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
' its ill and per Curiam the Action for the Debt depending in this Court cannot be Attached 3 Leon. 210. After Imparlance Foreign Attachment not to be pleaded 3 Leon. 322. Babington's Case The Defendant pleads to Debt on Bond of 80 l. that the Plaintiff pendant the Bill brought against him a Plaint in London and there by Custom had attached 40 l. of a Debt due to the Defendant in the hands of J. S. in satisfaction of 40 l. due on this Bond and demanded Judgment of the Bill Per Cur. it s a Plea in Bar and not in Abatement for the Plaintiff for this part is to be barred for ever and this receipt of parcel is lawful and a Recovery in Law Aliter of a bare Acceptance Cro. Eliz. p. 342. May and Middleton The Debt follows the person and it s therefore called a Foreign Attachment because let the Debt rise where it will its attachable if the Debtor cometh or the Mony be brought into London 2 Keb. 320. Mollam and Hern. W. was bound to K. in a Recognizance of 400 l. and K. was bound to W. in a Bond of 100 l. W. according to the Custom of London affirmed a Plaint of Debt in the Guild-Hall against K. upon the said Bond of 100 l. and attached the Debt due by himself to W. in his own hands and now K. sued Execution against W. upon the Recognizance and W. brought Audita Querela and it was allowed 1 Leon. 297. Wallpool and King An Obligation for an 100 l. on Condition to pay 50 l. before the 25th of March. The Defendant pleads a Foreign Attachment of the 50 l. the 17th of February in the hands of Watts and a Retorn that it was attach'd but there was no Scire facias till April after Before the day of payment a Creditor of the Plaintiffs scilicet c. attaches the 50 l. and gives Security in the Court according to the Custom to pay the Debt if it be disproved within the year and day The Plaintiff demurs as being no sufficient Attachment being before the Mony was due The custom of London is to attach a Debt before its due contrary to 3 Cro. 184 yet it may not be levied till after the time of payment of the Obligation there is only a seizure and a Cesset Executio till the Mony be due Also the party against whom the Execution is sued is not to give Security but to pay the Mony but the party that sueth the Execution is to give it to return the Mony if the Debt be disproved within a year and a day Also the Judgment had there is pleadable Also per Cur ' its a good Bar for the whole but if it were for part as 20 l. this Record of the Attachment shall be pleaded in Bar for part i. e. pro tanto Siderfus p. 327. 2 Keb. p. 202. Robins and Standard Vide Co. Intr. 142. Ra. Entr. 158. Pleading to the Jurisdiction IN Debt on an Obligation in the Palace-Court averring neither of the parties were of the King's Houshold After Judgment on Non est factum the Defendant assigns for Error that the Plaintiff was the King's Brazier To which the Plaintiff demurred because the Defendant by the Record is estopt to say that but should have taken Issue on the Averment Which the Court agreed as on alledging a Cause infra that was out of the Jurisdiction this must be pleaded and cannot be assigned for Error 3 Keb. 372. Newnan and Rivet Condition to deliver a certain quantity of Tin at a certain place within the Jurisdiction of the Stannary And the Defendant pleaded to the Jurisdiction of the Court that it was a Tin Cause The Charters are to the Cause and shall not be restrained to persons though the Defendant be not alledged in the Plea to be a Tinner It was allowed 1 Rol. Rep. Pinson and Smale Obligations Conditions Recovery pleaded in Bar. THree are bound pro toto in solido the Obligee had Judgment to recover against one of them and afterwards sues an Action against the others this Recovery is not a Bar because no satisfaction of the Duty but Execution is a good Plea 4 H. 7. 8. b. Co. Rep. 6.46 a. Higgin's Case As long as Judgment remains in force a man shall not have an Action on the same Bond for the Debt is changed into a higher nature of Record Cro. El. p. 817. Preston's Case An Action of Debt brought by the Executor on Bond made to the Testator The Defendant pleads that the Testator in vita sua in Curia de Banco hic recuperavit debitum praedict ' cum 40 s. pro misis without alledging the Execution quod quidem Recordum recuperationis was removed per breve d'Error ibid. remanet minimè reversat ' The Plea was good 6 Rep. 44. Higgin's Case Aliter if Recovery be by Debt sur Bond in the Courts per Justices Ibid. And though the Recovery be erroneous yet so long as it remains in force it ought to be executed and when it is Reversed the Obligee is restored unto his new Action upon the said Obligation Ibid. If a man bring Debt upon Bond and he is barred by Judgment so long as the Judgment stands in force he cannot have a new Action So when he hath Judgment in an Action upon the same Bond so long as the Judgment remains in force he shall not have a new Action Ibid. The Defendant pleads the Plaintiff brought another Action upon the same Bond in London to which the Defendant there pleads Non est factum and so found there And upon this Verdict the Entry was That the Defendant should recover Damages against the Plaintiff and the Defendant be without Day but no Judgment that the Plaintiff Nil capiat per Billam And so per Cur ' no Judgment to bar the Plaintiff 1 Brownl p. 81. Levet and Hall Vid. 7 Cro. Jac. p. 284. Debt sur Bond of 600 l. vers K. in Bristol The Defendant pleads a Recovery in B. R. upon the same Bond against the same Defendant per the Plaintiff Et hoc paratus est verificare The Plaintiff Replies Nul tiel Record unde petit Judicium debitum suum praedict ' sibi adjudicari The Defendant Rejoyns Quod habetur tale Record ' prout per Record ' in B. R. apparet Per Cur ' he that will joyn Issue sur Record ought to say Et hoc paratus est verificare prout per Recordum illud vel verificare prout Curia hic consideravit and so are all the Presidents yet in Error Judgment was affirmed for the Defendant in the Writ of Error and that the first Judgment should be affirmed notwithstanding it was prout per Record ' illius plenius liquet Siderfin p. 329. Knight and Pitt Vide 2 Keb. 250 278. Two were joyntly and severally bound In Debt brought the Defendant pleads the Plaintiff recovered against the other the same Debt and had Execution It s a good
the Defendant shall pay to the Plaintiff within 28 daies after demand by her made at his House 100 l. that then c. The Defendant pleads that the Plaintiff on the 4 of May 30 Eliz. departed out of his Service without License The Plaintiff replies that 6 of Sept. the same year she departed out of his Service with License and that the 4 of Octo. after she demanded the 100 l. and he refused absque hoc that she departed out of his Service the 4 of May 30 Eliz. Sans License and the Writ bear date the 18 of Octob. next after the demand fo that the Defendant hath not 28 days after the demand to pay the 100 l. Per Cur. the Issue is taken upon the departure out of the Service and the Defendant in his Plea hath relied upon it and the demand is not material 2 Leon. p. 100. Monings and Warley Condition to pay a Robe and an Horse one cannot make several Issues as he paid not a Robe hoc petit c. he paid not an Horse hoc petit c. aliter in Covenant 2 Keb. 69. Young and Gosling Verdict DEbt on Obligation against C. per minâ—â— pleaded and Verdict and Judgment in the Court of B. The Jury in assessing off Damages say pro misis custagiis but do not say circa sectam expenditis and there is no Verdict to warrant the Judgment and it was Error Stiles 164. Crible and Orchard After non est factum by one pleaded the Jury find the Bond sealed by two it alters not the Bond but they are as distinct Deeds 2 Keb. 872. 881. Zouch and Clay Condition for the payment of 300 l. within six Months after the Death of the E. of Huntingdon The Defendant pleads the 1 of May. 39 Eliz. the Earl died and that within six Months after viz. the 1 of Dec. 41 Eliz. he paid the sum Issue was he did not pay it mode forma The Jury found he did pay it the 1 of Dec. 41 Eliz. and so for the Plaintiff this was Error the payment alledged the 1 of Dec. 41 Eliz. is void it ought to have been enquired whether he had paid it within the six Months and Judgment shall not be given on his implicit confession of Non-payment within the six Months Cro. Eliz. 823. E. Huntington versus Hall The Verdict was non solvit the said 40 l. super quartam dem Octobris where it ought to have been supra quartam decimam Judgment on this Verdict and Error brought yet amended Cro. Jac. 185. Harrison against Fulstowe Condition for the payment of 100 l. by J. A. J. C. and J. V. or any of them J. A. pleads that he paid it at the day the Plaintiff replies that neither the said J. A. J. C. nor J. V. nec eorum oliquis had paid it at the day the Jury find that the said J. A. had not paid the said 100 l. Judgment pro Querente Error assigned because the Verdict was not according to the Issue for it might have been paid by any of the others Per Cur. it s a good Verdict the addition of J. C. and J. V. not mentioned in the Bar was but Surplusage and their finding J. A. did not pay the Mony its sufficient and if it had been proved that any of the other two had made the payment the Jury should have been directed to find that the Defendant had paid it by such Cro. Jac. p. 6. Arscott and Heale Judgment Costs and Damages WHere the Plaintiff had a Verdict for him there Judgment is quod recuperet debitum dampna and Costs assessed by the Jury and further de increment ' per Cur. But if he had Judgment on non sum informatus Demurrer or nihil dicit the Judgment is quod recuperet debitum damna which include the Costs In the Common Bench it is quod recuperet debitum damna occasione detentionis 2 Rols Rep. 470. Broad and Nurse Judgment quod recuperet debitum 6 s. 8 d. pro damnis occasione c. and no mention pro misis custag quod inquir ' damna includes both and so is the course of Entry Cro. Jac. 420. Ashmores Case The Judgment was quod recuperet debitum suum and doth not say praedict ' its good enough there is but one Debt and the ideo in the Record implies it to be the same Debt Stiles 251. Port and Midleton The Court may tax Damages without a Writ of enquiry in Debt on a Judgment upon Bond Siderfin p. 442. Roo and Apsley H. 21. and 22. Car. 2. Action of Debt on several Obligations having but one Count and several Issues some found for the Plaintiff and some for the Defendant and several Damages but intire Costs It was prayed that Judgment may be reverst as to part But a Judgment cannot be reverst in part neither as to persons or things and Hobart p. 6. Miles and Jacob denied to be Law 1 Keb. 232. Anonymus Debt sur Obligation of 16 l. Plantiff declares ad damnum 10 l. On non est factum found pro Querente The Jury gave the Plaintiff Damages 9 l. besides the 16 l. and he declares but to his Damages of 10 l. and so it exceeded But Judgment pro Querente for the Court may increase Costs Noy 61. Wolf and Meggs The Plaintiff Demurs on the Defendants Bar and the Court awarded the Plea good upon which Judgment the Plaintiff â—â—rt Error and therein the Bar awarded insufficient and so the Judgment reverst and the Judgment was that the Plaintiff should recover his Debt and Damages as if he had recovered in the first Action and not to be restored to his Action only Yel p. 41. Taylor and More In Misericordia or Capiatur WHere the Party denies the Deed of his Ancestor and it is found against him by Verdict Misericordia shall be entred against him and not a Capiatur Where the Party denies his own Deed and it is found against him by Verdict a Capiatur shall be entred against him 2 Sanders 191. Mortlack and Charlton Where the Defendant pleads non est factum and after diverse Continuances relictd verificatione confesseth the Action Qu. if Judgment shall be given on the Plea or on the Confession 8 Rep. Beechers Case is that a Capiatur shall be entred but the better Opinion is that the Defendant shall not be fined but amerced and a Misericordia shall be entred against him on his own Confession and so is the course to enter in Com. B. and B. R. also 2 Sanders 191 192. The reason is good in Cro. Jac. 64. Davis and Clark and 2 Rols Rep. Gerard and Warren For tho' the Defendant by his false Plea hath delayed the Plaintiff of his Action yet the Capiatur is not for the delay but for the falsity rather And then when he comes in and before Verdict confesseth the truth he saves his Fine for he hath put the Court to no trouble 2 Keb. 694.
