how non est factum may be pleaded thereon Delivery THE Defendant pleads non est factum The Jury found the Defendant caused the Obligation to be written and signed and sealed it and then laid it upon a Table and the Plaintiff came and took it per Curiam this was not the Defendants Deed without other Circumstances found by the Jury Had the Obligor cast it on the Table and said this will serve and the other took it it had been good Crook Eliz. p. 122 1 Leon. n. 193. Chamberlain and Staunton If an Obligation be delivered to another to the use of the Obligee and the same is tendred to him and he refuseth it then the Delivery hath lost its force and the Obligee can never after agree to it and therefore the Obligor may say it is not his Deed 5 Rep. p. 119. Whelpdales Case Obligation dated 3 Sept. 1 Jac. Condition was that if the Defendant 4 Sept. 2 Jac. pay 100 l. to J.S. at such a place and also save the Plaintiff harmless from any Suit c. The Defendant pleads true it was that he by his Obligation bearing date 3 Sept. 1 Jac. did become bound in 200 l. but further said that the said Obligation was not delivered as the Defendants Deed until the 17th day of Sept. 2 Jac. and then fuit primo deliberat Upon demurrer adjudged pro Quer. for the Bond mentioned in the Declaration is not answered For the Plaintiff shews the Defendant was obliged to him by his Obligation bearing date the same day c. which is laid to be a perfect Bond the same day as the Plaintiff counteth and then for the Defendant to come and say that it was first delivered 17 Sept. 2 Jac. which is a year after is no good argument but naught without taking a Traverse absque hoc that it was made the 3d of Sept. 1 Jac. 1 Brownl p. 104. Green and Eden Yelv. p. 138. id Case Debt on Bond 18 Car. 2. to pay 300 l. in six Months next after the Defendants Marriage The Defendant pleads primo deliberat 22 Car. 2. and that no Marriage was Post 22 Car. 2. hucusque per Curiam though there can be no primo deliberat before the day of the date yet after it may on Goddard's Case Coke But Condition to pay Mony three Months after the precedent Marriage is impossible and so the Condition single and good 3 Keb. 332. Newland and Dendy In Debt sur Bond which in truth was made to A. H. of London Merchant to the use of A. H. his Factor beyond Sea now Plaintiff the Defendant pleads that A.J. sealed and delivered a Bond to A. H. of London Merchant absque hoc that he sealed to A. H. the Plaintiff the Plaintiff demurs being but the general Issue Not guilty if Evidence be that its sealed to the use of the Plaintiff it is all one as if sealed and delivered to him 3 Keb. 738. Hawtry and White If the Defendant plead the Delivery after the Condition impossible to be performed then is the Obligation become single Yelv. p. 138. Green and Eden The day of the Delivery of a Deed is not traversable unless it be upon a special Cause as if one be bound in an Obligation dated primo die Octobris to pay 10 l. at the Feast of All-Saints next after the delivery of the Obligation and the Obligation is not delivered till the 2d day of November In Debt upon this Bond the Plaintiff declaring of a Deed delivered primo Octob. the Defendant pleads that it was primo deliberat 2 do Novemb and that he tendred the 10 l. at the Feast of All-Saints then next ensuing absque hoc that the Deed was delivered primo Octob. Jones Rep. 66. Bishop of Norwich versus Conrwallis If Evidence be that it was sealed to the use of the Plaintiff it s all one as if sealed and delivered to him 3 Keb. 739. in Hawtry's Case Delivery as in Escrow AN Obligation cannot be delivered as an Escrow unto the Obligee himself but it may be delivered to another to the use of the Obligee as an Escrow For the delivery of it to the Obligee himself and his receiving it makes it work as a Deed in the very instant of the delivery of it according to the effect of the Deed but being delivered to another to the use of the Obligee it cannot operate so because he is no party to the Deed nor can take any thing by it and doth but only take it as an Escrow and as an Instrument to deliver to the Obligee at such time and in such manner as the Obligor shall direct and if he deliver it otherwise the Obligor may plead non est factum Stiles Pr. Reg. 222. Therefore an Obligation may not be delivered as an Escrow to the party