intended a Village in the Parish of Kilmerston for divers Villages may be in one Parish But if it had been at his House in Lockington in Kilmerston then it shall not be intended a Village but a place known Cro. Eliz. p. 117. Pike and Cottington 3 Leon. 193. Cro. Eliz. 804. Kerchever and Wood. Payment pleaded apud domum mansionaliâ— Rectoriae de M. Venue was de M. and good and M. shall be intended a Vill. Condition for the payment of 100 l. at his House in Cheapside the 21 of June next ensuing the date hereof The Defendant pleads that on the 21th of January then next following the date of the Condition of the Obligation aforesaid he paid the 100 l. at the Plaintiff's House in Cheapside Secundum formam c. It s good enough though the Condition hath no date for the Condition and Obligation are as but one Deed But because it s not alledged in what Parish or House the Ward is its Ill because of a Venue and Trial a Parish and Ward in London are as a Vill and Hamlet in other Countries Cro. Eliz. pag. 372. Forth and Harrison Condition was that the Defendant should pay so much Mony in an House of the Plaintiffs at Lincoln The Defendant pleads payment at Lincoln aforesaid and Issue c. The Venire was
De vicineto Civitatis Lincoln ' the Trial is good and it s a Rule where it doth not appear upon the Record that there is a more proper place of Trial than where the Trial was that there the Trial is good but here is not a more proper place and it could not be tryed in the Body of the County because the payment was to be in the City March Rep. 124 Thorndike and Turpington Debt upon an Obligation in London against J. S. of Wakefield in Com' praedicto Conditioned for the payment of 100 l. at Wakefield The Defendant pleads payment at Wakefield aforesaid in Com' Ebor ' The Plaintiff saith Non solvit and so at Issue The Trial was De vicineto de Wakefield in Com' Eborum It was Error because he is named of Wakefield in Com' prad ' which shall be intended London and the payment at Wakefield aforesaid shall be so intended and the words added in Com' Ebor ' are idle Cro. Eliz. 867 Sackvill and Roades Venue THe Margent of the Count is Nott ' and the Count it self contains that the Obligation was made at the Town of Nott ' which is a County it self on Non est factum Venue was of the Town of Nott ' and tryed by a Jury of the County Per Cur ' in arrest of Judgment though the Town of N. be a County of it self yet it may be some part of the Town may be within the County and for that possibility they would not arrest Judgment 2 Brownl p. 165. Browning and Shelly The Plaintiff declared on a Bond made in London The Defendant pleads an Usurious Contract in Staffordshire and the Bond made for the same Contract The Plaintiff replied the Bond was made bond side non pro usura The Issue was tryed in the County of Staff And per Cur ' it was well tryed 1 Leon. pag. 148. Case 206. Kinnersley and Smart The Plaintiff Leased to the Defendant certain Lands in Cambridgshire rendring Rent and the Defendant became bound in a Bond for the payment of the Rent Debt on the Bond is brought in the County of Northampton to which the Defendant pleads payment of the Rent without shewing the place of payment It was tryed per Nisi prius at Northampton and well 2 Leon. 146. Coney and Beveridge's Case Debt brought in London which on Oyer was to perform Covenants which were to enjoy a Walk in a Forest On pleading the Venue was of the Walk though the Venue be ill yet it s aided after Verdict per Stat. 16 â— 17 Car. 2. cap. 8 2 Keb. 212 216. Sterk and Bates Condition was that if he appeared such a day it may be tryed per Pais Cro. Eliz. 131. Hoc and Marshall Debt on a Bond In the Imparlance-Roll the Bond was alledged to be made at Newcastle and in the Issue-Roll it was alledged to be made at York and tryed Error was brought The Court would not grant that the Imparlance-Roll might be amended 1 Brownl Rep. 66. Fetherston and Tapsale A Bill Obligatory to be paid within ten days after J. L. went by five days undivided from London to York and returned from York to London The Defendant pleads that J. L. did not go five days immediately from London to York and return from York to London Issue and Venue was awarded from the Parish of Bow in Warda de Cheape where the Bill was alledged to be made and found pro Quer. Judgment was arrested because it is not alledged to what Parish in London he Returned but to London generally that so a Venue might have been 2. As this case is the Venue must be from London so de corpore Comitatus and not of the Parish where the Bill was made Cro. Jac. 137 150. Normanvile and