party doth intend to bind himself shall serve Memorandum That I Ben have received 20 l. of C. which 20 l. I Ben. promise to pay to D. in witness whereof I have hereunto set my Seal this is a good Obligation 22. E. 4.22 cited in Roll. 2. Abr. 146. If it be I shall pay to you 20 l. In witness c. I put my Seal it s a good Obligation 22 E. 4.22 So these words Concedo vobis c. makes a good Bond 22 E. 4.22 Hatley's Case If a Man by his Deed say that I owe to C. 20 l. to be paid at Easter next or I had of C. 20 l. of which I owe him 10 l. or to be repaid him again or I A. B. do bind my self to C. that he shall receive 20 l. and such like these are all binding Obligation was made in such manner Be it known to all Men that I doe owe unto Oliver 26 l. to be paid such a sum at Michaelmas and such a sum at Lady-day and in truth the particular Sums do not amount unto 26 l. this was not a good Obligation for 26 l. Rolls 2 Rep. Tr. 18 Jac. B. R. Oliver's Case If A. acknowledge by a Bill Obligatory himself to owe 10 l. to B. to be paid at a day to come and by the same Bill binds him and his Heirs in 20 l. and saith not to whom he is bound yet it is good and it shall be intended to be bound to B. adjudged upon demurrer Rolls 2. Abr. tit Oblig p. 148. Franklin and Turner Obligation was written in this form Know all Men c. that I H. W. am bound to W. Gore c. in the Sum of c. for the payment of which Sum I give full power and authority to the said Gore to levy the said Sum upon the profits of c. until the same be paid Defendant pleads the Plaintiff had levied part of the said Sum and shews not how ill Plea Per Curiam the Plaintiff may at his liberty bring his Action upon the said Obligation or levy the said Monies according to to the Clause aforesaid 3 Leon. fo 223. Gore and Winckfeild An Obligation of 200 l. to two Solvend the one hundred pound to the one and the other to the other it is a void Solvend 18 Eliz. Dyer 350. Hob. p. 172. in Stukeley's Case yet Brownlow seems contra 2 Rep. p. 207. Obligation to two solvend 10 l. to the one and 10 l. to the other both ought to join in Debt on this Obligation But an Obligation made to three solvend to one of them is good Memorandum I John B. have agreed to pay J. S. 20 l. though it be in the Preterperfect Tense and wants the word In cujus rei testimonium yet is a good Bill 1 Leon. p. 25. Bedowes Case And per Wray dedi concessi are used as words of a present Conveyance This Bill witnesseth that I R. S. have received of T. P. 40 l. to the use of Robert and Jane Shaw Children of c. equally to be divided between them which Sum I confess to have received to the uses aforesaid and the same to repay again at such a time as shall be thought best for the profit of the said R. S. and J. S. R. S. dies intestate his Administrator brings Debt for 20 l. and counts that the Defendant by his Bill Obligatory shewn in Court acknowledged se recepisse 20 l. of T. P. to the use of the intestate solvend at such a time quod videtur opportunum pro proficuo of R. S. the intestate and shews that at such a time videbatur opportunum c. and he demanded it Upon Oyer the Defendant demanded Judgment of the Writ and Count as not warranted by this Bill per Curiam 1. This is a good Bill Obligatory and shall be intended to be delivered to the use of the Plalntiffs intestate the Plaintiff hath supposed it in his Declaration and the Defendant hath admitted it otherwise he ought to have pleaded non est factum 2. The Receipt of this Mony shall be made to R. S. and J. S. and not to T. P. 3. It is as several Bills of 20 l. apiece and are divided Debts by the words equally to be divided and so shall not survive Crook M. 41 Eliz. fo 729. Shaw and Sherwood Be it known c. I Tho. J. do bind my self to J. M. to pay unto him all such Monies as my Brother owes him In witness c. And in the end of the Bill was written that Will. the Brother of Tho. J. owed to M. 40 l. with this Averment in the Declaration it is a good Bill and Action lies for it is reduced to a certainty Crook Eliz. p. 561. Morgan and Johnson and yet p. 758. dubitatur Be it known that I Tho. D. do owe unto A.B. 50 l. to be paid him 10 l. at such a day and so at five several days 10 l. until 50 l. were paid and for payment hereof I bind me c. in 10 l. nomine poenae Obligee after five days past brings Debt for 50 l. and good for it is a several Bill for the 50 l. and a Bill also for the 10 l. Crook El. p. 771. Anonymus Memorandum I do owe and promise to pay to A. 10 l. at any time after the Feast c. when she shall require it for payment whereof I bind my self c. to J. H. by these Presents It is a good Bill to A. by the words of the first part and the words which oblige him to J. H. are void Crook Eliz. 886. Hardman's Case Bill Obligatory written in a Book with the Defendants Hand and Seal to it good Crook Eliz. p. 613. Fox and Wright Be it known that I do owe unto P. 14 l. to be paid at c. together with 6 l. which I owe him upon Bill and Recognizance subscribed under my Hand Plaintiff brings Debt for 20 l. and adjudged against him because the Bill made him Debtor only for 14 l. Moor n. 670. Parry and Woodward The Defendant by Deed acknowledged he had received of T. 40 l. to the use of his Master to be paid at Michaelmas following and sealed it In Debt the Defendant demurs supposing this was only a Deed testifying the Receipt to anothers use and not to charge himself Curia contra for the Clause of the repayment is general Aliter If the Bill had recited the Repayment to be made by the Master then it had been but a Receipt and meerly to anothers use Yelv. p. 137 147. Talbott and Godholt Now I shall put a Case or two how words written in a Bill after the In cujus rei Testimonium shall be expounded whether as parcel of the Bill or not My Lord Cook in Hamond and Jethro's Case 1 Brownl Rep. 59. held that whatsoever comes after these words In witness c. is no part of the Bill but may be a Condition and must be pleaded and not demurred
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.
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
to pay 11 l. on the 12th of February the Defendant pleads Accord the 8th of February that if he paid 8 l. on the said 12th of February that he would accept it for 11 l. and pleads Tender at the day uncore prist Per Cur. Concord is no Plea without satisfaction Cro. M. 32 33 Eliz. Tassal and Shaw Agreement to pay part and promise to pay the rest no Plea to a Bond Cro. M. 35 36 Eliz. Balston and Baxter Had he pleaded a lesser Sum paid before the day and at another place in satisfaction of a greater sum it had been good Ibid. Condition to deliver twenty Quarters of Barly the Defendant pleads in Abatement that pendente billa that the Plaintiff had accepted fifteen parcel of the said twenty Ill Plea for it is Collateral and not parcel of the Sum contained in the Obligation and if it be a Plea it s a Plea in bar and not in abatement Cro. Eliz. 253. Doct. pla 6. Vid. pluis in titulo Payment infra Condition to make a sufficient account of all Rents Revenues c. The Defendant pleads That before the Feast he Let to the Defendant an House c. in full satisfaction of all manner of Accounts to which he agreed and entred Nul Plea Dyer 1. Case 1. Vid. pluis ibid. Payment pleaded OF payment and acceptance of a lesser Sum before the day in satisfaction of a greater Vid. supra tit Pleading Acceptance Concord c. Payment of parcel hanging the Writ is a good Plea to the Writ 5 H. 7.4.1 an Acquittance of the receipt of part hanging the Writ goes to all the Writ Et Nota Where payment is not a Plea in bar receipt pendant the Writ is no plea to the Writ Doct. placit 108. The Defendant pleads acquittance for parcel if the Plaintiff acknowledge his own Acquittance he abates the whole Writ Per Cokaine the Plaintiff shall recover all that the Defendant acknowledged and as to what he had received the Plaintiff is to be amerced 3 H. 6.48 The Defendant pleads after the day of the Writ purchased viz. such a day he paid to the Plaintiff 60 l. parcel thereof which he received Judgment of the Writ The Plaintiff demurs specially because he shewed not any Acquittance or Release testifying it Judgment for the Plaintiff Cro. Eliz. p. 884. Colbroke and Foster In Debt on a single Obligation payment without acquittance is no plea. Otherwise in Debt on Obligation with Condition 28 H. 8. Dyer 25. b. 15 Ed. 4.6 a. 33 H. 8. Dyer 50. b. 51. a. Payment with acquittance pleaded in an Action of Debt on a Bond is not double because the Acquittance only is issuable and the payment is but Evidence 1 H. 7. 15. b. If the Plaintiff by Deed had confessed himself to be satisfied of the Debt though he had received nothing yet this a good bar 30 H. 6. tit Bar 37.5 Rep. Pinnel's Case fo 117. b. Condition to pay 70 l. viz. 35 l. at one day and 35 l. at another day at the Temple-Church The Defendant pleads payment of the 70 l. at Ludlow secundum formam effectum Conditionis praedict Verdict pro Querente Assigned for Error for that he ought to have pleaded several payments but per Cur. its good enough reddendo singula singulis secundum formam effectum c. Cro. Eliz. p. 281. Fox versus Lee. Condition was to pay 20 l. the 7th day of Mdy 1558 at the House of the Defendant in S. It was found by Verdict that the Defendant paid the 20 l. before the 7th day of May at the said House but not solvit the 7th day of May. It was Adjudged a good payment More N. 400. Bond and Richardson Debt on Bond by a Bishop the Defendant pleads he paid the Mony at the day to J. S. Bailiff of the Plaintiff and by his commandment and avers that this came to the use of the Bishop This Averment makes the plea double for if the Bayliff receives this by command from the Bishop notwithstanding this doth not come to his own use yet this is a sufficient discharge to the Defendant 22 Ed. 4.25 a. But In Debt on Obligation payment of the Mony to J. S. by commandment of the Plaintiff is no plea without shewing that the Plaintiff was indebted to him 27 H. 6. 