himself upon Condition to be his Deed upon special delivery for this is absolute being made to the party himself for delivery is sufficient without speaking words and when the words are contrary to the Act they are of no effect Cook Lit. 36. a. 9 Rep. 136 137. Thoroughgood's Case Vid. Hob. p. 246. Holford and Parker More n. 836. Williams and Green Though the Plea that he delivered it to the Plaintiff as an Escrow to be his Deed upon performance of Condition be not good yet being pleaded and replyed to and admitted for good and Issue being joyned and found false the Verdict is good and Judgment well given Vid. Crook Jac. 85. Blunden and Wood. If the Deed be delivered to the party himself first as his Deed upon Condition the Deed is absolute but when it is first delivered as an Escrow though to the party himself it is not his Deed till it be performed One brings Obligation to me and prays me to deliver it as my Deed and I say do such a thing and take it as my Deed otherwise not It is clear it is not my Deed until the thing performed here the Condition is precedent so as it was not his Deed until it was performed and therefore a Conditional Delivery may be averred sans writing but if once delivered as his Deed it cannot afterwards be defeated it the Condition be not in writing Quaer Crook Eliz. 835. Hawksland versus Gatchel contra Crook El. p. 884. Williams and Green The Defendant pleads the Writing was his and delivered to one W. as a Schedule until certain Conditions performed and then to deliver it to the Plaintiff ut scriptum and saith not ut factum yet per Curiam all is one in Construction of Law 2 Keb. 690 733. Twiford and Barnard The Defendant pleads it was delivered as an Escrow on future Condition and so non est factum hoc paratus est verificare The Plaintiff demurrs specially quia minus apte conclusit Per Curiam sic non est factum is a full Issue and the hoc paratus is ill Judment pro Quer. 2 Keb. 805. Goslin and Broad id p. 836. Edwards and Web. Of later
made for Re-payment of the principal although not expressed within the Bond it had been an usurious Contract 1 Leon. 36. Crook Jac. 252. Fountain and Grimes Debt sur Bond of an 100 l. dated 12 July with a Condition for the payment of 54 l. at the end of six Months The Defendant pleads the Statute 21 Jac. of Usury The Plaintiff replies he lent the 50 l. for one year and that the Defendant should pay 8 l. for the forbearance for a year and by the Scriveners mistake it was made payable at half a years end and he being illiterate and not knowing thereof accepted the said Bond. The Defendant rejoins the Lending was only for half a year and that he was feign to pay 8 l. for it for that time and traverseth that on the said 12th of July that he should forbear it for one year The Plaintiff demurred Bar ill because he saith not corrupte agreeat And per Cur. this Allegation may well be made against the words of the Condition for it is the shewing of the true Agreement which was according to Law And the Rejoynder is not good because he makes the day thereby to be parcel of the Issue which ought not to be but he ought to have traversed the Agreement only Crook Car. 501. Jones 396. Nevison and Whitly Debt sur Bill The Plaintiff declares the Defendant 20 Apr. 1633. by his Bill became bound to him in 7 l. to be paid 21 Apr. 1634. and if default payment was he granted to pay 3 s. 4 d. for every month it should be in arrear The Defendant pleads that upon the lending of the 7 l. to be paid at the end of the year it was corrupte agreed to pay 3 s. 4 d. ut ante Had it been well pleaded it had been good for it is not averred that the Agreement was to pay 3 s. 4. d. for every Month pro lucro interesse diem dando solutionis nor doth he aver the words of the Statute that ultra 8 l. per cent shall be taken for Usury Jones p. 409. Swales and Bateman In Debt sur Bond made at S. the Defendant pleads the same was made upon a corrupt agreement at another place the Plaintiff replied that it was made bona fide and traverseth the corrupt Contract Vâ—nue was from the place where the corrupt Contract was laid to be and good and not from both places 2 Bulstr p. 34. Stanton and Barton Not from the place where the Bond was made 1 Leon. p. 148 149. Crook Eliz. 195. Kinersly and Smart The Condition if he pay for 100 l. 20 l. at half a years end if J. S. be then living and if not then but a less Sum than the Principal it is usurious he averred the 20 l. amounted to above 10 l. per Cent. for by the same reason he may add 20 Lives 2 Anders 15. 