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
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.
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
and to be inrolled within six months otherwise they will be void as to Purcâ—sors 27 Eliz. c. 4. But now by the Statute of Frauds and Perjuries the day of the month and year of the inrolment of the Recognizances shall be set down in the Margent of the Roll where the said Recognizances are acknowledged and no Recognizance shall bind any Lands c. in the hands of any Purchasor bona fide and for valuable consideration but from the time of such inrolment 29 Car. 2.1 By whom acknowledged and how BAron and Feme enter into a Statute or Recognizance this binds not the Wife albeit she survives her Husband 10 Rep. 43. 2 Inst 673. If an Infant acknowledge a Statute or Recognizance its voidable by Audita Querela during his minority but he cannot avoid it after his full age neither by Audita Querela nor Writ of Error because of Infancy only Moor n. 206. Yelv. 88. Randale and Wale Co. 2 Inst. 673. Dyer 132. and the way to avoid it must be by inspection which cannot be after his full age 1 Bulst 187 188. Infant acknowledgeth a Statute and was taken in Execution and at full Age he brought Audita Querela to avoid the Execution Per Cur. the Audita Querela shall abate he shall not avoid it it being matter of Record but if he will avoid it it must be during his minority Moor n. 196. Worsleys Case 1 Anderson 25. Noy p. 16. A Recognizance acknowledged by an Infant and he was inspected and adjudged to be within Age and thereupon had a Scire Fac. against the Conusee and upon a niâ—hil returned it was adjudged the Recognizance should be void and he be discharged whereupon Error was brought for that there ought to be two nichils returned for two nichils amount to a Garnishment and without Garnishment and Oyer of the Party to whom the Recognizance was made it ought not to be adjudged to be cancelled and for this cause it was reversed And now because the Conusor is at present of full Age and cannot have a new Writ of Audita Querela to be inspected it was moved that he may have a new Writ comprehending the first Inspection and the Judgment thereupon and shew that the first Judgment was only reversed for Error in the Proceedings and upon all the matter to be relieved and so it was done Cro. Jac. 59. Yelv. p. 88. Randale and Wale A Recognizance within the Statute 23 H. 8. c. 6. cannot be good except the Seal of the Party be to it Before whom taken THey may not be acknowledged before any other Persons but such as are appointed by the Statutes Other Recognizances besides those on 23 H. 8. may not be acknowledged before any but such as have Power ex Officio as the Judges of the Courts at Westminster or by special Commission to take them Dyer 220. Out of the Commonalty of London there shall be two Merchants chosen and sworn and before one or both of these Merchants the Recognizances may be taken Stat 14 Ed. 3.11 8 R. 2.4 The Recognizance upon the 23 H. 8. c. 6. in nature of a Statute-Staple is always to be acknowledged before the Chief Justice of the Kings Bench or Common Pleas in the Term time or in their absence out of Term before the Mayor of the Staple at Westminister and the Recorder of London All the Judges may out of Term take Recognizances in any part of England and if it be taken before the Chief Justice of the Common Pleas at Serjeants-Inn in Fleet-street out of Term its good Hob. 195. Every Court of Record of any note hath this Authority incident to it to take Recognizances for all things which concern the Jurisdiction of the Court and of all things which arise of or by reason of the Matters there depending so it is taken before the Mayor and Aldermen of London 1 Leon. 384. Holinshead and Kings Case The Custom of London to take Recognizances and the Form of the Declaration Cro. El. p. 186. Chamberlein and Thorp 1 Leon. 130 131. Where Actions to be brought on Statutes and Recognizances H. Brought Debt against W. and declared upon a Recognizance taken before Chief Justice Hobart at Serjeants-Inn in Fleet-street London out of Term and laid his Action in London whereupon the Defendant demurred The Question was whether the Action ought to be brought in Middlesex where the Recognizance is recorded or in London where it was acknowledged Now in this Case the inrolment of the Record that the Recognizance was taken before Hobert at the time and place aforesaid by which it was a Record ipso facto then and there and the inrolment is but a confirmation of the same Record and makes no change but because they both concur to the making it a perfect Record the Action may be brought in either County but by Hobert in London as the more worthy part of the Act and a Scire fac upon such a Recognizance shall be directed to the Sheriff of London and not of Middlesex but if the entry of the Record were general that the Recognizance was taken before Hobert it shall be understood in Court and then the Action shall be brought in Middlesex Hob. Rep. p. 195. Hall and Winkfield 2 Rolls Rep. 182. 1 Brownl p. 69. Allen Rep. 12. Andrews and Harborn In the Common Pleas its good both ways in B. R. it ought to be where the Recognizance is taken Stiles p. 9. Andrews Case Debt brought in the Common Bench on a Recognizance in London Cro. Eliz. Wilfords Case Statute Staple suable in the Kings Bench or Common Pleas as well as in Chancery Cro. El. p. 208. Clavel and Mallory Audita Querela in the Common Bench for that the Conusor was within Age at the time of the acknowledgment and well brought there mesme Case 1 Leon. 303. so in B. R. and the entry of the Inspection vide Cro. El. 208. A Recognizance taken by the Custom of London makes the Debt local vide 1 Leon. 130 131 284. Scire Facias SCire Facias in the Kings Bench on a Recognizance may not be general without shewing the time of the Recognizance and other particulars for it is but a Pocket Record therefore it is to shew what date it is for otherwise the Party may not know what Matter to plead and perhaps it is released or cancelled and a Man may not plead a Release after nul tiel Record Qu. 2 Siderfin p. 156 159. B. R. Alston and Body He that sueth forth a Scire fac in Chancery to defeat an Execution on a Statute-Staple shall find Surety to prosecute with effect If the Statute hath but one Seal it shall take effect as an Obligation Moor n. 520. 2 Rolls Abr. 149. Aiscue and Hollingsworth Cro. El. p. 494. contra A Recognizance is entire and being discharged in part is discharged in the whole but if the defeasance be to be paid in several Sums there an Acquittance of part is not a
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
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
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.