Pope Debt on Bond Conditioned to pay 20 l. and saith not where The Defendant pleads Solvit ad diem and Verdict and Judgment The Court denied to affirm the Judgment because here is no Venue and so no Trial. This was in Durham on Error brought 2 Keb. 620. Norcliffe and Anderson Condition to pay a Moiety of Charges c. The Defendant pleads Payment and saith not where The Plaintiff demurs because no Venue can be Per Hales no place is here necessary the Pleading being in the Affirmative 2 Keb. 762. Cantor and Hurtnell Condition to be paid at his Mansion house c. this may be paid at any place 3 Bulstr 244. In Debt on Bond Trial in Issue shall not be stayed on infra aetatem but this must be pleaded and the party cannot be aided on Non est factum but a Feme Covert may 3 Keb. p. 228. Cole and Delawne Debt on Bond in Norwich and Cognovit Actionem by custom a Writ of Enquiry was awarded de vero debito and good 3 Keb. 212. Brightman and Parker 251. Rogerson and Jacobson A Man recovers Debt on Bond If A man will bring Action of Debt for the Sum recovered he must lay it in the County of Middlesex and where the Judgment was given which hath made Novationem contractus Hob. p. 196. in Hall and Winkfield's Case Joyning Issue on payment COndition to pay tantas denarionum summas as he should receive by such a day The Defendant pleads payment generally The Plaintiff replies he did not pay 50 l. such a day hoc paretuâ— c. and good for the Defendant must rejoyn and conclude Et hoc petit c. 2 Keb. 230. Tr. 19 Car 2. Hansal and Nurse Condition to pay a lesser sum the 24 of June in such a year The Defendant pleads he paid this praedicto 24 die Junii quod ei solvisse debuit secundum formam effectum Conditionis The Plaintiff replies quod non solvit praedictam summam c. pradicto 14 die Augusti quod ei solvisse debuisset hoc petit c. The Jury find the Defendant non solvit praedicto 14 die Junii And the Plaintiff had Judgment Error assigned because no Issue joyned The Plaintiff ought to have replied quod non solvit praedicto 14 die Junii and not 14 die Augusti Per Cur. its good Had the Plaintiff replied quod non solvit praedicto 14 and omitted August this had been good then the addition of August is idle and surplusage 2 Rols Rep. 135. Halse and Bonithan Condition to pay 10 l. 10 s. The Defendant pleads payment of 10 l. Secundum formam c. upon which Issue and Verdict pro Querente and yet Repleader Awarded Hob. p. 113. Kent and Hall On Colateral Point COndition that the Obligor shall find three men to go with him to Y. and he â—urmiseth they went with the Obligee if the Obligee saith they did not go with him this is no Issue for if one of them fail the Obligation is forfeited 4 H. 7.8 per Vâ—visor Condition If M. W. the Plaintiff doth not depart out of the Service of the Defendant without License of the Defendant nor Marry her self but with his consent then if
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
the Plaintiff demurs Judgment was given for the Plaintiff upon this point Because the Defeasance was pleaded to be made after the Obligation and if it would avoid the Obligation it should be made at the same time quod mirum Sandâ—s 2 Rep. 47. I should rather have conceived the Reason of their Opinion for the Plaintiff to have been for that it was an Obligation with a Condition and the Condition is it self a Defeasance and that a Defeasance upon a Defeasance is improper and confused but qu. â—e â—c ratione B. acknowledges a Statute to S. There was a Defeasance That if his Lands in the County of S. should be extended the Statute should be void Per Cur. the Defeasance is good and not repugnant because it s by another Deed but the Condition of a Bond not to sue the Obligation is void 〈◊〉 n. 1035. Trot and Spurling What amounts to a Defeasance and what not THat the Bond shall not be sued before such a Feast if he be sued it shall be void 21 H. 7. 23 30. The Defendant pleads in Bar That the Plaintiff by his Deed indented after the making of the Obligation grants to the Defendant that he will not prosecute or molest the Defendant by force of the said Obligation before the Feast of c. and demurs Per Cur. it s no Bar but a Covenant and if it were that he will not sue him at all that may be pleaded in Bar to avoid circuity of Action 1 Anderson p. 307. Dowse and Jeoffreys An Obligation from A. of 20 l. to T. B. with Condition if he paid T. B. 40 s. at such a day then it should lose its force and after B. was bound to A. in another Obligation which was indorsed on performance of Conditions specified in an Indenture and after the end of the Conditions endorsed on the