5 Co. Rep. 70. b. Clayton's Case More n. 497. Crook Eliz. p. 642. Button and Downham The Defendant pleaded quod corrupte agreeat fuit quod quer ' corrupte recepit and on Issue on them found for the Defendant in both and good for one is not material More n. 750. Johnson and Clark A. lent B. an 100 l. for a year and took an Obligation for 10 l. Interest Mony being then at 10 l. per Cent. payable 5 l. half yearly Per Cur. it is not Usury deins Stat. More n. 842. Worley's Case Noy p. 171. Cro. Jac. 25. Debt upon an Obligation of 100 l. the Case was Warnes was indebted to Alder in 100 l. upon an usurious Contract and Alder was indebted to Ellis the Plaintiff in 100 l. the just Debt for which Warnes and Alder were bound to Ellis The Defendant pleads this Usury between him and Alder to avoid the Bond. The Plaintiff replies Alder was justly indebted to him 100 l. and the Defendant and Alder became bound for this Mony and that he was not privy to the Usury between Warnes and Alder and good and the usurious Contract between Warnes and Alder shall not prejudice the Plaintiff Yelv. p. 47. More n. 981. Crook Jac. 32. Ellis and Warnes 1 Brownl 85. A Condition to save the Plaintiff harmless from one Obligation wherein the Plaintiff was bound as Surety for the Defendant to J. S. The Defendant pleads that the Bond to J. S. was upon usurious Contract and pleads the Statute sic non damnificat it is no Plea for he ought to save his Surety harmless and it shall not be intended the Surety knew of the usurious Contract Crook Eliz. 643. Button and Downhan 3 Leon. 63. Potkin's Case Contra Crook Eliz. 588. Robinson and May 2 Leon. 166. Basset and Browns Case If there be an Agreement after the Forfeiture of a Recognisance and the second Defeasance is for more than 10 l. per Cent. according to the principal Debt yet it is not deins Stat. 13 Eliz. but before the Forfeiture it had been otherwise and it is not for forbearance of the first principal but of the penalty Noy p. 2. Hollingworth and Parkhurst If a Debt be brought on an Obligation and it is found for the Plaintiff now the Defendant shall not have Audita Querela upon a Surmise that it was an usurious Contract for he might have pleaded that Noy p. 123. Cook versus Wall Or if he be condemned on nil dicit Crook Eliz. p. 25. Fisher and Banks If an Executor pay an usurious Bond other Creditors may make a Devastavit of it per Hob. p. 167. The Condition was to pay the principal Debt at the end of the year with Interest that should be then due It was a Quaere if any Interest should be paid and not resolved See there Noy's Argument of the odious Sin of Usury 2 Rolls Rep. p. 239 240. Sanderson and Warner The Defendant pleaded the Statute of Usury to a Bond and sheweth that a Ship went to fish in Newfoundland and that the Plaintiff delivered 50 l. to the Defendant to pay 60 l. on the Return of the Ship to Dartmouth and if the Ship never returned he should pay nothing it is not Usury Cro. Jac. p. 208. Sharply versus Hurrel 1 Brownl Rep. p. 52. The Defendant pleads the Statute of Usury made 6 Febr. 13 Eliz. whereas the Parliament began 2 Febr. 15 El. and that the Obligation was taken by Usury The Plaintiff replies it was not made for Usury contra formam Statuti modo forma praed and at Issue found for the Plaintiff yet a Repleader was awarded after Verdict for the Court held no Judgment could be given for the Plaintiff as well knowing there was no such Statute Cro. El. p. 245. Love versus Wotton Debt on an Obligation with a Condition of Bottomree to pay 130 l. when the Ship should return from Norwey The Defendant after Oyer pleads corrupt Agreement for lending 50 l. to pay according to the Condition The Plaintiff demurred Per Cur. it is not Usury 1 Keb. 711. Appleton versus Bryan In Debt
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
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.
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
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
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
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
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.