6. b. Where mistake in pleading the Sum or the Time is aided and where not IN Debt on Bond of 200 l. Condition to pay 105 l. c. The Defendant pleads payment of the aforesaid 100 l. at the day The Plaintiff replies quod non solvit praedict ' 105 l. Et hoc petit c. and it was found he did not pay the 105 l. Judgment pro Quer ' and Error assigned for that there is not any Issue joyned and so the Verdict ill and Judgment erroneous The saying Secundum formam effectum Conditionis shall not help it as if it should be intended the aforesaid 105 l. Cro. Jac. p. 585. Sandback and Turvey Such a Case was in Cro. Car. fo 593. Derby and Hemming and no Repleader could be granted but Judgment was reverst But where the Defendant pleaded to Debt on Bond payment of 50 l. on the 14th of Jun. 11 Jac. The Plaintiff replies he did not pay it the said 14th day of August Anno 11. supradicto quas ei ad eundem diem solvisse debuisset and Verdict found that he did not pay it the 14th day of June yet 't was no Error For the Defendant's Plea was according to the Condition and the Plaintiffs Replication quod non solvit the said 14th day was good and the misnaming the Month August is idle and superfluous praedicto quarto decimo die had been sufficient But in the other cases of mistaking the Sum there was another Sum in the Plea of the Defendant than was in the Condition and another Sum in the Replication than is in the Bar and so no Issue In Debt on an Obligation the Defendant pleads Solvit ad diem de hoc ponit c. where it should be hoc paratus c. for then the Plaintiff should have replied Non solvit Et hoc petit c. so there had been an Affirmative and a Negative Per Cur. forasmuch as the Plaintiff joyns Issue and the Jury find he hath paid its good enough and aided per Stat. Jeofails and Judgment was not arrested Cro. Car. 316. Parker and Taylor So 3 Keb. 29 Car. 2. p. 764. Helder and Brudnall Condition to pay a Stranger at three payments the Defendant on Oyer pleads payment according to the Condition of another Obligation to the Stranger The Plaintiff demurs and the Plea is Ill because the other Bond to the Stranger is not set forth as the particular days of payment 3 Keb. 612. Nichols and Nichols Release Pleaded J. S. makes an Obligation dated and delivered on the first of May and on the first of June following the Obligee makes a
Rowel and Roo The Court seemed in doubt tho' the Secondary said it was in mia ' generally Cro. Jac. 420. Ashmore and Ripley Precedents are both ways 2 Keb. 704. Mortlock and Charlton Judgment in Debt where the demand is in the debet detinet is to recover Debt Damages and Costs of Suit and the Defendant in mia ' but if the Defendant denies his Deed then a Capias pro Fine issues out 1 Brownl p. 50. The Earl of L. pleaded non est facium and found against him The Judgment was ideo Capiatur and good tho' he be a Peer of the Realm for a Fine is due to the King and none shall have Priviledge against him Cro. Eliz. 503. Earl of Lincoln against Flower Condition If Henry and Robert H. pay c. The Defendant Robert pleads solvit ad diem and found against him and Judgment pro Querente quod recuperet debitum damna against the said Robert praed ' Henricus in misericordia where it should have been Robert for Henry was no party to the Record this was ore tenus assigned for Error and it being a misprision of the Clerk it was amended Cro. Car. 594. Pelham and Hemming The Defendant confest the Action and it was entred non potest dedicere actionem quis non solvet Per Cur. he having confest the Action the words quin non solvet are not material but surplusage and the Plaintiff had Judgment Cro. Eliz. p. 144. Long and Woodliff The Defendant pleads per minas the Plaintiff saith he did it spontanea voluntate and Traverseth the minas and at the Nisiprius the Defendant cognovit actionem non potest didicere but that he made it at large which is to a Plea per duress But per Cur. in regard it is entred quod cognovit actionem it is not necessary for him to acknowledge the point in Issue and that which comes after the the cognovit actionem is but surplusage Cro. Eliz. p. 840. Brown and Holland Debt against Baron and Feme on Obligation on made to the Wife dum sola On non est factum and found pro Querente Judgment shall be Capiantur for both Cro. Eliz. p. 381. Perey's Case The Plaintiff declares upon a Bill quod reddat ti imum dolium ferri deliberand within such a time and on non est factum pro Querente Judgment was quod Querens recuperet dolium ferri vel valorem ad damna c. and upon this a Writ Issues ad distringend ' the Defendant quod reddat praedictum dolium ferri vel valorem ejusdem si non reddat dolium tunc per Sacramentum inquiratur quantum idem dolium valet And before any return of this Writ of enquiry the Plaintiff takes out a Capias upon the Judgment Its Error 1. because the the Judgment is in the Disjunctive it ought to be quod recuperet dolium ferri si non valorem inde as in detinue for the Plaintiff is not to have Election which he will have 2. The Judgment is not perfect before the Writ returned and so nothing certain to ground a Capias or other Execution on Yelv. p. 71. Paler and Bartlet versus Hardyman In old times after Judgment given in Debt the Obligation was demanded because the Duty was changed into another Nature but since Writs of Error and Attaints have been so frequent the Judges thought it dangerous to Cancel the Deed 6 Rep. 46. Higgins Case Execution IN Scire fac ' on Judgment in Debt upon a Bond Course of the Rings-Bench is never to recite the Term of the Judgment given aliter in the Common-Bench 1 Keb. Tr. 13 Car. 2. fo 104. Hatton and Jackson A Writ of Error is no Supersedeas to stay Execution without Special Sureties to pay the Condemnation Mony Cro. Jac. 350. Goldsmith versus Lady Platt The Action was laid in Comberland in Debt on Bond and Judgment to Recover against Administrator The Plaintiff cannot bring a Scire facias in Westmorland but in the same County where the first Action was laid Hobart p. 4. Musgrove and Wharton Two are bound in an Obligation joyntly and severally and the Obligee Sues one of them in the Common-Pleas and the other in the Kings-Bench and a Capias against him in the Kings-Bench and took him in Execution and after took Elegit against the other and had Lands and Goods delivered in Execution as he might the other who was in Execution by his Body had an Audita Querela and was delivered and because the Judgment in that case must be that he be Discharged of the Execution he shall never be taken again tho' the Land taken in Execution be Evicted Hob. p. 2. Q. tho' in Elegit the pernancy of the profits be Executory yet it s a present Interest and so a Satisfaction 1 Rolls Rep. â— Cowley and Lydiatâ— If Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath Judgment to Recovery a joynt Execution ought to be sued against both But if the Suit were by one Original and several Praecipe's Execution may be sued against any of them 1 Leon. 288. agreed per Cur. 1 Rols Rep. 44. Bâ—nks Case A. and B. are joyntly and severally bound to C. C. took-out a Process against them by several Praecipe's and had two several Judgments and took out two several Executions of one Test viz. Fieri facias against A. and Ca. Sa. against B. Q. if the Writs are well awarded here the Fieri facias was Executed for all and therefore no Ca. Sa. shall Issue out Winch Rep. p. 112. Holts Case If two are bound joyntly and severally to me and I Sue them joyntly I may have a Capias against them both and the death or escape of the one shall not discharge the other But I cannot have a Capias against one and another kind of Execution against the other because tho' they be two several persons yet they make but one Debtor when I Sue them joyntly But if I Sue them severally I may sever them in their kinds of Executions But yet so if once a very Satisfaction is had of one or against the Sheriff upon an escape of one the rest may be releived upon an Audita Querela Hobart p. 59. in Fosters Case One of the Obligors was in Execution by Ca. Sa. and the Sheriff voluntarie permisit ad Lurgum This was pleaded by the other Obligor Judgment pro Querente for the Execution against one is no Bar but that he may Sue the other and tho' he escaped so as the Plaintiff is entitled to an Action against the Sheriff yet that shall not deprive him of his remedy against the other aliter if he had pleaded the Sheriff c. by the License or Command of the Plaintiff Cro. Car. 75. Whittacre and Hamkinson Two are bound joyntly and severally in an Obligation one was Sued and taken in Execution and afterwards the other was Sued and taken
Obligation it is void 14 H. 4.30 Feme IF a Feme Covert make an Obligation it is void 14 H. 4.30 and she shall plead she was Feme Covert and conclude issint non est factum because it is void But an Infant shall not do so because his Bond was only voidable and he shall conclude Judgment si actio 1 H. 7. 15. Donn's Case Vid. pluis postea sub tit plead non est factum Debt brought against J. S. and Elianor his Wife upon Bond made by the Wife Defendant pleads quod tempore confectionis and shews the day she was Feme Covert The Plaintiff confesseth this but saith she sealed the same Deed the same day of her marriage before the Espousals in the morning Defendant demurs The Plaintiff had Judgment 2 Rolls Rep. 431. Jackson's Case Debt on Bond by Baron and Feme The Defendant pleads the Wife had another Husband living The Plaintiff replies the Wife ad annos nubiles disagreed to the former marriage and good Moor n. Warner and his Wife versus Babbington Feme Obligor of full age takes Baron within age in Debt on Obligation they pray his age but denyed Noy p. 69. Infants IF an Infant make an Obligation this is not void but voidable If an Infant seal a Bond and he be sued thereon he cannot plead non est factum but it must be avoided by special pleading and conclude Judgment si actio for the Bond was not void but voidable 5 Rep. 119. Whelpdale's Case 1 H. 7.15 Donn's Case Vid. postea An Obligation or Covenant of an Infant for his Apprentiship shall not bind him neither at Common Law nor by the words of 5 Eliz. yet the Indenture shall bind him because he is compellable Yelv. 225. contra Octogenta libris with Condition of payment of 40 l. it was adjudged good for octogint though it is minus Latinum 10 Rep. 133. Fitzhughes Case cited in James Osborns Case Hob. p. 19. contra The Record of this Case is set forth at large in Hobart but there is no mention of the Condition the Obligation was in septungenta libris with Condition of payment of 350 l. and good 10 Rep. 133. cited in James Osborns Case so in vigint libris this is a good Obligation for 20 l. in Osborus Case If a Man be bound in quingint duabus libris this is a good Obligation for 52 l. the Condition being for the payment of 36 l. it cannot be taken for 500 l. because it is not gentaâ— but it shall be taken as an abbreviation of quinquagint this was adjudged upon a special Verdict where the Plaintiff declared upon a Bond de quinquagint duabus libris and the Defendant pleaded non est factum Cro. M. 11 Jac. 416 418. Downs and Haithwait A Man is bound in octogesimo libris pro octogint libris its good 2 Rolls Abr. 147. Moor n. 1123. 