last Obligation were these words Provided always that where the said A. is bound to the said B. in a Bond of 20 l. the said B. shall not sue for the Sum comprised in the said Obligation until the Condition specified in the said Indenture mentioned in this present Obligation be performed after A. sued the first Bond and B. pleaded this matter and averred that the Conditions in the Indenture are not yet performed Per Englefield and Shelly This is not a good Plea the Condition to defeat another Obligation is impertinent and the first Obligationâ— had an Indorsement on it which shall serve for the Defeasance of it 26 H. 8. fol. 9. Several Bonds were sealed for the payment of Monies and after by Indenture the Plaintiff did agree with the Defendant that if the Defendant should pay to Elizabeth the Daughter 500 l. and shall perform the other things c. that all the Obligations shall be void and be delivered up its was agreed this was a good Defeasance of the Obligation but for other Faults in the Plea Judgment pro Quer. Bridgmans Rep. 116. Lee and Wood. Memor I William I. do owe and am indebted to E. H. 10 l. for the payment whereof I bind my self c. In witness c. Memor That the said W. I. be not compelled to pay the said 10 l. until he recover 30 l. upon an Obligation against A. B. Per Coke That which comes after in witness is not part of the Deed but shall have its force as a Defeasance but then the Defendant must plead it 2 Brownl Rep. 98. Hammond and Jethro Per Coke A Man without a Defeasance may plead that the Statute was acknowledged for payment of a lesser Sum 1 Brownl 51. in Broksbys Case The Statute was defeasanced on this Condition If R. E. observe perform and accomplish the last Will and Testament of Sir J. E. his Father and pay and content all the Bequests and Legacies according to the true intent and meaning of the said last Will. Sir J. E. deviseth Land in Capite in Fee after his death R. E. enters into a third part of the said Lands by the major-part of the Judges the Statute is not forfeit Jones p. 267. Sir Rowl Egertons Case in Chancery If the Defeasances on a Statute be by Indenture and vary the words of the Defeasance are the Act and Words of the Conusee only and not of any other and if his part of the Indenture vary from that part delivered to the Conusor in that that it varies its utterly void 2 Anderson p. â—8 Hollingsworth and Wheeler Cro. El. 532. Hollingworth and Ascue H. in Aud. Querela upon a Statute surmiseth that there was an Indenture of Defeasance if he paâ— yearly for six years 50 l. to one J. B. at the Feast at St. Michaelmas at such a place c. the Statute should be void and avers that it was to J. B's use and that he tendred at every of the said Feasts 50 l. at the place and that J. B. was not there to receive it Per Cur. 1. Though J. B. was a Stranger to the Recognizance yet forasmuch as it is averred to be made to his use he ought at his peril to be ready at the place every day to receive it otherwise the Recognizance is not forfeit when the other doth tender it 2. Though he saith not nec aliquis alius ex parte sua was there to receive it its good for it ought to come on the other part if any were there to receive it 3. He saith at one of the days he was ready and offered to pay it and J. B. was not there ad exigendâ— recipienil so the copulative made the demand material which needed not yet the surmise was good for the matter is whether he tendred or not Câ—o. Jac. 13 14. Phillips versus Rice ap Hugh Cro. Eliz. 754. vide this Case well reported Yelv. p. 38. by the Name of Hughs and Phillips A Defeasance unless made the same day of a Statute and delivered uno flatu cannot be pleaded in Bar 1 Keb. 111. Sir Rich. Bellison Qu. In the next place I shall shew several sorts of Bonds as a Bond sued against the Heir Arbitrament Bonds Apprentices Bonds Bonds for the Good Behaviour c. Debt on Bond against the Heir HOW an Heir shall be charged on the Obligation of his Father at the end of Popham Jones p. 87 155. Bowyer and Rovil vide Siderfin p. 342. It must be brought in the debet detinet Lach. p. 203. Anonymus The Bill was on the File debet detinet but the Declaration on the Roll was detinet only which could not be amended after Verdict but leave was given to the Court to declare upon the old Bill being within three Terms he may declare because the Debt else had been lost because the Heir after the Bill entred had aliened the Term ibid Debt against an Heir in the detinet only is aided after a Verdict by the Statute 16 and 17 Car. 2. cap. 8. but not otherwise 2 Keble 259 290. Siderfin p. 342. Comber and Waltoe It s