Debt upon Bond the Defendant pleads the Intestate in her Life by the name of Ellen released c. The Plaintiff replied non est factum Elianorae which was found so by Verdict and well More n. 1192. Panton and Chowles Obligation by the name of John and the Condition by the name of James the Declaration is that James per nomen Joh'is became bound it is not good for John cannot be James Crook El. p. 897. Field and Winlow The Plaintiff declared in Debt against Edmond Watkins alias Edward Watkins that he by the name of Edmund was bound c. The Condition was that if Roger W. paid 50 l. to the Plaintiff at a day then c. The Defendant pleads Payment by Roger and Issue and Verdict pro Quer ' and Judgment But it was reversed by Error for Edward is bound and Edmund is sued which cannot be intended one and the same person and no averment can help it for one cannot have two Christian Names and here is no Estoppel Aliter if the Condition had been if Edward W. pay the 50 l. and the Verdict found for the Plaintiff then the Verdict should make it an Estoppel Crook Jac. 558. Watkins and Oliver Debt on Bond brought against him by the name of Jacob he pleads he was called and known by the name of Jaacob and not Jacob it was over-ruled Mod. Rep. 107. Aboabs Who are bound though not named IF a Man bind himself his Executors are bound though not named not so of the Heir for the Executor doth more actually represent the person of the Testator Cook Lit. fo 209. The Ordinary shall be bound if he administers 2 Rolls Abr. 149. In respect of Obligees To whom Obligations may be made and the Effect To Baron and Feme A. Makes a Bond to Baron and Feme Baron dies Feme administers and brings Debt upon the Obligation as Administratrix she dies before Judgment and her Executor brought Debt upon that Obligation It lies not it was in her a sufficient Election and Waver and that personal duty being a chose in action may well lie in jointure between Baron and Feme Aliter of other persons Noy p. 149. Norton and Glover To Feme Covert IF Bond be made to a Feme Covert and the Husband disagree the Obligor may plead n◠est factum For by his disagreement the Obligation is no Deed 10 Rep. 119. Whelpdale's Case To Feme sole THE Husband after she marries must join with her in the Suit for if cause of Action arise before Coverture though but Trespass where damages are only recoverable they must joyn 1 Keb. 440. Hardies Case To Alien AN Alien born under the Obedience of an Enemy may have Debt on Bond for personal things More n. 852. Walford and Marsham To Corporations A Bishop Parson Vicar Master of an Hospital or other sole Body politick cannot take a Recognisance or Obligation but only to their private and not in their politick Capacity and therefore no Chattel either in Action or Possession shall go in Succession but the Executors or Administrators of the Bishop Parson c. shall have them This is regularly true except a Custom enable it to go in Succession as in the Case of the Chamberlain of London for Orphanage Mony there it goes to the Successor But in case of a Corporation aggregate of many as Dean and Chapter Major and Comminalty c. it goes to the Successor for they in Judgment of Law never die 4 Rep. 65. Fullwood's Case Crook Eliz. p. 480. Bird and Wilsford A Man cannot bind himself to two severally in a Bond but a Man may covenant with two severally for that sounds in damages March Rep. p. 103. I shall in the next place come to the Dates of Obligations and though it may be good without a Date yet when it is dated there is good Learning in our Books concerning the Juries finding pleading c. Date OBligation is good though it wants a Date or hath a false or impossible Date 2 Rep. Goddard's Case Declaration sur Obligation made ultimo die Augusti anno c. upon Oyer of the Bond it bore date 19 Aug. an c. The Defendant pleads non est factum Jury found it his Deed. Judgment pro Quer ' For the Count was not of the date but of the making and the Jury have found the Deed Hob. p. 249. Thorp and Taylor One brought Debt and declares the Defendant 4 Apr. 4 Eliz. made a Bond bearing date the same day and year and the Defendant pleads non est factum and it s found that the Deed was delivered at another day before or after than the Plaintiff hath declared yet Judgment shall be for the Plaintiff for the date is not material and the Defendant cannot be twice charged 2 Rep. 5. Goddard's Case If it be a mistaken date as to the King's Reign or no King's Reign be in or an impossible date or if it want a date its good and the party may surmise a date in the Declaration and it is good and the party ought to answer to the Deed and not to the Date Yelv. 194. Dobson and Keyes Crook Jac. 261. id Case The Obligee cannot alledge the Delivery before the Date yet the Jury may find the truth and tho there wants in cujus rei Testimonium yet its good 2 Rep. Goddard's Case Obligation bears date in France it may be sued in England and it shall be alledged to be at Islington in France for it s not traversable whether there be such a place as Islington or not Cook Lit. 261. b. Latch p. 77. Ward 's Case The Defendant pleads quod factum prae◠was made and delivered sans Date and afterwards the Plaintiff put a Date thereto and so not his Deed ill Plea upon demurrer for the Defendant first confesseth it to be his deed by saying factum praed and then concludes its not his deed Crook Eliz. 