1 Brownl 60. Vernon and Onslow in quinquagessimis libris pro quinquagint libris good being all of one sense so fiftieth and fifty pounds Cro. M. 9 Jac. Els and Clark Debt upon a Bill Obligatory for thirty two pounds and upon Over of the Bill it was threty two pounds adjudged pro quer ' Cro. Jac. 607. Hulbert and Long. The Obligation was in centem libris and upon non est factum pleaded on a special Verdict the question was whether it was his Deed or not because it was centem for where a Deed is void non est factum is a good Plea but adjudged it was all one with centum and the Condition shewed it to be an 100 l. Stiles Hill 1653. fol. 438. Yorkhurst and Scot. One is bound in vigint nobulis its good 2 Rolls Abr. 146. Cro. Jac. 203. 1 Brownl 95. Durchin and Vaughan Debt is brought for 600 l. on Bond on Oyer it was sexagint for this Variance the Defendant demurs per Cur. this Obligation doth not warrant the Declaration because it is another Sum and cannot be taken for sexcent Cro. M. 5 Jac. fol. 203. Greggs Case One is bound in sexgint libris for sexcent libris this is not good it s not a Latin word Yelv. p. 105. 2 Rolls Abr. 147. Grey and Davis In terengentate liberis its a void Bond for both words are insensible Cro. M. 18 Jac. 603. Hills and Cooper In quint aginta libris is ill but there is a good remedy in Equity on this mistake 3 Keble 644. P. 28 Car. 2. Strange and Greenhill Note There is a difference when the Condition is to pay a Sum of Mony for then the intent of the Sum may more easily be collected ut supra and a Condition to do a Collateral Act. Debt on Bond de quingent libris Defendant demands Oyer and it was in quemquegent libris the Condition was to do a collateral Act Defendant pleads an insufficient Plea and the Plaintiff demurring thereon prayed his Judgment but because the Plaintiff had declared upon a Bond that appeared to be variant and the word was insensible and had not any other thing to expound it per Cur. the Obligation was void and Writ shall abate Hill 4 Jac. p. 146. 2 Rolls Abr. 146. Yelv. 95. Parry and Dale So A. is bound in a Bail Bond pro quadragent libris the Plaintilf declares pro quadragint libris for this variance Defendant demurs to the Declaration per Cur. genta refers to centum and so it s rather 400 l. than 40 l. and the Condition being collateral doth not shew the intent of the Parties adjudged against the Plaintiff Stiles p. 241 257. 2 Rolls Abr. 147 148. Feilder and Tovey So Condition to appear was novemgint for honagint and the Defendant pleaded in Abatement 3 Keble 255. Scots Case An English Bill is made seâ—teen for seventeen pounds and adjudged good in 10 Rep. 113. James Osborns Case Tenerie firmit Obligarie yet good Yelv. 193. Dodson and Keyes In viginti litteris for libris its void Partrose's Case cited in Cro. Jac. 603. Cooper and Hills Case But the Attorny who made the Bond was committed to the Fleet for Knavery In viginti lib'is with a dash it s an insufficient Bond liba signifies a Cake and the dash doth not help it Noy p. 109 Shetâ—et and Mallet One is bound in viginti liveris for libris it is not good Cro. Jac. fol. 203. cited in Durchin and Vaughans Case A Man is bound in an Obligation in libris without saying how much it s a void Obligation Yelv. p. 225. in Loggins and Tethertons Case An Obligation was made for the payment of 10 l. 8 s. and 8 not saying pence Action of Debt lies for the 10 l. 8 s. 1 Brownl Rep. p. 61. Obligation to pay 5 l. puri auri i. e. fine gold Quaer 9 H. 7.6 In respect of the Frame of the Obligation or Bill NOte the Opinion in Yelverton Dodson and Key 's Case p. 193. When the parties and the sum are well expressed to the Conusance of the Judges such words by which the
upon Debt upon a Bill of 6 l. 13 s. 4 d. and upon Over after the In cujus rei Testimonium this Clause was added in nature of a Proviso Provided that the said 6. l. 13 s. 4 d. is not to be paid until such an one hath had a Recovery in such an Action or Suit which he hath hanging against the Plaintiff upon a Bond of 200 l. conditioned for saving harmless or hath made an end of the said Suit Conclusion was dat' iisdem die anno and all this upon Oyer entred of Record Defendant pleads no end was made of the said Suit and so the time of payment not yet come The Plaintiff replies a composition of 20 l. in discharge of the said Suit and Issue pro Quer ' per Curiam the 20 l. may be given in satisfaction of the said Suit though not of the Obligation This Proviso is part of the Bill for it expressed the time of payment of the 6 l. 13 s. 4 d. If the Proviso be no parcel of the Bill then it is in nature of a Condition Per Dodderidge Its parcel of the Bill and the words In cujus rei c. are not necessary to a Deed. If it be put in and subscribed a Devastavit in him Cro. El. 478 496. Kelsook and Nicholson By what words an Obligation may be made and what shall be good and what not In respect of False Latin or English The Frame of the Obligation As to Faux Latin or omission THE Law doth make a reasonable and favourable construction of Mens Deeds and Conveyances and will support them as much as it may according to the intent of the Parties but it abhors Non-sense Repugnancy and Insensibility and will reject any thing which introduceth Incertainty and Confusion upon which no solid Judgment or weighty Authority can be founded I shall briefly lay down two or three Rules or Advertisements contained in our Books about the construction of Faux Latin in Obligations and then come to particular Cases Faux Latin shall abate a Writ for that the Party may purchase a new Writ but it shall not destroy an Obligation for the Party cannot have a new Obligation when he will 9 H. 7.16.10 H. 7. Yelv. p. 194. in Dodsons Case 1 Brownl Rep. 110. so in James Osborns Case 10 Rep. 133. Faux Latin nor Faux English shall not make void a Bond or other Deed when the meaning of the Party appeareth An Obligation shall not be avoided for vicious Writing or Incongruity the Bond was Johem A. without a dash yet good and the Declaration upon it was Johannes H. Cro. Car. p. 418. Downs and Haithwait There are two principal Things contained in an Obligation 1. The Parties 2. The Sum in which one Party is bound and when both these are sufficiently expressed to the Conusance of the Judges as the Obligor and Obligee are well named and the Sum well expressed or easily without straining understood to be the intent and by such words by which the Party doth intend to bind himself it shall serve if it be well executed Yelv. p. 193. Brownl Rep. 110. Dodson and Keyes and therefore in that Case tenerie firmit obligarie was held good so if a Bond be Obligamus me haeredes c. it shall be good One is bound in Triginti libris for Triginta its good Rolls Abr. â— p. 146. Taylor and Thorp in sexigint pro sexagint yet good 2 Bulstr 241. 1 Rolls Rep. 47. Hob. p. 20. Marshall and Jolly Septuagent for septingent was holden to be good septua being easily understood for septem and the Condition was for payment of Mony less than the Penalty Hob. p. 116. Yelv. p. 95. 2 Rolls Abr. 147. Walter and Piggot If a Man is bound in sexingentis for sexcentis libris this is a good Obligation for sexingent is good Latin 2 Rolls Abr. 147. A Bond was made in Italian and it was sessanta libris for sexagint and good Cro. Jac. 208. Hob. 19. Parker and Kennedy A Man is bound in trigintata for triginta yet it s good Hob. p. 18. 2 Rolls Abr. 147. Loggins and Tetherton by the Statute to be bound and upon misbehaviour Remedy lies by Correction of the Master or the Justices Crook Hill 5 Cor. fo 179. Gilbert and Fletcher The Plaintiff had paid Mony for the necessaries of the Infant and took Bond in double the sum its void otherwise if he had taken Obligation for the very Sum Crook Hill 45 Eliz. fo 920. Aileff and Archdale If the Bond be of excessive value the Infant may traverse absque hoc that it was for necessary Apparel and the Plaintiff must reply specially and shew the Bond to be suitable to the price of the things Quâ—r If the Jury ought to find in such case non est factum 1 Keb. M. 14 Car. 2. f. 416 423. Russel and Leâ— An Infant submits himself to an Arbitrament its voidable for he may wave it if it be to his prejudice during his Minority but if he do any thing which amounts to an Agreement at his full age it shall bind him Noy pag. 93. Stone and Knight The Bond beareth date when the Defendant was within Age but it was sealed and delivered at full age The time of making the Bond shall be when the Bond is sealed and not when it bears date 1 Brownl Rep. p. 3â— Debt on Bond dated 10 June and delivered the 18th of the same month the Defendant pleads by Protestation it was delivered the 18th day absque hoe that at that time he was of full age Noy p. 34. If an Infant make an Obligation and being 〈◊〉 upon it an Attorny without Warrant suffers a Judgment by non sum informatus if he were within age he shall have a Writ of Error if he were not he shall have a Writ of Disceit against the Attorny but no Audita Querela Winch p. 114. Ashly and Collings Non compos mentis IF a non compos mentis seal a Bond he shall not avoid it himself 4 Rep. 124. Beverleys Case For no Man of full Age shall by Plea stultifie himself but privy in Blood as Heir or privy in Representation as Executor or Administrator shall plead the disability of him Ibid. By Body Politick THEY must be named by the true Name of their Corporation and yet if the essential part of a Corporation be named it is sufficient in an Action as ad respondend ' Majori Burgensibus de Lyn Regis in Com' N. and found they were incorporated Majores Burgenses Burgi de Lyn non per aliud per Cur ' the omission of the word Burgi shall not bar the Plaintiff 1 Brownl Rep. 57. Major and Burgesses of Lyn against Pain By what Names bound IF a Man bind himself in a faux Sirname he shall be estopped to avoid this so if by a faux Proper-name 3 H. 6.25 b. None can make an Obligation or other Writing by a contrary name of Baptism Administrator of Elianora brings
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.