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
' 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
he is not bound to pay before Request 1 Rolls Abr. 438. Qu. A Condition to make assurance before the 10th of March and if the Obligee refuse the assurance and shall make Request to have 100 l. in satisfaction of it then if upon such Request within five Months after he pay it then c. he refused the assurance and ten years after he makes Request to have the 100 l. Per Cur. it is good and he may make Request during his Life Crook Eliz. p. 130. Boyton and Andrews Id. Case 1 Leon. p. 185. The Condition is to do a thing upon Request the Plaintiff must make Request to the person and not by Proclamation giving notice of the Request 1 Rolls Abr. 443. Gruit and Pinnel Request to c. Bridgm. Rep. 39. Allen and Wedgwood 1 Rolls Rep. 373. Crook Eliz. p. 62. Gallies Case Keilway 95. Place of Payment or Performance Where a Place is limited A Condition to pay Mony at London the Action laid in Shrewsbury 2 Leon. 37. Jay's Case If the Condition of an Obligation be to appear coram Justiciariis apud Westm he ought to appear in B. and not in B. R. Musgrave and Robinson 1 Rolls Abr. tit Condition 445. If a place of Payment be limited by the Condition he is not bound to pay this in any other place 17 E. 3.16 1 Rolls Abr. 445. If a place be limited by the Condition where it shall be performed the othere is not bound to receive this in another place If the Condition be to come to A. at Dale to aid him with his Counsel it is not performed if he tender his Counsel at the day at another place 1 Rolls Abridg. p. 446. In Debt on an Obligation to pay at the House of Y. in Woodstreet magna The Defendant pleads payment at the House of Y. generally and the Visne is from the Parish of Woodstreet generally Verdict and Judgment pro Quer. It is no Error it is only in Fact and should have been pleaded 1 Keb. 440. Ashburnham versus Braham The Condition was if he paid such a Sum of Mony at Newton Petrarch that then c. The Defendant pleads payment at the day at Newton praedict the Venire Fac. being at Newton only A Ven. de novo was awarded Crook Jac. p. 326. Dennis Case A Condition to pay 10 l. at S. such a day or 10 l. at S. such a day tender at D. the first day saves the Condition 22 Ed. 4.52 1 Rolls Abr. 444. A Condition to pay 10 l. at D. if the Obligee accept this at another place it 's a good performance sans fail 1 Rolls Abr. 456.11 Where no Place is limited IF no place be limited in the Condition for payment of the Mony he must tender the Mony to the person of the Obligee but if the Condition be to deliver 20 Quarters of Wheat or 20 Load of Timber c. The Obligor before the day must go to the Obligee and know where he will appoint to receive it and there it must be delivered If the Condition be to make a Feoffment it is sufficient to tender it upon the Land for there the Livery must pass Co. Lit. 210. b. If the Obligee be out of England he is not bound to seek him ibid. If a Man be bound to pay 20 l. at any time during his Life at a place certain the Obligor cannot tender the Mony at the place when he will for then the Obligee should be bound to a perpetual attendance but the Obligor must give the Obligee notice that at such a day he will pay the Mony and the Obligee must attend there to receive it for if the Obligor then and there tender the Mony he shall save the penalty of the Bond for ever Co. Lit. 211. a. But if the Obligor at at any time meet the Obligee at the place he may tender the Mony ibid. There is a difference between a place of payment limited in the Obligation and a place limited in the Condition of the Obligation For if I am bound to you in 20 l. to be paid at D. if I pay it to you at another place this shall not excuse me but if I am bound in 20 l. on Condition that I shall pay it you at D. if I pay this 20 l. at another place it is good if you receive it 11 H. 7.17 9 H. 7.20 b. Lord Cromwels Case If the Mony be paid at any other place and received before the day it is good Cook Lit. 211. a. A. is bound to B. that C. shall enfeoff D. such a day C. is bound to seek D. to give him notice and request him to be on the Land to receive the Feoffment ibid. Debt upon a Bond for payment of Mony there being no place named in the Obligation where it shall be paid The Defendant pleads the Plaintiff was beyond Sea at the day of payment and saith not uncore prist Per Cur. this a good cause of demurrer Siderfin p. 30. H. 12 13 Car. 2. B. R. Hobson and Rudge A Condition for a common Chirurgeon to instruct his Apprentice in his Trade and to keep him in domo sua propria servitio If he send him a Voyage to the East Indies to exercise his Trade it is a Forfeiture but he may send him to any place in England to a Patient Aliter if it were a Merchants Apprentice 1 Rolls Abr. tit Condition p. 445. Coventre and Boswel The Lessee is bound by an Obligation to pay the Rent the Lessee is not bound to seek the Lessor to tender it on the Land Hobart p. 8. Baker and Spain In Debt on an Obligation to pay at the House of one Y. in Woodstreet magna The Defendant pleads payment at the House of Y. generally and the Visne is of the Parish of Woodstreet generally Verdict pro Quer. and Judgment It is no Error it is only in Fact and should have been pleaded 1 Keble p. 440. Ashburnham versus Braham Debt in an inferior Court the Condition was for the payment of Mony at a time but no place was limited in the Condition for the payment thereof Judgment pro Quer. 'T was Error because there appears no place of payment So that by that it cannot appear whether the cause of Action lyeth within the Jurisdiction of the Court where the Action was brought or not therefore it should have been made appear by some part of the Record that the Mony was to be paid within the Jurisdiction of the Court which is not here done and therefore Judgment erroneous Stiles p. 2. Masterman's Case Judgment in the Court at Barnstaple upon an Obligation and assigns for Error that the Condition was to pay Mony at W. which is not within the Jurisdiction of the Court Per Rolls if it appear by the Declaration that the Mony was to be paid out of the Jurisdiction of the Court the Judgment is not good and it is not necessary to swear this Plea Stiles p. 225.
performance of Covenants the Breach ought to be more precise and particular than Actions of Covenants because of the Penalty yet if what is material and the substance of the Covenant be alledged it may suffice as a Covenant was that the Defendant a Bayliff should not let at large any Prisoner that should be arrested without Licence of the Plaintiff an Under-Gaoler The Breach was that the Defendant had let at large at Westminster sans licence c. such an one who was arrested but shews not the place or time of the Arrest Per Cur. he need not the Escape being the material part of the Covenant Siderfin H. 12 Car. 2. f. 30. Jenkins and Hancocks Debt by a Brewer on a Bond to perform Articles against his Clark one was that the Defendant should deliver such Ale and Beer weekly as should be delivered unto him to such Customers as he had in his Charge and to receive the Monies due for the same and should accompt with the Plaintiff every Saturday weekly for such Monies he should receive for Breach the Plaintiff assigns that the Defendant did not account with him for such Monies as he had received on Saturday the 25th c. Verdict pro Quer. Judgment was arrested for the Breach was uncertainly alledged because the Plaintiff doth not shew the Defendant had any Customers in his charge or who they were or that he had delivered Ale or Beer to them or received any Mony of them Stiles p. 473. Arnold and Floid A Covenant that he and his Executors and Assigns would repair a Mill and alledgeth that the Mill was defective in Reparations and the Defendant his Executors and Assigns did not repair it Def. demurs because he did not alledge that he not his Executors or Assigns did not repair it for if any of them did repair it the Action lies not and per Cur. it is naught But upon motion of the Court the Defendant waved his Demurrer and the Plaintiff amended Crook Eliz. p. 348. Cole and How If the breach of the Condition of an Obligation be ill assigned the Verdict shall not aid this Default Sanders 2 part 179. Hele and Wotton Kerby and Hansaker there cited Though the Action be well brought upon the Obligation yet when it appears the Condition was for performance of Covenants there can be no cause of Action without some Covenant broken and so shall not have Judgment though he hath a Verdict Hob. 14. in Sir Daniel Norton's Case Disability wherein the Obligor hath disabled himself to perform the Condition IF a day be limited to perform a Condition if the Obligor once disable himself to perform this although he be enabled afterwards before the day yet the Condition is broken as if the Condition be to enfeoff me before Michâ—mas if before the Feast he enfeoff another yet the Condition is broken 21 E. 4.55 The Condition is if he permit and suffer all his Lands c. to descend remain or revert to such an one his Son immediately after his decease without any Act c. The Obligor â—ells parcel of the same Lands though he purchase them again yet the Obligation is forfeited Benlow n. 34. p. 9. Sir A. Main by an Indenture demiseth Lands to Scot for 21 years and covenants at any time during the Life of Scot upon Surrender of his Lease to make a new Lease c. and an Obligation to reform the Covenants Sir A. Main pleads in Debt upon this Obligation that Scot did not surrender Scot replies that after the said Demise Sir A. M. had accepted a Fine sur omisance de droit come ceo and by the same Fine grant and renders the Land to the Conisee par 80 ans Defendant demurs Per Cur. 1. Sir A. M. by the Fine levied had disabled himself either to take a Surrender or to make a new Lease and so hath broken his Covenant 2. Though the first Act was to be done by Scot viz. the Surrender and Scot may surrender if the term for 80 years be the Interest of a future term yet Scot shall have his Action without making any Surrender for after Surrender Sir A. M. cannot make a new Lease which is the Effect of the Surrender he hath disabled himself 5 Rep. 20. b. Sir Anthony Mains Case Poph. 109. Benl n. 121 125. So if he disable himself to perform it in the same plight as Feoffee on Condition to re-enfeoff grants a Rent-Charge marries a Wife c. this is a forfeiture of the Condition 44 E. 3.9 b. Coke on Litt. But if the Feoffee on a Condition to re-eneoff a Stranger and after another recovers the Land against him by default yet until Execution sued the Condition is not broken 44 E. 3.9 b. One promiseth to perform an Award which is that he shall after deliver an Obligation to another in which he is bound to him without limiting any time when this shall be performed If he bring Debt on the Bond and recover and after deliver the Obligation yet this is not any performance of the Condition for he ought to deliver this as it was at the time of the Award made Tr. 15 Jac. B. R. 1 Rolls Abridg. 