〈◊〉 800. Cospes versus Turner In det sur obligation fait 1 Novemb. 12 Jac. the Defendant pleads in Bart an Indenture of Defeasance and shews not the date of it but by these words iisdem die anno referring this to the Plea of the Defendant viz. to the date of the Obligation alledged in the Count the Bar is insufficient for the uncertainty for this shall be intended to bear date before the Obligation for that every deed shall be taken most strongly against him that pleads it Doct. pl. 29. If a Man plead factum suum dat primo Jan. deliberat quarto Jan. he ought to say primo deliberat 4to die Jan. otherwise the word suum imports that this was his deed the first day of Januar. per Dyer 5 Eliz. 221. b. I shall now treat of the delivery of an Obligations being an Essential part or circumstance required thereto and what amounts to a good delivery to the party himself and where the delivery of a deed is traversable and of the Delivery as an Escrow and
upon an Obligation after Oyer the Defendant pleaded an usurious Contract to receive more Interest than due to which the Plaintiff demurred because it is not said that at the time of making the Bond it was corruptly agreed and the other doth but incur the penalty of the Statute but doth not avoid the Security which the Court agreed 2 Keb. 525. Farrel versus Shaw The Defendant pleads an usurious Agreement that the Plaintiff lent the Defendant 10 l. and if the Ship return to pay him 3 l. The Plaintiff demurred Per Cur. this is good and bare bottomâ—â—â— 3 Keb. 62. Cham and Taylor The Defendant pleads Stat. 12 Car. 2. c. 13. and said the Contract was usurious but per Cur. being made after the Bond forfeited to receive Interest according to the penalty which was double the principal it avoids not the Obligation which was good at first but only subjected the taker to other Penalties 3 Keble 142. Redly and Manning The Defendant pleads 12 Car. 2. cap. to which the Plaintiff demurred because in recital of the Statute the word made is left out and Plea ill 3 Keble p. 618. Gilmore and Isles Debt on Obligation to pay 100 l. on Marriage of the Daughter and if either Plantiff or Defendant die before then nothing the Defendant pleads that of Usury and that this was for the Loan of 30 l. before delivered the Plaintiff demurred Per Cur. this is plain Bottom-ree 3 Keb. p. 304. Long and Wharton The Condition was If such a Ship go to Surat in the East Indies and return safe to London c. or if the Owner or the Goods return safe c. that the Defendant shall pay to the Plaintiff the Principal and 40 l. for every 100 l. but if the Ship perish by unavoidable casualty of Sea Fire or Enemies then the Plaintiff to have nothing Per Cur. this a good Bottomree Contract and not Usury and Bridgman took the difference between a Bargain and a Loan for where there is a Bargain de plano as here and the Principal hazarded this is not within the Statute of Usury aliter of a Loan which is intended where the Principal is not hazarded Siderfin p. 27. Soame and Green Cro. Jac. 252. Fountain and Grimes There are two Clauses in the Statute of Usury 12 Car. 2. If there be a corrupt Agreement at the time of the lending the Mony then the Bond and all Assurances are void but if the Agreement be good and afterwards he receives more than he ought then he forfeits the treble value Per Twisden Mod. Rep. 69. 1 Sanders p. 294. Ferral and Shaen Knight and Baronet and the Pleadings Debt on Bond 24 May 19 Car. 2. The Defendant prays Oyer of the Condition which is for 300 l. to be paid 25 Febr. 20 Car. 2. and upon Oyer the Defendant pleads in Bar quod post confection ' scripti obligatorii praed ' scil 10 May 20 Car. 2. The Plaintiff corruptive recepit de Defendente 30 l. pro differendo diem solutionis praed ' 300 l. pro uno anno integro videlicet c. quod est ultra ratam 6 l. per cent per annum contra formam Statuti per quod script ' obligator ' praed ' vacuum devenit hoc c. The Plaintiff demurs Plea is not good for the new Statute of Usury 12 Car. 2. cap. 13. saith That all Bonds for payment of any Mony for any Usury and here the Bond is not for payment of Monies upon Usury for it might be for a just Debt and the usurious Contract after shall not hurt it but its punishable 1 Sanders page 274. Ferrall and Shaen If in truth the Contract be usurious against the Statute no Colour nor shew of Words will serve but the Party may shew the same and shall not be concluded or estopped by any Deed or any other Matter whatsoever for the Statute