Dudeney and Collier In Debt on a Bill of 40 l. to be paid at H. which is out of the Jurisdiction of the Court of Jernemutha being in the County of the City of N. which is Error the Count being upon payment generally 1 Keb. p. 378. Annison and Perkin A Condition to perform Articles one whereof was to pay Mony which the Plaintiff should disburse in composition of a Fine set on the Defendant by the Judges of Assize The Plaintiff averred he had paid 50 l. ad recept suam apud Westm and saith not in Com. Midd. The Defendant demurred the Averment was ill 2 Keb. 204 Ansly and Anslow Condition to pay Mony upon Marriage THE Condition was to pay 100 l. to the Plaintiff on his Marriage-day The Defendant pleads he had no notice given him of his Marriage-day Ill Plea for no notice need to be given 2 Bulstr 254. Selby and Wilkinson A Condition to pay 300 l. in consideration of a Marriage between the Plaintiff and his Daughter which 300 l. was to be paid within three Months after that he shall come to the age of 18 years or within 18 days of the Marriage after notice made which shall first happen Per Cur. the notice shall relate to both because it is uncertain which of them shall happen first Latch p. 158. Read and Bullington In Debt on a Bond to pay Mony upon Marriage the Jury may try Wife or not Wife but not the Legality of Marriage and it need not be alledged that the party was married at the time of the Bill The Issue here is not legitimo modo maritatus as in Dower which shall not be tryed by a Jury but in Debt on Bond it doth not draw the Right of Matrimony in question 1 Keb. 105. Tr. 13 Car. 2. Glascock and Morgan Conditions to pay Mony concerning Children or Bastards THE Condition was for the payment of Childrens Portions when they married or came to the age of 21 years The Defendant pleads that he had paid the same cum quam cito they came to their full age generally It is an ill Plea he ought to have shewed the time when they came to age and when he paid this Mony that so upon this Issue might be taken 2 Bulstr 267. Haulsey and Carpenter A Man was bound to pay to the three Daughters of a Stranger 10 l. a piece at 21 years of age The party being sick makes his Will and in performance of the Covenant for which he was bound in an Obligation devised to each of the Daughters 10 l. to be paid at 21. One sues for her Legacy and a Prohibition was granted for the intent of the Devise was he should not be twice charged More n. 368. Margery Davies Case A Condition for the payment of 120 l. at the full age of J. B. if it be demanded The Defendant pleads the Plaintiff did not demand it after the full age of J. B. Judgment for the Plaintiff for the bringing the Action is a sufficient demand Crook Jac. p. 242. Dockray and Tanning The Condition was to pay 10 s. weekly secundum ordinem fact per Justiciar c. for keeping a Bastard Child The Defendant sur Oyer pleads nullum talem ordinem fecerunt Judgment pro Quer. Otherwise if it had been secundum ordinem faciend Latch p. 125. Jermin and Randal for the one is an Estoppel to the Defendant the other is Executory Noy p. 79. vide plus sub Tit. Conditions to save harmless A Condition to pay Mony upon proof or if such a thing be proved then c. A Condition to pay within three months next after his Arrival from Rome 10 l. the Obligee proving the same by Testimonial or Witnesses the proof might be by Witnesses or Testimonial under the Seal of several Persons at Rome Moor n. 307. The Condition was If such Lands be proved to be parcel of the Mannor of Dale if then c. the Defendant pleads they were not proved to be parcel of the Mannor and demurs Per Cur. he ought to have pleaded they were parcel of the Mannor so as proof might have been made in this Action Cro. Eliz. fol. 232. Elve and Sabe Judgment pro Quer. Vide plus sub Tit. Apprentices Bonds Special Conditions for payment of Mony on Contract Agreements Contingency c. and pleadings thereon A Condition to pay 300 l. to the Plaintiff and to add 3 l. to every Hundred if it were demanded the Defendant pleads he paid the 300 l. and that he added 3 l. to every hundred secundum formam Conditionis praedict Verdict pro Quer. but Judgment pro Defendente upon Arrest because the Plaintiff ought to have alledged a Demand and this being matter of substance without which the Plaintiff had no cause of Action it was not helped by the Issue or Verdict though the words secundum formam Conditionis seem to imply a Demand Allen p. 55. Hill versus Armstrong A Condition if the Obligor pay to the Obligee 100 l. within one month after notice of his return from Constantinople into England that then c. the Defendant pleads no notice was given to him of the return c. Verdict pro Quer. Error assigned because it is not averred that the Mony was not paid and then no cause of Action but per Cur. it s no Error for when the Defendant said he had no notice this is a confession per nient dedire that he had not paid it and Issue being taken upon a collateral Matter and found for the Plaintiff he shall have Judgment Cro. El. p. 320. Griffin and Spencer The Condition was to pay 40 l. per ann quarterly so long as he was to continue Register to the Arch-deacon of C. the Defendant saith the Office was granted to A. B. and C. for their Lives and that he enjoyed the Office so long as they lived and no longer and that so long he paid the said 40 l. quarterly the Plaintiff replies The Defendant did enjoy the Office longer and had not paid the Mony the Defendant demurs per Cur. the Replication is not double for the Defendant cannot take Issue upon the non-payment of the Mony for that would be a departure from his Plea in Bar Mod. Rep. p. 227. Gaile and Bets. A Condition if they or either of them two Obligors upon request made should pay for so many Barrels of Beer as should be delivered to them so much for every Barrel as should be agreed upon between them c. the Plaintiff sets forth he had delivered so many Barrels of Bear and agreed for 10 s. per Barrel which Mony he had requested of one of the Obligors he may require payment of one or the other 3 Bulstr p. 210. Ratcliff and Clerk A Condition to pay so much per dolium breach is assigned for the Defendants non-payment of so many Tuns and three Hogsheads which per Cur. is ill the Condition being not to pay secundum ratam as in Needlers Case of
that he cannot do sans Licence Moor n. 294. Crocock and White An Action is brought against the Heir of Edmund A. the Condition Whereas the said Ed. A. such a day hath granted and given to the Plaintiff the Presentation to the Church of D. if therefore the said Ed. A. from time to time shall make good the said Grant from all Incumbrances made or to be made by him and his Heirs that then c. the Grantor died the Church became void the Heir of the Grantor presented this tortious Presentation is no Breach but this extends only to lawful disturbance by the Heir for it appears by the pleading the Heir had no right to present his Father having granted that before Per Hobert the words shall be construed as if it had been said that he shall enjoy the same from any Act or Acts made by him or his Heirs and in this Case there ought to be a lawful Eviction to make a breach of the Condition but otherwise if the Condition had been that he shall peaceably enjoy from any Act or Acts made by him or his Heirs for in this Case a tortious disturbance would have been a Breach of the Condition Winch p. 25. Dr. Hunt versus Allen. The Condition was That he should enjoy such Lands sans Eviction the Breach was assigned in the Recovery by Verdict in Ejectione Firmae upon a Lease made by one Essex and doth not shew what Title Essex had to make the Lease but avers that Essex had good Title and it might be he had Title derived from the Plaintiff himself after the Obligation made and therefore he ought to shew that he had good and eigne Title before the Lease made and in the Exchequer-Chamber the Replication held ill Cro. Jac. p. 315. Kirby versus Hansaker 2 Sanders Hele and Wotton though this was after a Verdict 2 Sanders 177 178. Id. The Condition was If the Obligee peaceably enjoy an Acre of Copyhold Land according to the Custom of the Mannor the Defendant pleads by Custom of the Mannor the Obligee ought to pay to the Lord a Rent and for non-payment the Lord to re-enter and that the Obligee did not pay it and the Lord entred and demanded Judgment si Actio bon Plea Benl p. 32. The Condition was to enjoy peaceably against M. Breach assigned that M. had entred and cut down five Elms upon Evidence it was A. Servant of M. by commandment and in the presence of his Master had entred and cut and good 1 Leon. 157. Seaman and Browning Debt on Obligation for performance of Covenants Breach assigned was the Defendant Lessor covenanted that it should be lawful for the Plaintiff being Lessee quietly to enjoy the Land and that the Lessor himself ousted him this illegal ouster was a Breach of the Covenant Cro. El. 543. Corus Case The Condition is If such Lands be discharged of all Incumbrances made by him except the Estate and Title of Jointure of his Wife Elizabeth that then the Breach is assigned that the Defendant before the Obligation made had surrendred these Lands to the use of Elizabeth his Wife it s no Breach vide Cro. El. p. 761. Woodward vers Dannock In Debt on Bond against Baron and Feme being made in her Widowhood with Condition that she her Heirs or Assigns keep Contracts and Covenants made between former Husband and his Lessee the Plaintiff and there was an Agreement that the Plaintiff should enjoy a Warren of the Demise of the former Husband and that he entred till put out by the Defendant Issue on the Agreement found pro Quer. Jones moved there was no Estate alledged in the former Husband in jure Uxoris whereby though the second Husband be assigned in Law yet he enters of his own wrong and not as claiming under her but per Windham it s not requisite that the Husband be Assignee of the Estate but her Assignee of Contract 1 Keble 348 512. Hall versus Creswel and his Wife Judgment pro Quer. A Covenant to save harmless from lawful Eviction the Defendant pleads performance the Plaintiff replies That J. S. took out a Writ of Hab. fac poss in B. I. debito modo exeunt ' and by vertue thereof entred and expelled him per Cur. debito modo is not sufficient without shewing particulars he ought at least to recite the Term of the Judgment but not the Title of him that evicted 1 Keble 379. Nicholas and Pullâ—n The Condition was That the Obligor should not enter nor claim a certain House the Defendant said he did not enter nor claim the Plaintiff replies he claimed no Plea he should say he came to the Land and claimed the Land and entred into the Land and nothing shall be traversed but the Claim 4 H. 7.13 not the Entry A Condition to discharge a Mesuage of all Incumbrances there one may plead generally that he did discharge it of all Incumbrances but if it be to discharge it of such a Lease he must shew how 1 Brownl 63. The Condition was That he shall suffer his Lessee for years to enjoy c. and that without the trouble of him or any other Person a Stranger enters per eigne Title the Condition is not broken for this word suffer is a passive and all the rest is to be referred to this but if any procurement or occasion of disturbance be by the Lessor his Executors or Assigns then he forfeits the Obligation 2 Ed. 4.2 b. 1 Rolls Abr. 425. Q. 1. A Man is bound to warrant Lands by Obligation in Action de Det port pacifice gavisus est is no Plea for it s but an Argument that he had warranted and it s but a fallible Argument for the Party may enjoy peaceably without having Warranty Dyer 42. b. 43. a. 2 Co. fol. 3. A Condition peaceably to enjoy from the 1st of Febr. usque Michaelmas-day Tithes paying half yearly during the Term and on default of payment the Defendant Lessor to be free from all Obligation to the Plaintiff he replies he assigned a Breach in non-payment of Rent at Michaelmas which is after the Term ended and so the Defendant demurs Also the substance of the Suit is quiet Enjoyment and therefore ought not to be taken by protestation sed per Cur. enjoyment need not be answered where it s defeasanced by payment of the Rent yet Judgment pro Def. 3 Keb. 594. Biggin and Bridge A Condition that he shall suffer his Lessee for years to enjoy his Lands during the Term and that without trouble of him or any other Person a Stranger enters per eigne Title per Cur. the Condition is not broken for that this word suffer is a passive and all the residue is to be referred to this but if any procurement or occasion of disturbance by the Lessor his Executors or Assigns then he hath forfeited the Obligation a Man is bound to permit Land to descend to his Son he need not aver that this had descended to him