447. Nichlâ— and Thomas If no time is limited if the Obligor be once disabled he is perpetually disabled 21 E. 4.54 b. Vid. Cases del Disability 1 Rolls Abr. 447 448. Conditions to perform particular Covenants To make Assurance TO make such Assurance as Counsel shall advise A Condition to make to the Obligee or his Assigns so good a Lease as Counsel shall advise and the Obligee appoints him to make a Lease to J. S. he must do it for it is not as shall be advised by Counsel Per Coke if the words were he shall make as good a Lease as Counsel shall devise he ought to have brought a Lease drawn by the advise of Counsel 1 Rolls Abr. 424. 1 Rols Rep. 373. Allen and Wedgwood To make such Assurance c. as the Plaintiffs Counsel shall devise it is not sufficient to plead he made such Assurance but that the Plaintiffs Counsel devised such Assurance which he had made Crook Eliz. 393. in Hutchinson's Case One covenants to make such Assurance c. as the Plaintiffs Counsel shall advise and he pleads performance of Covenants he cannot afterwards say Consilium non dedit advisantentum in Specot and Sheer's Case Crook Eliz. 828. The Defendant covenants to assure such Lands by such Assurance as by the Counsel of the Plaintiff shall be devised the Breach assigned in this the Plaintiff caused such an Assurance to be drawn and ingrossed and put Wax to it and required the Defendant to execute it and he refused The Defendant demurs per Cur. it is no Breach because the Plaintiff himself devised it Crook Eliz. p. 297. More versus Roswel On Covenant that before such a day he would make sufficient Estate of Lands to such value to the Plaintiff for term of his Life as by the Plaintiffs Counsel
forfeited the Bond is so too upon Non-performance but being general to perform all Covenants and Conditions it binds only to such as are compulsory 3 Keb. 454 460. Toomes and Chandler On Covenant for Reparations THE Plaintiff assigns the Breach in one Covenant whereas the Plaintiff had leased Houses c. the Defendant did covenant to repair all the said Houses alia quam quae appunctuat forâ—t divelli pro Quâ—r and shewed that the Defendant had not repaired the Messuages to him demised and averred that the House in which the Breach of Covenant is assigned non fuit appunctuat divelli Per Cur. this Averment was superfluous for if the House in not repairing of which the Breach is assigned was appointed to be pulled down the same shall come in on the Defendants part to whose benefit it trencheth for such appointment doth discharge the Covenant as to that 1 Leon. fo 17. Sir John Smith's Case The Plaintiff assigned a Breach in Non-reparation The Defendant pleads the Plaintiff had acquiâ—d and discharged him of all Reparations The Plaintiff demured Per Cur. this is an acquittance and discharge of the Reparations for the time past as well as the time to come and amounts to as much as if he had released that Covenant but the Covenant being broken that discharge shall not take away the Action on the Obligation which was once forfeited 3 Leon. p. 69. Anonymus A Condition to perform Covenants in a Lease which recites a Lease of a Brew-house and a Mill in occupation of F. with Covenant to repair all the Premises The Defendant pleads general performance as to the Brewhouse and as to the Mill the Tenant did not attorn The Plaintiff demurred per Cur. this is no excuse though there be no Remedy for the Rent till Attornment yet it was the Defendants fault he did not take a Covenant that the Under tenant should attorn 1 â—eb 879. Lewin and Forth A Bond conditioned to deliver up an House repaired at the end of the Term. The Defendant pleads the Plaintiff agreed he should hold it for a longer time it is a good Plea though a Covenant is not discharged without a Deed wâ— it is to do any collateral Act 2. Keb. 99. Mâ— and Rainsborough A Condition to repair and sustain two Mâ—ssâ—ages at all times The Defendant pleads he had performed the Condition in all except as to one Kitchen which at the time of the Demise was so ruinous that he could not repair it but he pulled it down and rebuilt another c. this had been a good Plea in Action of Wast not here where he hath by his own Act tyed himself to a disadvantage 2 Leon. 189. Wood and Avery Pleadings on Bonds of Covenants Variance DEbt on Bond of Covenants After Verdict it was moved in Arrest of Judgment that the Defendants Plea was that praedictus Ed. did covenant that R. was seised whereas the Defendants name was Robert that did covenant this misrecital is not material because here is a good affirmative and the Bond if this be misrecited is single Contra if it had been an Action of Covenant or when the Indenture by prayer of the Defendant is entred in haeâ— verba 1 Keb. 126. Siderfin p. 49. Pegg and Waâ—ere Variance between the Indenture and the Declaration shall not stay Judgment after a Verdict Siderfin p. 49. Pegg and Waters The Covenant was that he will assure convey and assign a Lease The Defendant pleads performance The Plaintiff assigned the Breach quod non assuravit conveiavit transposuit Anglice set over and the Defendant pleaded quod assuravit conveiavit assignâ—t Anglice set over and the word transposuit is not in the Covenant nor in the pleading of the performance thereof It is Issue misjoyned 2 Leon. p. 116. n. 155. Grayâ— and Constable In a Debt on a Bond of performance J. and A. were named in the Bond but the Indentures as pleaded were only betwixt J. of the one part and the Defendant of the other but were re vera betwixt J. and A. on the one part and the Defendant on the other Per Cur. it is a variance and Judgment pro. Quer. 1 Keb. 127 167. Pavie and Hall Where Covenants are special they must be specially answered unto and particularly 2 Keb. 54. Herrick and Sanderson Against a negative or disjunctive Condition the Defendant must plead specially Debt on a Bond for performance of Covenants the Defendant sets forth the Covenants by a Testatum existit its ill this in a Plea in Bar or Debt on the Indenture is naught aliter in Covenant 2 Keble 54 79. Anslows Case Debt on Obligation conditioned for performance of Covenants in quadam Indentura bie in Curia prolat ' and in truth the Deed was not indented adjudged pro Quer. Cro. El. 472. Frampton and Stiles 5 Rep. 20. b. In Barnstaple Debt on Obligation to perform Articles the Defendant pleads performance this Bar is ill not setting forth the Indenture below The Plaintiff alledges non-payment to J. S. secundum formam Articulorum Per Cur. the general Replication is well enough without setting forth the Indenture but the Plaintiff by alledging the Breach hath waved the ill Bar 3 Keb. 605. Lâ— and Pigsly In Debt on Bond conditioned for performance of Covenants in an Indenture the Defendant pleads peformance generally this is not good unless he shew the Deed and plead this And it is not sufficient to shew the Deed when the Plaintiff replies and prays Oyer because the Plea of the Defendant ought to be special if any of the Covenants are in the negative and it doth not appear to the Court whether the Covenants are negative or affirmative until the Deed be shewed if the Party who will plead the Deed had it not he ought to move the Court for to have the Deed or a Copy Siderfin p. 50 97. Lewes and Ball. Vide plus postea Tit. Oyer The Defendant pleads there are no Covenants Per Cur. this being general of all is well cont if it were to perform any certain Covenant but the Party is estopt to say there is no Indenture 1 Keble 381. Brazier and Acton Mod. Rep. in Holloways Case yet 2 Keble 564. Smith and Yeoâ—ans cont but that was because of the shifting way of pleading The Condition was Whereas J. S. claimed to have a Lease for years of D. granted to him by W. if the said Defendant keep without damage the Plaintiff from all claims c. the Defendant pleads the said J. S. had not any such Lease per Cur. he is estopt to say so by the recital A Condition to perform Covenants The Defendant pleads the Indenture of W. S. and A. his Wife whereas in truth his Wife never sealed it the Plaintiff replies The Indenture shewn by the Defendant non fuit fait inter W. S. and Ann his Wife of the one part and the Plaintiff on the other and Issue the Jury found the Husband only sealed Per Cur.
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
Petty-Bag Office the Court of B. R. upon motion would not alter the Plea for if the Issue be joyned in the Petty-Bag you must try it Stiles p. 412. Turner and Trapes A Verdict on a Scire Fac. on a Recognisance in Chancery and Judgment pro Grimston Grimston brought a Latitat in the Kings Bench on the Recognisance The Defendant put in Bail and prayed to be discharged on common Bail because there being a Verdict on Scire Fac. no Latitat can be sued Per Hales no Latitat can be sued hanging the Scire Fac. for a Scire Fac. is an Action and may be so pleaded to the Debt to be depending But after Judgment entred Debt lieth thereon or upon the Recognisance alone and the Rule for special Bail was discharged 3 Keb. 221 229. Grimston and Wade Vid. Lit. Rep. p. 89 90. That a Scire Fac. is not an Action but an Execution Arguendo in Melvin and Reeves Case If a Man be bound in a Recognisance to pay 100 l. at five several days presently after the first day of payment he shall have Execution upon the Recognisance for that Sum and shall not tarry till the last be past for that it is in the Nature of several Judgments Co. Lit. fo 292. b. Aliter of a Bond. Meer Recognisances are not sealed but enrolled they must be In a Recognisance in Chancery the Process is Scire Fac. and this being returned with a Nihil another Scire Fac. which being so returned also he shall have a Judgment and may have a Levar but no Capias 8 Rep. 141. The Transcript of a Recognisance in Chancery came into the B. R. and was not allowed there to have a Scire Fac. on it 5 Eliz. Dyer 217. So in C. B. the Goods only which he had at the time of the Execution awarded will be subject to Execution Upon a Recognisance in Chancery Execution shall be of the Moiety of the Lands The Execution by this is by Scire Fac. Bail Recognizance The Nature of it THE Recognisance is conditional that is to say to render his Body to Prison if he were condemned or to pay the Condemnation Jones 138. The end of the Bail is not only to bring the Body but that he come subject to the Court according to the meaning of the Bail and there-Bail cannot render the Body of the Defendant after Writ of Error brought by him Qu. for the Entry in the discharge of the Bail must be that the Defendant reddidit se to the Court to be in Execution if the Plaintiff will which cannot be so in that Case Hob. p. 116. Wicksteads Case The Bail in the Common Bench is always in a Sum certain according to the debt or damages in the Writ but in the Kings Bench there is not any Sum mentioned but to pay whatever the Principal shall lose 1 Keb. 18. Cro. Jac. 645. Sir John Apesley's Case The Words of the Bail are conditional scilicet si contingeret praedictum Defendentem debita damna ill praefat Querenti minime solvere aut se prisonae non reddere c. 5 Rep. Hoe and Marshals Case 70. b. Special Bail by Recognisance was as the manner is that F. B. concesserunt uterque eorum concessit that the said debt and damages shall be levied upon them if the Defendant do not pay aut se prisonae Marr. doth not render Siderfin p. 339. Gee's Case The Recognisance in the disjunctive to render the Body to Prison or to pay c. By death the one becomes impossible and so shall excuse the other Jones p. 29. Winch p. 61. Sparrow and Sowgate Recognisance to have the Plaintiff in Chancery ad standum juri in hac parte and that the Plaintiff shall prosecute with Effect though he doth not shew the Plaintiff did not appear in Chancery at the day for the Condition here is parcel of the Recognisance which is one of the Conditions for the words in the beginning include all as well the Course of the Prosecution as the Effect of the Suit Yelv. p. 59. Cro. Jac. 69. Barnes and Worlych Form del Mainprise en Det Vid. Rast Entr. 177. b. Process Scire Fac. AFter Judgment a Cap. is awarded against the Defendant and upon a Non est inventus returned they awarded a Scire Fac. against the Bail Capias must be delivered to the Sheriff before a Testatum 2 Keb. 424. Robinson's Case A Latitat is taken against two one is taken and puts in Bail in Michaelmas Term and afterwards the other is taken and he puts in Bail in Hill Term it was prayed that the Bail of Michaelmas Term might be taken off the Filer of that Term and put upon the File of Hill Term for otherwise the Plaintiff cannot proceed against them joyntly upon Bail put in in several Terms and it was so done Noy p. 90. Scire Fac. against the Bail the Scire Fac. recited that Judgment was given against the Principal in Debt but mentions not therein that the Capias was awarded yet per Cur. it is good it may be omitted or recited Cro. Jac. 97. Justice Williams versus Vaughan Per Cur. If one be arrested in this Court and puts in Bail and after the Plaintiff recovers and the Defendant renders not himself according to Law in safeguard of his Bail the Plaintiff may at his Election take Execution either against the Principal or Bail But if he arrests the Bail tho he had not full satisfaction yet he shall never afterwards meddle with the Principal But if two be Bail and one is in Execution yet he may also take the other but if the Principal be in Execution he cannot take the Bail Cro. Jac. 320. Higgins Case When the Plaintiff in the Action hath Judgment he hath Election to sue a Scire Fac. against the Principal upon the Judgment or against the Bail and Principal joyntly upon the Recognisance Scire Fac. brought against three Bails upon a Recognisance acknowledged by them and the Principal jointly and severally and upon Demurrer the Writ was abated because this being founded upon a Record the Plaintiff ought to shew forth the variance from the Record as that one is dead Allen p. 21. Blackwel and Ashton By the Course of the Court a Scire Fac. against the Bail must have seven days between the Teste and the Return else all Proceedings after are void and one cannot be taken out returnable more and the other within less than seven days 1 Keb. 182. Gifford and Smith Bail in B. R. by John Bennet Esq and the Declaration was on a Recognisance by the Name of John Bennet Gent. and on Nul tiel Record of the Recognisance by J. B. Esq Per Cur. it is all one Name and the Court takes no notice of Heraldry here 1 Keb. 293. Bennet and Dean Scire Fac. on a single Recognisance of Bail was excepted to because returnable at a day certain and so agreed by per Cur. to be quasht and the party left