construe â—e contrary to the express wâ—ds Vid. aâ—a 9 H. 7.20.17.22 Conditions ought to be construed according to the intent of the parties if it may constare and Conditions of Obligations are not broken unless the intent be broken A Condition to appear such a day in such a Term and the Obligoâ— appears at a day in the same Term before the day mentioned in the Condition at the Suit of another Man which is 〈◊〉 appearance in Law for all Suits which shall be commenced against him the same Term yet because this is but an appearance by fiction in Law and not an actual appearance at this day the Condition is broken for peradventure had he appeared actually special Bail might have been required 1 Roâ— Abr. 426. Sir Richard Bullers Case If the Lessee of an House covenant not to lease the Shop Yard or other things pertaining to the House to one that sells Coals and after he lets all the House to one that sells Coals he had broken the Condition for he had broken the intent 1 Rolls Abridg. 427. Bonner and Langley A Condition that the Lessee shall not do any wast and the Lesse suffers the House to fall for want of covering and repairing though this is not a Feasance but only a permission yet the Condition is broken 1 Rolls Abr. 428. Qu. The Condition of the Obligation was if the said R. â— shall not at any time or times be aiding or assisting to T. E in any Actions Suits Vexations c. The Plaintiff assigns a Breach that before the Obligation he brought Trespass against the said T. E. and R. T. and that he had Judgment against both and that after the making the Obligation T. E. and R. T. brought Error Per Cur. it is no Breach for it is not the intent noâ— reason he should be barred to defend himself by joyning with T. E. against the unjust proceedings of the Plaintiff And so if after Verdict the Plaintiff had released and yet took Judgment by Execution they two might have joyned in Audits Queâ—el Hobart p. 30â— 1 Rolls Abr. 429. Lamb and Tompson This is not properly 〈◊〉 Action but a Suit to discharge him of a â—oâ—tio Action wherein they must joy A Condition if the Plaintiff might quietly take and enjoy Woods sold and if the ground where upon it groweth be four Miles distant from Rye c. then c. The Defendant pleads the Plaintiff had quietly c. and that the said Land by the next high and usual way for Carriages is 4000 Paces from the Town of Rye Per Cur. the intent was that the Plaintiff by selling that Wood should not inour the danger of the Statute of 23 Eliz. c. 4. And it ought to be pleaded that it is every way distant four Miles from Rye and not not by usual ways and the four Miles by 4000 Paces is well 2 Leon. p. 113. Mingâ— and Barl. The Condition was that if the within bounden J. L. shall happen to dye without Issue of his Body lawfully to be begotten that then if the said J. L. by his last Will or otherwise in Writing shall in his Life time lawfully assure c. The Condition being made in benefit of the Obligor shall have Construction according to the intendment of the parties to be collected out of the words of the Condition and the intention of the parties was that a Conveyance should be made by the Obligor in his Life time by his Will or otherwise of the Lands Jones Rep. p. 180. Eaton and Laughter The Condition if the Obligor pay so much then the Obligation to be void or otherwise it shall be lawful for the Obligee quietly to enjoy such Lands The Defendant pleads quiet enjoyment The Plaintiff demurs for that the Condition depends on the Payment or Non-payment and that concerning the Land is idle Per Cur. Conditions are to be taken according to the intent of the parties if it may constare but as these words then to be void are placed here it cannot refer but to that which precedes and not to the Land which ensues Regula Words in the beginning or end of things refer to all but those in the middle refer ad media tantum as Lease for Life Remainder for Life rendring Rent this goes to both Estates but Lease for Life rendring Rent Remainder for Life aliter Siderfin p. 312. Ferres and Newton In the Condition it was recited that the Sheriff had constituted the Defendant Bailiff of an Hundred within the County If therefore the Defendant shall duly execute all Warrants to him directed then c. Warrants shall only be intended Warrants directed to him as Bayliff oâ— the Hundred Horton and Day cited 2 Sanders 414. And such only as are to be executed within the Hundred And the Plaintiff must shew the thing to be done was within the Hundred Allen p. 10. Sâ—angâ—on and Day mesme Case A Condition that his eldest Son shall marry the Daughter of the Obligee and the Son lye the second Son shall not marry her that was not the intent 27 H. 4.14 When a Man is bound to do or permit a thing he ought to do or permit all which depends upon this in the performance of the thing 11 H. 4. 25. b. 1 Rolls Abr. 422. Collateral things must be done or permitted a Covenant to levy a Fine it shall be at his Costs who levies it A Man is bound to carry my Corn it is no Plea for him to say he had no Cart for he is bound by implication to provide a Cart and all other necessaries for the Carriage So to mow my Grass he must find Instruments to cover my Hall he is bound to find necessary Stuff 16 H. 7.9 A Condition that J. S. shall have ingress into his House he ought to have a common entrance at the usual Door and shall not be put to enter in by a hole backward or by the Chimny nor may the other make a Ditch before the Door If a Man hath Right to a Chamber he must not be barred of his ingress and yet the Doors ought not to stand open at Midnight If I am bound to suffer J. S. to have a Way over my Land if I lock the Gates I have broken the Condition Latch p. 47. Climson and Pool A Condition is to be performed as near as may be The Condition is that J. S. and R. G. shall come in their proper persons before such a Feast to London and to bring two Sureties to be bound with them to the Plaintiff in the Suit contained in the Obligation then c. J. S. dyes yet R. G. must do this and although 〈◊〉 Condition be not performed in the whole yet 〈◊〉 he may perform this by any possibility he must do it 15 H. 7.2 4 H. 7.3 A Condition that he or his Heir shall surrender c. before such a day to the use of the Plaintiffs Executors his Heirs and Assigns c. The Defendant pleads the
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
good against the Heir tho the Executors have Assets he may have his Election 1 Anderson p. 7. Sir Ed. Capels Case Debt lies against the Heir of an Heir upon Obligation of the Ancestor to the 10th degree Noy 56. Dennyes Case The Obligee shall have a joint Action against all the Sons in Gavel-kind 11 H. 7.12 b. Debt against three Heirs in Gavel-kind the Defendant pleads C. one of the Heirs is within Age. The Heir of an Heir shall be chargable with an Obligation simul cum the immediate Heir and such Heir shall have his Age Moor n. 194. Hawtree and Auger 1 Anderson p. 10. n. 22. id Case If a Man bind himself and his Heirs in an Obligation and leaves Land at Common Law and Gavel-kind the Creditors must sue all the Heirs and if there be Land on the part of the Father and on the part of the Mother and both have Land by descent he shall have several Actions and Execution shall cease till he may take it against both so that the Construction of Law is stricter where the Heir is charged with Warranty real than when he is charged with a Chattel Hob. p. 25. Riens per descent pleaded and what shall be Assets J. S. by Will deviseth his Land to his Heir at 24. and if he die without Heir of his Body before 24. the Remainder over he attains 24. a Fee-simple descends for no Tail shall arise before his said Age which Tail shall never take effect 2 Leon. p. 11. Hind and Sir John Lion id Case 3 Leon. p. 70. The Father bound in Obligation and deviseth his Lands to his Wife till his Son comes to 21 years of Age the remainder to his Son in Fee and dies the Son shall be adjudged in by descent 2 Leon. 123. fol. 101. Bashpooles Case 3 Leon. p. 118. The Ancestor was seised in Fee and by his Will deviseth them to the Defendant being his Son and Heir and to his Heirs on Condition to pay his Debts within a year and if he failed his Executors shall sell he entred and paid no Debts the Executors after entred and sold It s not Assets in Heirs hands for though the Heir hath a Fee yet he hath it as a Purchaser being clogg'd with such a Condition Cro. M. 5 Car. p. 161. Gilpins Case Two things requisite to bind an Heir 1. Lien express 2. Lands by descent In Debt against an Heir he is charged as Heir and the Writ is in the debet and detinet and it s not in auter droit but taken as his proper Debt from 18 Ed. 2. till 7 H. 4. If the Executor had Assets the Heir was not chargeable but now the Law is changed in that Point if the Heir sell the Land before the Writ purchased he is discharged of the Debt in regard he is not to wait the Action of the Obligee Trusts descending shall be Assets by the Statute of Frauds and Perjuries so Lands of special Occupancy vid. Stat. The Defendant pleads his Father was seized in Fee and covenanted with J.S. c. to stand seized to the use of himself for Life the Remainder to the Defendant in Tail c. the Father had caused a Deed to be engrossed and delivered the Deed to a Scrivener to the use of J. D. and M. so as J. D. would agree to it J.D. died never having notice of the Deed Per Cur. the Father never covenanted because the Agreement of J. D. was a Condition precedent to the essence of the Deed and so no Deed to raise the Uses contra the Defendant Moor n. 426. Degoâ— and Rowes Case id Case 1 Leon. 152. n. 211. The Heir pleads riens per descent special Verdict find the Father was scised in Fee and enfeoft J. S. of the Mannor of P. excepted and reserved to the Feoffor for life two Acres only the Lands in question and after limited all to the Feoffees to the use of the Defendant in Tail Per Cur. the Lands do descend to the Son the Exception being void 2 Keb. p. 667 â—19 Wilson and Armorer Upon riens per descent pleaded special Verdict find M. seised in Fee de Saliva Anglice a Salt-pan died and his Son entred and was seised and the Defendant entred as Heir per possession fratris this is Assets by descent and such Heir per possession ' is chargable to the Debt of the Ancestor 3 Keb. Tr. 28 Car. 2. f. 659. Clinch and Butler The Heir pleads riens per descent the Defendant had levied a Fine but because no Deed of Uses was produced at Trial the Use was to the Conusor and his Heirs and so the Heir in by descent Mod. Rep. p. 2. Riens per descent pleaded Feoffment pleaded at the Trial it appeared to be fraudulent it need not be pleaded but may well be given in Evidence 5 Rep. 60. Gooches Case Debt vers l'Heir he may plead in Bar a Release made by the Obligee to the Executors and though the Deed belongs to another yet he must shew it forth for both of them are privy to the Testator Co. Lit. 232. a. Upon riens per descent pleaded it was found he had Assets in the Cinque-ports Judgment was general against the Defendants and as to the Moleties of the Lands in the Cinque-Ports the Plaintiff 〈◊〉 have a Certiorari to remove the Records into Chancery and thence by Mittimus to send to the Constable to make Execution 1 Anderson n. 65. p. 28. Hicker and Harrison vers Tirrel 3 Leon. p. 3. The Heir pleads riens per descent the Plaintiff replies he sued a former Writ vers l'heir and the Defendant was outlawed which was reversed and he freshly brought this Writ by journeys accompts and avers he had Assets the day of the first Writ purchased Hob. p. 248. Spray and Sherrat Cro. Jac. 589. id Case cited Debt vers l'heir the Defendant pleads his Ancestor died Intestate and that one J. S. had administred and had given the Plaintiff a Bond in full satisfaction of the former upon Issue joined it was found pro Def. If the Obligor had given this Bond it had not discharged the former but being given by the Administrator so that the Plaintiffs security is bettered and the Administrator chargable de bonis propriis it s a good discharge Mod. Rep. 225. Blith and Hill He pleads riens per descent but 20 Acres in D. in Com. Warwic The Plaintiff replies more by descent in S. viz. so many Acres and found pro Def. and a discontinuance in the Record of the Plea from Term P. to Term M. assigned for Error and per Cur. its Error and not deins Stat. 18 Eliz. because the Judgment was not founded on the Verdict but upon the Confession of the Defendant of Assets Yelv. p. 169. Hill 7 Jac. B. R. Molineux Case The Heir pleads the Obligor died Intestate and J. S. administred and he had given the Plaintiff another Bond in full satisfaction of the former vide Mod. Rep.
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
Executor the Release is void Aliter had the Obligation been joynt and several 1 Keb. 936. Scot and Littleton When two are joyntly bound in an Obligation tho' none of them is bound by himself yet none of them shall plead Non est factum for they had sealed and delivered it but he may plead in Abatement of the Writ and every of them is bound in the Entirety therefore if they two are sued and one appears and the other makes default and by process of Law he is Outlawed he which appeared shall be charged with the whole 5 Rep. 119. Whelpdale's Case The Defendant pleads he was bound simul cum R. G. to whom the Plaintiff had released all Actions the said first day of May that being the date in the Declaration The Plaintiff by Replication shewed that after the Obligation sealed by R. G. he released to him and after viz. the same day the Plaintiff sealed the Bond absque hoc quod simul tenetur cum R. G. The Plaintiff demurs this Release doth not discharge the Defendant And per Cur ' the Traverse is ill because R. G. was bound with the Defendant But because the Defendant had not taken advantage of it to shew it on Demurrer but confess'd it Judgment pro Querente Cro. Eliz. p. 161. Mannings and Townsend Against a Servant or Receiver GOdb sealed a Bill to E. T. thus Mem. that I have received of E. T. to the use of my Master c. the Sum of 40 l. to be paid at Michaelmass following E. T. brought an Action upon this Bill The Defendant demurs to the Declaration supposing that he receiving it as a Servant to anothers use he shall not be charged as a principal Debtor Per Cur ' The last Clause of the Bill is for payment of the Mony generally and doth not say to be repaid by his Master and so shall bind him that sealed it 1 Brownl Rep. 103. Talbot and Godbolt Of Actions and Suits Action brought before Cause of Action THe Writ was dated Mich. 30 Eliz. The Condition was if F. died before the Age of 21 years then if the Defendant caused an 100 l. to be paid to H. within three Months after the death of F. then c. F. died 30 Septemb. 30 Eliz. The Plaintiff hath no cause of Action as appeareth by the Record 1 Leon. 186. Woodshaw and Fulmerston Condition to pay an Annuity at Lady-day or within twenty days after Issue being joyned on a Collateral matter and found pro Quer ' It was moved in Arrest of Judgment that the Original was brought the 8th of April and he alledgeth the Breach to be Lady-day last past which was within the twenty days and so the Action brought before he had cause of Action Apparent fauâ— Cro. Eliz. 565. Blunden's Case After Verdict and Judgment it was assigned for Error that the Teste of the Original was before the day of payment in the Condition Judgment was reverst Mâ—râ— N. 776. Williams and Buckley Cro. Eliz. 325 mesme Case If there had been no Original it had been good after Verdict but this is not aided by Stat. 18 Eliz. Bill Filed before the Obligation dated the Record was amended Siderfin p. 252. Manning and Warren Joynder in Action Vid. supra sparsim Bond where suable BOnd made in Virginia in partibus transmarinis it may be sued in the Admiralty 2 Rol. Rep. 497. Tucker and Caps Vid. supra Et supra tit Pleading to the Jurisdiction Declarations PEr Stat. 6 R. 2. it s provided the Original shall not be laid in one County and the Declaration upon a Bond made in another County if so the Writ shall abate Therefore if one plead the Bond was made in another County than where it was alledged in the Declaration it s an ill plea Allen Hill 22 Car. p. 17. Shalmer and Slingsby In Debt on Bond the place of the making of the Obligation ought to be shewed in the Count but if the Defendant plead Duress or Acquittance by which he confesseth the Deed this makes the Count good 28 H. 8. Dyer 14. In Debt on Bond Annuity or Praecipe of a Rent-charge the place where the Deed bears date ought to be alledged Aliter of a Release of Lands or Rent for this is Executory upon the possession 5 H. 7.14 28 H. 8. Dyer 14. 14 H. 8.16 a. To be paid at his Mansion-house c. this may be paid at any place 3 Bulstr. 244. Meletine and Hall Surrey was in the Margent and the Defendant in the Declaration was named of D. in the County of Sussex and that he made that Obligation at D. in Geni prâ—d and on Non est factum it was tryed in Surrey and Error assigned because Com' praed ' refers to the County last named Non allocutur for it shall have relation to the County where the Action is brought and that named in the Margent For the other County mentioned was by way of Recital and so it shall not relate thereto Cro. Eliz. 481. Shirly and Sâ—câ— vile Time A Declaration upon an Obligation made ultimo die Augusti upon Oyer of the Bond it bore Date the 19th of August The Defendant pleaded Non est factum the Jury found it his Deed and the Plaintiff had Judgment For the Count was not of the date but of the making and the Jury have found the Deed Hobart p. 249. Thorp and Taylor A Bill Filed before the Obligation dated the Record was amended in B. R. Siderfin p. 252. Manning and Warren An Obligation made to accord with the Indenture of Covenants in point of Time with Averment there was no other Indenture 3 Keb. 117. Countess of Falmouth Form of the Declaration IN the King's Bench it is said Sigillo suo sigillat ' but in the Common Pleas it is Per scriptum suum Obligatorium concessit se teneri c. without saying Sigillo suo sigillat ' delivery is never alledged and when it 's said Per scriptum suum Obligatorium all necessary Circumstances are intended to concur viz. Sealing and Delivery otherwise it is not a Writing Obligatory Cro. Eliz. fo 737. Penson and Hodges 2 Keb. 630. Cubitt and Green Three bring Debt and declare that the Mony was not paid to them and say not Nec alicui eorâ—m yet it 's good For payment to one is payment to all the Obligees Noy p. 69. Warner's Case Debt of 300 l. upon two Obligations dated 20 December to pay 150 l. c. and averred he had not paid it and did not say Nor any part of it yet good Winch p. 72. Foster's Case The Plaintiff declared that the Defendant such a day concessit se teneri c. profert hic in Curia scriptum praedictum quod debitum praed ' c. The Defendant demands Oyer of the Condition and pleads payment after a Verdict Judgment pro Querente It was assigned for Error because he doth not declare according to the usual Course Quod per scriptum suum
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
other Debt 2 Keb. p. 804. Street and Buckner 1 Brownl p. 47. Lovelace's Case Stiles p. 339. Brock and Vernon More N. 1147. 2 Keb. p. 804. Street and Buckner Vid. pluis Litt. p. 58. Ene's Case 5 Rep. 44. Lord Cromwell's Case cited in Higgin's Case No though a Stranger give the Bond 1 Brownl p. 71. Hawes and Birch If Issue be joyned on the acceptance and the Plaintiff be Nonsuit Q. If this Plea be such a Confession of the Action as the Plaintiff shall have Judgment Hobart p. 68 69. B. R. Lovelace and Colket Randiff and Strutt The Defendant pleads that the Plaintiff after the day of Payment and before the Writ brought did accept of a Statute-Staple for the same Debt in full satisfaction of the Obligation It 's an ill Plea for a Statute is but an Obligation of Record and cannot drown another which is not of Record Sir R. Brainthwait's Case cited in 6 Rep. 44. b. Higgin 's Case Vid. Co. Lit. 212. b. 5 Rep. 117. b. contra Payment of a lesser Sum and acceptance in full satisfaction pleaded you may either traverse the payment or the Acceptance but it s more proper to joyn Issue upon the payment Stiles p. 239. M. 1650. Boys and Cranfield Condition to pay 10 l. to a Stranger by Michaelmass The Defendant pleads payment of a lesser Sum before the day to him The Plaintiff demurs the Plea is ill as to a Stranger 2 Keb. p. 628. P. 22 Car. 2. Chapman and Win. Debt pro 43 l. The Defendant pleads 39 l. paid before the day which the Plaintiff accepted in satisfaction The Plaintiff joyns Issue Non recopit in satisfactionem The Defendant Demurs it 's ill He should have said Non solvit 3 Keb. p. 28 Car. 2. fo 629. Percival and Colthowe The Defendant pleads the Condition was to pay a lesser Sum at a day and that before the day he paid in satisfaction Per Cur. It 's an ill Plea not having demanded Oyer of the Condition 3 Keb. p. 708. Mich. 28 Car. 2. Clatch The Defendant pleads That the Plaintiff before the day accepted a lesser Sum in full satisfaction of a greater It is a good plea but then he must plead he paid that lesser sum in full satisfaction and that the Plaintiff received it in full satisfaction Pinnel's Case 5 Rep. 117. More N. 847. Penny and Cote For the manner and tender of Payment it shall be directed by him that made it I am bound to pay you 10 l. at Westminster and you request me to pay you 5 l. at the day in York and you will accept it in full satisfaction of the whole 10 l. it s a good satisfaction of the whole 5 Rep. 117. Pinnel's Case Condition is for payment of 20 l. the Obligor at the time appointed cannot pay a lesser Sum in satisfaction of the whole But if the Obligee do receive part at the day and thereof make Acquittance under his Seal in full satisfaction of the whole its sufficient for the Deed amounteth to an Acquittance of the whole Co. Lit. 212. b. Pinnei's Case 5 Rep. 117. b. If the Obligor pay a lesser Sum either before the day or at another place than is limited by the Condition and the Obligee receive it this is a good Satisfaction Ibid. Not only things in possession may be given in Satisfaction but also if the Obligee accept a Statute in Satisfaction of the Mony it s a good Satisfaction Ibid. Obligor is bound to pay 100 Marks at a day and at the day the parties Account together and for that the Obligee did owe 20 l. to the Obligor the Sum is allowed and the residue of the 100 Marks paid This is a good satisfaction tho' the 20 l. was a chose in Action and no payment was made thereof but by way of Retainer or Discharge Co. Lit. 213 c. Condition to make assurance of Lands to such uses The Defendant pleads he made a Feoffment to other uses which the Plaintiff accepted Ill Plea 1 Brownl 60. Potter and Tompson Where the Condition is for payment of Mony if the Obligee accept an Horse c. in satisfaction its good But if the Condition were for the delivery of an Horse c. there tho' the Obligee accept Mony or other thing for the Horse c. it s no performance of the Condition So a Condition is to acknowledge a Recognizance of 20 l. c. if the Obligee accept 20 l. in satisfaction of the Condition yet the Condition is broken So of all other Collateral Conditions Co. Lit. 212. b. If a Condition be to pay Mony to a Stranger if the Stranger accepts an Horse or other Collateral thing in satisfaction it s no performance of the Condition for there the Condition must be strictly performed But if the Condition be that a Stranger shall pay to the Obligee a Sum of Mony the Obligee may receive an Horse in satisfaction Co. Lit. ibid. To Debt on Bond the Defendant pleads it was agreed before the Forfeiture of the Bond for 300 l. between the Plaintiff and divers other Creditors of the Defendants that the Defendant should assure divers Lands to be sold and the Mony to be paid and he assigned several sums of Mony to them which they accepted and avers in facto that he sold the Lands to them and made a letter of Attorny to them to receive the Sums of Mony The Plaintiff demurs because the Indenture sounds in the nature of a Covenant and if so it shall not be in satisfaction being in it self no satisfaction nor pleadable in satisfaction of that Debt Also admitting it had been a good satisfaction if performed yet part thereof not being performed it s no bar to this Action Cro. Car. 193. Simonds and Mendsworth A Concord or Verbal Agreement cannot discharge a Specialty As a Condition for the performance of Covenants in Articles of Agreement The Defendant pleads an Agreement between the Plaintiff and him that he should grant 5 l. per Annum for life in discharge which Grant he made and the Plaintiff accepted Judgment pro Querente being only a Verbal Agreement Cro. Jac. fo 649. Noys and Hopgood and so Cro. Eliz. pag. 697. Hayford and Andrews If the Defendant pleads before the day of payment the Plaintiff in respect of a Trespass made by his Beasts in the Defendants Lands gave him longer day It s no Plea for an Agreement by Parol cannot dispence with an Obligation Condition to pay 40 l. on Michaelmass-Eve The Defendant pleads Concord that if he gave him an Hawk and 20 l. at Michaelmass-day the Obligation should be void and avers he did so and the Plaintiff accepted it It s an ill Plea for it appeareth for Non-payment of the Mony at the day the Bond was forfeited and so became single which cannot be discharged by such naked Averment en fait of such Acceptance But Acceptance before the day had been a good Discharge Cro. Eliz. p. 46. Anonymus Condition