he was before the day arrested and imprisoned at the Suit of another and it was done 1 Bulstr 170. Scire Fac. against the Bail for Non-appearance of the Principal and it is not mentioned that Process was awarded against him but that it was prayed ei conceditur but it is not ideo raecept est Vicecomiti c. as it ought to be and although he that was Bail doth not afterwards appear this might be without Process and so nor good Cro. Eliz. p. 177. Herd and Burstow The Bail cannot render the Principal on the day of the Return of the second Scire Fac. though before the Sheriff hath actually made his Return and this is the Pleading of the Render that such a day ante retornum and after Nul tiel Record pleaded the Bail cannot take advantage of this Render 1 Keb. 450 456. Hooper versus the Manucaptors of Gibbon The Bail must render the Principal sitting the Court the day of the Return of the second Scire Fac. So it is on a Declaration by the by which must be sitting the Court the last day of the Term 1 Keb. 899. Nicholas and Stokes Judgment was given against the Principal and after a Scire Fac. is brought against the Bail who appeared and pleaded Nul tiel Record of the Judggiven against the Principal and on the day given for bringing in the Record the Principal rendred his Body in discharge of the Bail Qu. if he might March Rep. p. 154. pl. 223. The Condition of the Bail is that they render his Body indefinitely without limiting any time in certain when they shall do it or pay the condemnation and by some if they plead such a Dilatory Plea as this they have thereby waved the benefit of bringing in the Body and by this trick the Plaintiff should lose all his Costs of Suit which he had expended in the Suit against the Bail Judgment against the Principal in B. R. upon this Judgment a Writ of Error is brought in the Exchequer-Chamber according to the Statute of 27 H. 8. Hanging this Writ of Error the Principal reddidit se prisonae in exoneratione of his Bail the Bail may plead this in their discharge the Record of the Bail is a distinct Record of it self hanging the Writ of Error the Bail may bring in the Body of the Principal at any time when he will but he shall not be prayed in Execution before Judgment be affirmed or disaffirmed Before the Return of the Scire Fac. against the Bail the Principal renders himself and hanging the Writ of Error dies by this the Bail is discharged 3 Bulstr 341. Calf and Bingly Stiles and Seagar Hobbs and Doncaster cited there A Committitur though no Judgment must be entred hanging the Writ of Error but if Judgment be affirmed the Party must pray to have him in Execution Jones p. 128. mesme Case At any time before the Capias awarded if the Defendant dye this dischargeth the Bail for the Recognisance is conditional scilicet to render his Body to prison if he were condemned or to pay the Condemnation And before a Capias he is not bound to render his Body and therefore by the Act of God being impossible by death to render his Body the Bail is discharged And before Capias awarded the Principal is not bound to render himself for the Plaintiff had Election to take out Execution by Elegit or Fieri Fac. as well as Capias Jones Rep. p. 138. Calf and Bingly Pleading and Execution IN Scire Fac. or Recognisance against the Bail the Defendants Plea was venit dicit c. Per Cur. he must say venit in propria persona or per Attornatum and neither shall be intended especially this being after a Demurrer though general 2 Keb. p. 388. Bolton and Clark When Scire Fac. issues upon the Recognisance the Bail and Principal have two ways to defeat this either by tender of the Body of the Principal or by Plea and if at the Return they appear by Attorny they have chosen to avoid the Recognisance by Plea 2 Rolls Rep. 382. Scire Fac. against C. as Bail for D. and shews he had such a Term Judgment against D. and that he did neither render the Body nor satisfie the Debt The Defendant pleads D. came into Court and rendred his Body to the Fleet in Execution and in discharge c. and that the Plaintiff did refuse to take him in Execution and the Plaintiff denied yielding of the Body and so Issue Per Cur. it is not well pleaded for the yielding of the Body being an Act in Court and in discharge of his Bail which is of Record must be it self of Record and therefore ought to be concluded prout patet per Recordum Hobart p. 210. Welby and Canning In Scire Fac. against the Bail they plead reddidit se of the Principal before the Return of the second Scire Fac. viz. 11 May. The Plaintiff prays Oyer of the reddidit se and the Return which was the 6th of May. The Defendant demurs Judgment pro Quer. 2 Keb. 542. Turner and Lufton In Scire Fac. against Bail or Judgment in Debt on Oyer of the Judgment The Defendant demurred because Scire Fac. is of a Judgment or Bill in Michaelmas Term whereas the Bail appears to be in Hillary but the Bill being against the Defendant as in Custodia the Bail may be at any time and heretofore the Bail was never put in before appearance as now used But in B. C. Bail is precedent to the Original in Habeas Corpus and is conditional to appear to the Original in two Terms 3 Keb. 124. Segar and Brome Executor brought Scire Fac. againg the Bail and declares that the Plaintiff did recover and that afterwards the Plaintiff dyed the Defendant not brought in by them The Defendant pleads no Capias was sued out by the Testator a good Plea 3 Keb. 190. Manuel and Coltlowe The Plaintif cannot have a Capias without a Scire Fac. Qu. And if the Defendant principal dye before the return of the Capias the Bail are discharged but not so on death before a second Scire Fac. Yet Cro. Jac. p. 97. Justice Williams against Vaughan The Defendant in Scire Fac. pleaded the principal was dead before the Scire Fac. brought ill Plea because he alledgeth not when he dyed nor that he dyed before the Capias Awarded and if once on a Capias non est â—nventus is returned the Recognizance is forfeited because there was default in the party and though it be usual if the principal render his Body upon the first Scire Fac. to accept it yet that is of grace not of necessity therefore the death at the time of the Scire Fac. brought is not material if he were alive at the Capias returned Cro. Jac. p. 165. Timperly and Coleman If the principal dye before the Capias returned the Bail may be discharged but never where he dyeth after though before the return of
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.
Obligations and Conditions and of avoiding them An Award was that the party shall pay unto a Stranger or his Assigns 200 l. before such a day the Stranger befor the day dieth and B. takes Letters of Administration Per Cur. the Obligor shall pay the Mony to the Administrator for he is the Assignee and so if the Assignes had been left out 1 Leon. p. 316. Mony awarded to be paid to a Stranger if the Stranger will not accept of the Mony the Obligation is saved 3 Leon. 62. Norwich and Norwich If the Award be ill of your own shewing then you have no cause of Action and so you cannot have Judgment though the Defendants Bar be not good Stiles 136. Wood and Clemenee If the Plaintiff shews the Award but assigns no Breach he shall not have Judgment though he hath a Verdict for the Obligation is not for any Debt for this is guided by the Condition which goes in performance of a collateral thing viz. of an Award And though the Defendant had not answered to the Breach if it had been assigned yet the Court ought to be satisfied that the Plaintiff had cause to recover otherwise they shall not give Judgment and though the Verdict is found for the Plaintiff yet this fault in the Replication is matter of Substance not aided Yelv. p. 152 153. Barret and Fletcher An Obligation to perform a void Award is void Latch 207. 10 Rep. 131. b. If a Man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Mony he may have his Action of Debt for the Mony and declare upon the Award and afterwards he may have another Action upon the Obligation for not performing the Award per. Câ—r 1 Brownl Rep. 55. If one countermand the Authority of his Arbitrator as he may he shall forfeit his Obligation 8 Rep. 82. a. Vynior's Case A Condition is annexed to the Award as paying so much Rent yet Debt upon Bond lies 〈◊〉 Non-payment Cro. El. 211. Parsons and Frowd A Condition to stand to the Award of J. S. The Defendant pleaded the said J. S. had arbitrated that the Defendant should pay to the Plaintiff 10 l. and he said he had paid it to the Plaintiff Wise who had received it The Plaintiff demurs and Judgment pro Quer. Payment to the Wise not being good 1 Leon. 320. Frowd and Bâ— Recognisance to stand to the Arbitrament of A. and B. who awarded that Robins should have the Land yielding and paying 10 l. per ann Rent is behind The Plaintiff brought Debt The Defendant pleads the special matter and concludes Judgment if the Plaintiff shall have Execution against him Per Cur. it is ill for here is not any Execution of the same Debt but an Original Action of Debt port and he ought to conclude Judgment si actio These words yielding and paying 〈…〉 not a Condition for it s not knâ— to the Land by the Owner himself but by a Stranger sâ— the Arbitratoâ— But it is a good clause to make the same an Article of the Arbitâ—ment which the Parties are bound to perform upon the penalty of the Recognisance and this Rent shall not cease by Eviction of the Land 3 Leon. p. 58. Treshal and Robins An Award was that the Defendants Brother J. for whom the Defendant was bound to perform the Award should pay the Plaintiff 30 l. viz. 20 l. at the Annunciation and 10 l. at Michaelmas after and shewed that the said J. had payd the 20 l. and as to the 10 l. he pleaded that J. died before the Feast of M. The Plaintiff demurs Per Cur. the Bond is forfeited because the Sum awarded by the Arbitrament is now become a Duty as if the Condition of the Bond had been for payment of it 2 Leon. f. 155. Kingwel and Chapman Debt on Bond to stand to an Awards and the Defendant pleads Nil debet On Demurrer it was excepted the Action is grounded on the Award and therefore the Award ought to have been brought into Court which is not done for ought appears here Per Glyn It is not necessary to produce it in Court though he must plead the Award in Writing for the Action is not brought upon the Award but upon the Submission for the Award is but the Inducement and the Court hath nothing to do with the Award but to see whether it be in writing or not For a Deed that I confess must be produced in Court that the Court may judge whether it bind the party or not and you your selves have here set forth the Award in Pleading In all Cases where things cannot be demanded but by Deed the Deed must be produced but here is no Deed in this Case for an Arbitrament under Seal is no Deed it is but a Writing under Hand and Seal Stiles p. 455. Dod and Herbert Condition to stand to the Arbitrament of J. S. If the Defendant pleaded Nullum fec arbitriâ— the Plaintiff by Replication ought to shew the Arbitration in certain and assign a Breach for the Plea of the Defendant is so general it doth not offer any Issue therefore the Plaintiff in his Replication ought to lay a Breach or else there appears no cause of Action to the Court and the offer of the Issue comes from the Plaintiff Award is if J. pay to D. 10 l. then D. shall assure to J. the Mannor of Sale D. pleads in Debt upon this Bond J. paid him not 10 l. it is a good Replication for J. to say he had paid him 10 l. without saying over that J. D. had not assured the Mannor for the Plaintiff had given a direct Answer to the special matter alledged in Bar Yelv. 24. Baily and Taylor But this was after a Verdict Vid. 1 Sanders p. 103. Hayman and Gerrard The Plaintiff ought to assign a Breach in his Replication because the Defendants Plea Nul tiel award is general but if in such Case the Defendant plead a Release of all Demands after the Arbitrament by which he offers a special point in Issue there it sufficeth if the Plaintiff answer to the Release or other special matter alledged by the Defendant without assigning a Breach 1 Brownl Rep. 89 90. Condition to perform an Agreement already set down by J. S. The Defendant pleads no Agreement was made ill Plea Aliter had it been to perform all Agreements 1 Rolls Rep. 430. King and Perseval Condition to perform an Award they awarded the 24th of March the Defendant to pay at Mich. following 20 l. The Defendant pleads the Plaintiffs Release of all Actions and Demands made to him the 10th of Apr. Per Cur. the Release is no Baâ— of the Plaintiffs Action Aliter if had been a Debâ— or Duty presently Cro. Jac. 300. Tynan and Bridges In Debt on Bond to perform an Award Defendant pleads no Award Plaintiff sets it forth which was that the Defendant should pay Mony and they give mutual Releases to the time
Obligatorium concessit nor any Writing mentioned in the former part of the Declaration Sed non allocatur The Writings are produced and the Defendant by his Plea shews it 's an Obligation with Condition and it appears to the Court that the Plaintiff hath a just Debt and good cause to recover Cro. Car. 209. Sir William Courtney's Case In Debt sur Bond the Defendant confess'd the Action and because it 's not said in the Declaration Hic in Curia prolat ' it was adjudg'd a fault in Matter and Error Cro. Jac. 32. Dawbenny and Bannister Vid. le noveâ— Statute If a Bond be made to one and he doth not say in the Bond it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him tho' not expressed in the Bond 1 Brownl 72. Anonymus If any of the Bond be received it must be acknowledged in the Declaration Debt on two Obligations one was 100 l. the other 110 l. and he brought an Action generally of 200 l. upon these Obligations and acknowledgeth satisfaction of 10 l. but sheweth not of what Obligation it was that he acknowledgeth the payment of 10 l. it s no Error 1 Rols Rep. p. 423. Hale and Malyâ— vid. 3 Bulstr p. 244. Plaintiff declares upon a Statute Obligatory Solvendum upon Request and on Oyer it appears to be payable at a day certain Incurable fault Crook Jac. 316. Fox and Inkes Debt upon a Bill of 14 l. Solvendum 〈◊〉 cum 6 l. upon Account between them the Plaintiff only declares for 14 l. and good for that which comes after the Solvendum is void Crook Eliz. 537. Woodward and Parry Declaration is upon three several Obligations and upon Oyer of the several Conditions it appears one of the sums in the Condition was payable after the Bill exhibited Issue was joyned on Conditions performed and Verdict for the Plaintiff and intire Damages and upon Release of Costs and Damages Judgment was given for the two first Bonds only For tho' the Bill be an entire sum yet by the Court it appeareth they be as several Demands and Suits Hobart p. 178. Andrews and Delahay 1 Brown 68. Mesme Case One Declaration is naught After appearance the Plaintiff pleads de