upon the Bond. Per Cur ' Duty extends to the Obligation and it shall be a discharge of it Cro. El. p. 370. Rotheram and Crawley Condition to pay 71. upon the Birth-day of the Child of J. L. which God should send after the date of the Bond. This is a contingent Debt and the Condition may not be discharged and a Possibility may not be released Qu. if the Obligation may be Yelv. p. 192 Neale and Sheffield Sir H. Stile and Tho. Brooke were joyntly and severally bound to W. Tully After the day of payment incurred Tho. Brooks makes his Will and makes Mary Brooks his Wife Executrix and dies and after William Tully makes his Will and by his Will releaseth unto Mary Brooks all the Debts which Thomas Brooks her Husband did owe to him at the time of his death Per Cur. a Will cannot release a thing created by Deed and so discharge Creditors Q. Stiles p. 286. Stile and Tully Sir H. Stile could have no Relief in Chancery G. was bound to R. with Condition to pay 100 l. but this was in trust to the use of M. W. during her life and after to G. P. G. P. may not release the Bond neither in Law nor Equity during the life of M. W. But had it been to his own sole benefit it had been good in Equity Lit. Rep. 144. Ganford's Case An Obligation to perform all Covenants in a Lease The Lessor releaseth to him all demands before any Covenant broken this is no release of the Obligation Lit. p. 87. Two are joyntly and severally bound in an Obligation if the Obligee releaseth to one of them both are discharged Co. Lit. 132. c. A release of all Actions by the Obligee before the day of payment he shall be barred of his Duty for ever for it is debitum in praesenti c. and the right of the Action is in him So by a release of all demands Co. Lit. 291. b. 292. b. The Defendant pleads that the Plaintiff by Indenture c. did Covenant that he would not sue the Bond before Michaelmass Judgment si actio Cur. pro Querente it s only a Covenant and shall not enure as a Release and is not to be pleaded in bar but the party is put to his Writ of Covenant Had it been a Covenant he would not sue at all it might have mounted to a Release Cro. Eliz. p. 352. Deux and Jeffreys 1 Anders 307. mesme Case But if the Defendant pleads that the Plaintiff by Indenture shew'd Covenanted that if he paid 100 l. at c. that then the Obligation should be void and avers he paid it it s a good Plea in bar and he shall not be put to his Writ of Covenant by circuity of Action Cro. Eliz. p. 623. Hodges and Smith An Obligation bears date the 1st of May and is delivered 20 days after and the Obligee makes a Release the 2d day of May and delivers this the same day this Release is no bar of the Obligation But in this case if the Obligee will bring his Action and count on an Obligation bearing date the 1st of May and doth not say that this was primo deliberat ' the 20th day the Defendant shall bar him by the Release for that the Release was made after the first day scilicet the second And the Plaintiff shall not reply and shew the first delivery of the Obligation was the 20th day for that this is a departure for he ought to have alledged this at the beginning and so it shall be taken that the Obligation was delivered according to the purport of the Obligation 5 H. 7.27 a. J. S. was bound that J. D. the Apprentice should make an account and pay Moneys and afterward the Obligee per Deed releaseth to the Servant and not to the Obligor If the Release were made before any Forfeiture the Obligation is saved and the Release may be pleaded but otherwise if after Forfeiture because an Obligation once forfeited cannot be saved by any Act or Release made or done to a Stranger 3 Leon. 45. Anonymus Pleadings Tender Uncore prist TEnder at the day and place of the Mony and the Plaintiff refused it and the Mony brought into Court The Plaintiff joyns Issue that there is no Tender and Refusal Verdict pro Def the Plaintiff hath lost his Mony for it is a Refusal on Record and the Defendant must have his Mony out of Court Stiles p. 388. M. 1653. Benikin and Herrick If the Obligor tender the Mony at the day and place and the Obligee refuseth it In debt sur ceo Oblig ' if the Defendant pleads Tender and Refusal he must also plead he is yet ready to pay it and tender the same in Court Aliter if it were to be paid to a Stranger But if one is bound in 200 Quarters of Wheat to deliver 100 Quarters if the Obligor tender at the day 100 Quarters he shall not plead Uncore prist for they are bona peritura but the Sum of Mony is not lost per Tender and Refusal because its a Duty and part of the Obligation Where the Condition is collateral to the Obligation that is not parcel of it there Tender and Refusal is a perpetual bar and he shall not be driven to plead Uncore prist As a man is bound in 100 l. to deliver Corn or Timber to perform Award as a man is bound by Award to pay 20 l. c. Co. Lit. 207. Anders p. 4. Pannel and Neal. Dyer 1 Eliz. 167. 9 Rep. 97. Peytoe's Case Vid. Doct. placitand ' p. 389 390 391. 1 Brownl 61. If a man make a single Bond or acknowledge a Statute or Recognizance and afterwards makes Defeazance to pay a lesser Sum at a day if the Obligor or Conizor tender it at the Day and the Obligee or Conizee refuse it he shall never have any remedy by Law to recover it because no parcel of the Sum contained in the Obligation or Statute the Defeazance being made at a time after Co. Lit. 207. Vid. More N. 114. Condition to perform Covenants by a Stranger one whereof was to pay 20 l. to the Obligee The Defendant saith The Stranger tendred and the other refused ne dit Uncore prist Bon Plea 27 H. 8.1 19 H. 8.12 If one be bound that a Stranger shall make an Obligation to the Obligee it sufficeth to say that the Stranger tendered this and the Obligee refused it without saying Uncore prist 10 H. 6.16 Condition was If a Stranger paid the Mony at T. then c. He pleaded a Tender by the Stranger and saith not Uncore prist per Cur. it s no bar but if they were joyntly bound it would be well enough 2 Keb. 178 Browne's Case If Mony be tendered and none ready to receive it and after he to whom the Mony is paid demands the Mony and the other refuseth an Action is brought and Tender pleaded yet the Defendant shall pay Damages from the time
Plea notwithstanding it was not shewed by what Process he had Execution because the Execution is on Record and shall be tried by the Record but if he paid the Monies in Pais to the Plaintiff and not in Court it is not an Execution of the Judgment Mo. N. 91. The Defendant pleads That the Plaintiff in the King's Court at Penwarth brought Debt upon this Obligation against T. who was bound with him in the said Bond joyntly and severally and recovered and had him in Execution and that the Gaoler voluntarily suffered him to go at large It was Demurred 1. Because he doth not shew the Court had power to hold Plea 2. The Plea is not good in substance for this Escape is no discharge of the Debt and therefore the Action lies against the other 5 Rep. 86. Blumfield's Case Cro. Jac. 531. Pendavis's Case Two bound joyntly and severally the Obligee brought Action against one and retraxit his Suit Q. If this be a Bar to sue the other Obligor But the Retraxit being pleaded in the Court of Record in Poele and it not being alledged that this Court had power to hold Plea per Patent or Prescription It is an ill Plea Jones p. 451. Dennâ— and Paine If a man be bound by an Obligation and afterwards promiseth to pay the Mony Assumpsit lies upon this Promise and if he recover all in Damages this shall be a Bar in Debt sur le Bond Co. Lit. p. 240. Ashbroke and Snape Venue Bond where Triable When the Obligation is made beyond Sea AN Obligation made beyond Sea may be sued here in England in what place the Plaintiff will as if it bears date at Bourdeaux in France it may be alledged to be made in quodam loco vocat ' Bourdeaux in France in Islington in the County of Middlesex and there it shall be tried for whether there be such a place as Islington or not is not Traversable Co. Lit. p. 261 b. One sues in the Admirals Court upon a Bond made in partibus Maritimis Virginiae and so he may if he will suppose the Contract in Virginia and if he will suppose the Contract in England he may sue here But if part of the Contract be here and part beyond Sea in Virginia or upon the Sea the Common Law shall have Jurisdiction 2 Rol. Rep. 492. Capp's Case Where part is to be done within the Realm and part out of the Realm the Plea ought to be Triable within the Realm Condition was for 40 l. to be paid within 14 days next after the Return of one Russel into England from the City of Venice The Defendant pleads in Bar that the said R. was not at Venice The Plaintiff demurs and it was Adjudged a naughty Plea 1 Brownl p. 49. Hales and Bell. Where the Condition contains Matter not Triable the Condition is void Mo. N. 201. The Issue was the Obligor was never at Rome but if the Matter is parcel Triable its good enough Molineux A Declaration upon a Bill dated in patoch ' Sanctae Mariae de Arcubus in Lond ' and upon Oyer it bore date at Hamborough It s triable here Latch p. 4 77 84. Ward and Kidson Cro. Jac. fo 76. Higham and Flower An Obligation sued in the Admiralty supposed to be made and delivered in Chancery Per Cur ' such a Bond may be sued here but being begun there we cannot prohibit them For the Plaintiffs Witnesses may be beyond Sea 3 Leon. p. 232. Delabreche's Case Debt on Obligation dated in Surry brought in London The Counsel pleaded Stat. 6 R. 2. cap. 2. that all Obligations ought to be sued in their proper Counties as dated and prayed Judgment of the Writ Per Cur ' its a frivolous Plea the Law being clear that unless the Obligation appear in the Count or on the Pleading to be out of the County although it bear date out it s not material where it s brought 1 Keb. 593. Pretty and Roberts Debt on a Bond of 60 l. for the payment of 30 l. 10 s. at Coventry Issue was taken that the Mony was paid at Coventry yet by consent of Parties and Paper on the Rule of Court Issue was found pro Querente at London and Judgment but it was reversed for this Error Consent of parties cannot change the Law Hobart p. 5. Crow and Edwards Recognizance taken before a Judge at Serjeants Inn in Fleetstreet London out of Term the Action was laid in London and not in Middlesex and good and the Scire facias shall be directed to the Sheriff of London but if it were taken in Court or generally it shall be in Middlesex Hob. p. 195 196. Hall and Winckfield Place of Payment in the Condition DEbt in Havering in Essex The Condition was for payment of 20 l. to the Plaintiff at his House at S. in Kent The Defendant pleads payment at the day c. Secundum formam effectum indorsamenti pradict ' and Error was assigned for that the Issue was tryed at Havering and not at S. in Kent Non allocatur For when a thing Issuable is alledged and no place this shall be tryed where the Action is brought and Secundum formam c. refers only to the Time and not to the Place For the Place is not material payment being made to the Obligee and it appears not but S. in Kent may be in the Jurisdiction of Havering Cro. Eliz. p. 105. Newe's Case Condition was if he pay 50 l. at his House at Lockington in the Parish of Kilmerston that then c. The Defendant pleads payment c. and the Venire issues of the Venue of Lockington and good for it shall be intended a Village in the Parish of Kilmerston for divers Villages may be in one Parish But if it had been at his House in Lockington in Kilmerston then it shall not be intended a Village but a place known Cro. Eliz. p. 117. Pike and Cottington 3 Leon. 193. Cro. Eliz. 804. Kerchever and Wood. Payment pleaded apud domum mansionaliâ— Rectoriae de M. Venue was de M. and good and M. shall be intended a Vill. Condition for the payment of 100 l. at his House in Cheapside the 21 of June next ensuing the date hereof The Defendant pleads that on the 21th of January then next following the date of the Condition of the Obligation aforesaid he paid the 100 l. at the Plaintiff's House in Cheapside Secundum formam c. It s good enough though the Condition hath no date for the Condition and Obligation are as but one Deed But because it s not alledged in what Parish or House the Ward is its Ill because of a Venue and Trial a Parish and Ward in London are as a Vill and Hamlet in other Countries Cro. Eliz. pag. 372. Forth and Harrison Condition was that the Defendant should pay so much Mony in an House of the Plaintiffs at Lincoln The Defendant pleads payment at Lincoln aforesaid and Issue c. The Venire was