novo Noy p. 63. Rossiter and Bussey In B. R. the first Declaration was in Debt on Obligation 5 Feb. and the second was on an Obligation dated 15 Feb. and the pleading and Judgment was thereupon and held good for it was held as a Declaration without an Original which being after Verdict was ayded Crook Jac. p. 89. cited in Sir Michael Dormers Case Debt on Bond dated 13 Feb. The Defendant imparles and after a second Declaration was made and therein he declares on an Obligation dated 15 Feb. Defendant pleads non est factum it was amended and made according to the first Declaration for the first is the principal and the Plea always refers thereto Crook Jac. p. 105. Burrel versus Sir William Bowes Debt by Baron and Feme on an Obligation made to the Feme dum sola fuit and the Declaration is ad damnum ipsorum its good Stiles 134 Anonymus In Debt due upon a Bond or Contract there needs not a special Demand to be laid but licet saepius requisitus is sufficient Aliter if it were due by Arbitrement cum requisitus fuisset for then there must be a special demand Cro. Jac. 640. Waters and Bridges 1 Brownl 30. In inferior Court of Record 50 l. in figures is Error Stiles p. 165. Joson and Beale A thing that doth not intitle the Plaintiff to Action need not be contained in the Count. If the Condition be Endorsed or Subscribed it need not be contained in the Count but if it be contained before the in Witness then it ought to be contained in the Count. If a Man be bound to pay 10 l. when the Obligee carries 200 Load of Hay to his House there the Condition is precedent and it ought to be contained in the Count What comes after the in Witness be it a Proviso or Memorandum it may be as a Condition or Defesance and need not be contained in the Count 2 Brownl Rep. 97. Hammond and Jethro Be it known that J. C. bind me to R. in 40. l. to discharge and save harmless the said R. against W. Solvenâ— tali die c. there the Count is good generally without saying the Defendant had not saved harmless 22 Ed. 4.42 One ought to declare specially according to the Bill the Bill was to pay as I pay my other Creditors The Plaintiff declared generally that he was indebted to him in 5 l. Solvend ' upon request It s ill Cro. Eliz. 256. Bright and Metcalf Declaration for Outlandish Mony DEclares upon a Bill Obligatory wherein the Defendant was obliged to pay him â—00 Gilders of legal Mony Polonish viz ad valorem 220 l. legalis monetae Angliae and that the Defendant had not paid unto him the said 220 l. monetae Angliae nor the said 600 Gilders monetae Poloniae per quod Aâ—tiâ— accrevit c. Defendant pleaded non est factum and found pro Querente and the value of the Mony was enquired by the Jury viz. that the value of the 600 Gilders Polish was at the time of the Bill and now 220 l. The Action is well brought in the deâ—inâ— because he is to recover the value and the demand is not of any sum certain Cro. Jac. 617. Rands and Peck Cro. Eliz. 536. Bayshaw and Plaine Latch p. 4 77.8â— Wards Case The Court cannot compel the Plaintiff to set forth the Condition in his Declaration but till he doth it on Oyer demanded the Defendant shall not be compelled to plead Stiles 125. Sir Charles â—ot and Plunket On Oyer demanded unless the Plaintiff will shew the Bond the Court will set aside the Judgment as irregular 2 Keb. 275. Beadly and Beach When the Plaintiff counts on Bond it ought to remain in Court unless the Defendant after Oyer demanded suffer it to be delivered out then on non est factum the Court will not order it to remain there on prayer of the Defendant although anciently it hath been so 1 Keb. 486. Williams and Hulleâ— In Debt on Bond to deliver up Goods in a Schedule annexed per Cur. on demand of Oyer of the Condition they shall have also Oyer of the Schedule being all as one Dâ—ed but Oyer of Indenture for performance of Covenants shall not have Oyer of the Covenants but yet must set them forth and if he have no counterpart he may move the Court and obtain it 2 Keb. 4. Waterman and Adams Variance between the Obligation and Declaration DEbt on Bond the Plaintiff declares of a 1000 l. to be paid to him and the Defendant demands Oyer and he was bound to J. R. to be paid to J. K. to the use of J. R. The Defendant Demurs the Solvend ' to the Stranger is void and the Court seem'd
pro Querentâ— On non est factum pleaded it had been well enough so if this had been a Condition to pay Qu. if there be no sufficient words of Obligation to the Plaintiff Siderfin p. 290. 2 Keb. 81. Queen Mother versus Challoner Variance between the Obligation and Count shall not be shewed after imparlance 1 Brownl 95. Percher and Vaughan Variance in the Sum. THe Declaration was the Defendant stood bound to him in Septingent ' quinquagent ' libris and produced his Writing Obligatory and upon Oyer the words were Septuagint ' and quinquagint ' libris The Defendant pleads the Variance and demurs thereupon Per Cur. that is no cause to abate the Writ The Defendant then pleaded non est factum and the Jury found that the aforesaid Writing Obligatory de summa Septuagent ' quinquagint ' librarum per quod praedict W.W. per breve suum exegit de praefat ' T.P. infrascript septingent ' quinquagint ' libras was sealed c. sed utrum super tota materia c. the Court awarded the Plaintiff should recover the 750 l. and Costs Hobart 116. Walter and Piggots Case The Obligation was octigint ' and the Declaration octogint ' and Variance pleaded See the form of Pleading and entring Judgment Hobart p. 19. Fitzhughes Case Upon Oyer it appears no sum is mentioned in the Condition and the Declaration is to pay so much Per Coke it s a material Variance and the Obligation is single and no day being set down its payable on request and so the Declaration is good 2 Bulstr. 156. Dorrington and VValler Debt in York on Obligation of 13 l. Plaint was in plicito debiti 14 l. which variance was assigned for Error 2 Keb. 590. Vavisor against Bellingham Variance in the Names and Additions Misnomer MOlineax enters his Original in the Common-Bench against Marâ—ham in Debt on a Bond per name of J. Markham Alderman de D. and declares against him by the name of Markham de D. Esq and Judgment was given pro Quer. sur Verdict it was adjudged Error Yelv. p. 120. Molineax and Markham The Plaintiff in the Obligation was named J. Thorney de Fenton in Com' Not ' Armig ' and in the Declaration he was named J. Thorney Armig ' To de Fenton in Com' Noi ' were left out The Defendant demands Judgment of the Bill for this Variance Per Cur. respondeas ouster for this is no Variance to abate the Bill when he is well named is his proper Name and Sirname the addition is not material otherwise if it were of the part of the Defendant Cro. Eliz. p. 312. Thorney and Disney Declaration is on a Bond by Edmund Shephard for so it was signed and shews a Bond of Edward Shepard Noverint c. me Edwardum Shephard c. Upon non est factum the Jury found it the Deed of Edmund Shepard and Judgment was Arrested for they are distinct names And though it be subscribed by the name of Edmund yet that is no part of the Bond he ought to have brought his Action according to the Bond Cro. Jac. 640. Maby and Shepard Cro. Jac. 558. Watkins and Oliver Count quod praedict ' Jacobus per nomen Joâ—annis W. per quoddam scriptum c. upon Oyer the Defendant by the name of John W. fecit scriptum The Condition was if James W. paid The Defendant Demurs Per Cur. the Action lay not for John cannot be James Crook Eliz. 897. Feild and Winlowe W.S. is bound by the name of J. S. Action brought against him by the name of J. W. alias J. On non est factum adjudged the Plaintiff shall not recover the Action should be against J. as he is named in the Obligation 11 Eliz. Dyer 279. The Defendant pleaded variance between the Obligation and the Declaration for the Obligation was Randal and the Declaration was ad respondend ' Randulpho alias Randal Q. if Randulphus be Latin for Randal 3 Leon. p. 232. Babington's Case In the Writ he was named Son and Heir apparent and in the Declaration Son and Heir generally for this variance the Judgment was reversed Crook Eliz. 333. Annesby and Stokes When a Man appears and pleads he hath lost the advantage of Misnomer 2 Rolls Rep. 50. Sir Francis Fortescue's Case If he is named Saxex in the Original and Saxey in the alias dict' its variance for he ought to declare against him by the name he was at the time of Sealing the Bond and as he is named in the Condition and the alias dict' is for no other purpose but to make the name agree with the name in the Bond. If Action be brought against J. S. who at that time was Esquire and afterwards he is made a Knight there he shall declare against J. S. Armig. alias dict J. S. Mil. But in the first case it was no Error it being an easie Mistake 1 Bulstr 216. Saxey and Whemson Variance in time of payment of Entry THe Bill was Be it known c. to be paid at two payments that is to say 5 l. to be paid the 19th day of November which is the present of this Month and the other 5 l. the 10th day of December and the Bill was dated 17th Nov. 1604. The Plaintiff declares the Defendant did acknowledge himself to owe the Plaintiff 10 l. to be paid to the Plaintiff at two payments viz. 5 l. to be paid the 19th of November then next following and the other 5 l. to be paid the 10th day of December then next following On non est factum the Jury found the Special Matter The Question was Whether the Bill maintain the Count for the first payment and adjudg'd it did Brownl 1 Rep. 74. Prest and Cee The Count is of a Bond dated 1 May and the Entry is of 2 May on a Release pleaded and Issue thereon it 's good enough Aliter on non est factum 1 Keb. 426. Billage and Blake Oyer monstre des faits IF no Oyer be demanded it 's intended a single Bill 1 Keb. 937. Coxall and Sharp In Debt on Obligation the Defendant avers the Obligation was for security of certain Rent c. without demanding Oyer of the Condition it 's but as a single Bill and he cannot aver a Condition and so upon Demurrer adjudged pro Querente 1 Rol. Rep. 425. Baylee and Harrington The Law in Henry the Seventh's time was That the Defendant need not shew forth the Indenture of Covenants on Oyer demanded 6 H. 7.12 13. 9 H. 7.17 13 H. 7.18 The Defendant craves Oyer of the Obligation ei legitur and then of the Condition ei legitur And this was for performance of Covenants in an Indenture and after Oyer of the Condition the Entry on the Roll was That the Defendant prays Oyer of the Indenture mentioned in the Condition which was not brought into Court ei legitur The Plaintiff demurs for that the Defendant hath prayed Oyer of an Indenture which was not brought
762. Cantor and Hurtwel Bond to collect all the Amerciaments he Pleads he collected all and good being in the Affirmative aliter if the Condition be of matter of Record as to be Non-suit in all the Kings Courts 2 H. 7.15 a. 4 H. 7.12 b. Certainty THe express certainty regularly ought to be pleaded according to the express words of the Condition and to shew the performance 15 Eliz. Dyer 318. vid. Kel p. 60. Covenant in a Lease that he hath full Power and Authority to Demise the Land Lessee brought an Action on this Covenant it sufficeth him to say the Lessor had not full Power and lawful Authority and this Assignment of breach is good for he persues the words of the Covenant Negative and the Lessee is a stranger to the Lessors Title and therefore the Defendant ought to shew what Estate he had in this Land tempore dimissionis by which it may appear to the Court he had full Power and lawful Authority to Demise 9 Rep. 60 61. Bradshaws Case A Man is bound in the Copulative that he and his Assigns persolverent omnia onera He ought to Plead that he and his Assigns have done this 28 H. 8 Dyer 27. b. Condition to pay 10 l. within six Months after the Marriage of the Plaintiff the Defendant Pleads the Plaintiff was not Married the Plaintiff replies he was Married Defendant demurs because it doth not appear but the Defendant hath paid the 10 l. Adjudged for the Defendant he ought to answer the Condition Aliter after Verdict Siderfin p. 340. in Hayman and Gerards Case Though it be a good Plea regularly to the Condition of a Bond to persue the words of the Condition and to shew the performance Yet Coke said there was another Rule that he ought to Plead in certainty the time and place and manner of the performance of the Condition so as a certain Issue may be taken As Condition to pay 30 l. to H. S. J. S. and A. S. tam cito as they should come to the Age of 21 years The Defendant Pleads he paid those sums tam cito as they came to Age The Plaintiff Demurs because it s not shewed when they came of Age and the certain time of the payment It s an ill Plea So if the Condition be for performance of Legacies in such a Will he Pleads performance generally not shewing the Will nor what the Legacies are Cro. Jac. 359 360. Hally and Carpenter If I am bound to enfeoff you of all the Acres in such a Fine and I shew the Record of the Fine and averr that I have enfeofft you this is good But if it be of Acres in Middlesex he ought to shew the Acres in certain 28 H. 8. Dyer 28. Conditions to deliver all Writings concerning such Lands it s a good Plea to say generally that he has delivered all the Writings Doct. placitandi 62.4 H. 7.12 vid. pluis for Conditions performed pleaded generally and not shewing the certainty 12 H. 8.6 b. Sir John Cutts Case 12 H. 7.14 b. In pleading Negatively he ought to Traverse all the Condition as if a Man be bound to pay for so much Bread as the Defendant shall deliver at the common Hall whensoever he shall be requsted by C. he shall say he was not requested by C. to pay to him any Mony for any Bread delivered at the Common Hall c. 4 H. 7.12 Where the Party is bound with Condition to warrant Land the Defendant shall say expressly that he had warranted the Land for pacificè gavisus is no Plea 30 H. 8. Dyer 42. Condition was if neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said Lands by any indirect means but by due course of Law then c. The Defendant Pleads that neither J. S. nor J. B. nor J. G. did disturb the Plaintiff by any indirect means but by due course of Law Q. if it be not a Negative Pregnant i. e. a Negative which implies an Affirmative Not disturbed by any indirect means such a Plea had been good or not disturbed contra formam conditionis Adjurn ' If I am bound I shall not go out of Westminster Hall till night but tarry in the Hall till night or that I will not return to Serjants Iun the direct way but by St. Giles in an Action brought on that Bond I may plead in totidem verbis 2 Leon. p. 197. Dighton and Clark Where a certain Duty accrews by the Deed at the beginning as by a Covenant Bill or Obligation to pay Mony this ought to be avoided by a matter of as high a nature viz. by Deed vid. suprà tit ' Accord pleaded and 9 Rep. 78. Peytoes Case Sometimes matter un fair shall avoid an Obligation as well as a matter in Writing as to say the Feme was Covert de Baron c. 4 H. 7.15 The Defendant Pleads after the Mony became due he and the Plaintiff did by parol submit to an Award and sets forth the Award and performance per tender Per Cur. it s an ill Plea Submission by parol cannot discharge a Debt by Specialty Stiles 350. Ludding and White Coxal and Sharp 1 Keb. 937. Inter alia a Bond may be put in Arbitrament yet in such case the Arbitrament cannot be pleaded in Bar of the Obligation Q. if the party hath his remedy on the promise to perform the Arbitrament A Bond inter alia may be Arbitrated and mixt with other things And where the Award is good the party must resort to Action thereon 2 Keb. p. 734. Morris and Creech A Special Plea in Bar is always to be answered with a Special Replication in the point Whereas such a Mortgage was made of such Land to J. S. c. if therefore the said Land at the day be redeemed and discharged from all Tithes c. the Defendant Pleads the Close was not Mortgaged to J. S. The Plaintiff replies it was Mortgaged he need not alledge it was not redeemed J. S. is bound to Marry the Daughter of B. at Easter next J. S. Pleads in Bar she died before Easter it s a good Replication to say she was living at Easter day without saying he had not Married her Yelv. p. 24. Bayly and Taylor Vid. good Learning as to this Rule supra Titulo Assignment of a Breach In Monox and Warleys Case It was taken as a Rule that the Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment altho' the Issue be found for him as in Debt on Bond against A. and B. A. Pleads Non est factum B. Pleads the Release of the Plaintiff and it s found the Deed of A. and the Plaintiff hath Released to B. The Plaintiff shall never have Judgment for upon the Verdict it appears he hath no Cause of Action 2 Leon. p. 100. Pleas in Abatement IN Debt on Bond the Defendant demands
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