giveth averment in such Case 5 Rep. 69. b. Burtons Case 5 Rep. 70. Claytons Case uncertain and yet Usurious and Burtons Case Moor n. 497. id Case The Defendant pleaded the Statute of Usury alledging that agreeatum fuit that the Plaintiff should have so much Mony pro donatione diei solutionis the Plaintiff traversed absque hoc quod agreeat ' fuit and found for the Plaintiff it was moved in Arrest of Judgment that the word corrupte was not pleaded in the Bar resolved the Bar was made good by the Replication and the Declaration being good Judgment pro Quer. Moor n. 624. Rogers and Jackson Where per Twisden the Contract was not Usurious but a Purchase of an Annuity for three years Siderfin p. 182. Rowe and Bellass Against Stat. 23 H. 6. cap. 10. Sheriffs Bonds void THE intent and reason of this Statute This Statute hath three notable Branches 1. Commandment and Authority to the Sheriff to let to bail such Persons as are mainpernable so Coroners Stewards of Franchises Bailiffs Keepers of Prisons and this is in affirmance of the Common Law 2. A restraining Branch that they shall not let to bail such Persons as be in their Ward by Condemnation Execution Capias Utlegatum or Excommunication Surety of the Peace and such as shall be committed by special commandment of the Justices and Vagabonds this is in affirmance of the Common Law 3. The third is to make Obligations taken in any other form than the Statute limits to be void That no Sheriff nor any of his Officers and Ministers aforesaid shall take or cause to be taken or make any Obligation for any Cause aforesaid or by colour of their Office but only to themselves of any Person nor by any Person which shall be in their Ward by the course of the Law but by the Name of their Office and upon Condition written that the said Prisoners shall appear at the day contained in the said Writ Bill or Warrant and in such places as the said Bill c. shall require and any Obligation taken by them in other form shall be void The design of this Statute is to provide against the Extortion of Sheriffs Plow Dive and Manninghams Case Explication del Statute THese words for any cause aforesaid refer to all that went before as well those contained in the Exception as in the first Branch therefore a Bond taken of a Man in Execution is void by this Statute and the Surety may plead this and the words colore officii make it void for he was taken by him in Execution as Sheriff and he lets him to bail which is not mainpernable Plow 69 80. Dive and Manningham This is a particular Law and ought to be pleaded Dive and Manninghams Case Plowd Parker and Weblyes Case in Siderfin and Siderfin p. 24. Allen and Robinsons Case Hobart p. 13. contra 3 Keble 320 361. Oakes and Cell The Statute is not as in Print that the Sheriff nor any de ses but any des Officers or Ministers of Justice 3 Keble 71. Munday and Frogat A Covenant is
must be barred Stiles p. 93. Anonymus If an Obligation be made the 17th day of November Anno 12 Jac. And the Condition is to pay 5 l. the 21st day of November ensuing and 5 l. the 20th day of December next after the first 5 l. ought to be paid the 21 Nov. 12 Jac. for it refers to the day and not to the month 1 Rolls Abr. 442. Price and Coa If a Condition be to pay 10 s. when A. comes to his House and 10 s. at the Feast of St. Michael and then at the Feast of St. Andrew then next ensuing 10 s. these last Sums ought to be paid at the said next Feasts or Time and not at the next Feasts after A. comes to his House ibid. If a Condition be to pay so much citra such a Feast it ought to be paid on the Eve of the said Feast and not on the Feast day the same Law is If it be paid infra Festum or ante Festum but if it be to be paid in Festo it must be on the Feast day 1 Rolls Abr. Tit. Condition p. 442. Condition of an Obligation upon an Adventure to New-found Land to pay so much Mony within 40 days next after the Ship shall make her first return and arrival this Voyage from New-found Land into the Port of Dartmouth or into any Harbor Creek or Part of England where she shall first unlade her Goods and after the Ship doth return to Plimouth where she unlades her Goods the Obligor is to pay the Monies within 40 days after the arrival of the Ship and shall not have 40 days after the unlading of the Goods for this is not for Fraight but for an Adventure and the unlading of the Goods is only mentioned to describe the Haven where the Arrival shall be and not to put a limitation of payment of the Monies to have 40 days after the discharge but perhaps it might be some doubt if the unlading was not within 40 days the Plaintiff saith He paid not the Mony within 40 days after the Arrival of the Ship and avers that the Ship was unladen of the Goods but no time alledged of the unlading and per Cur. if it were not unladen with 40 days it ought to came on the other part to shew this 1 Rolls Abr. Tit. Condition 442. Leet and Cholwick Stiles p. 30. id Case The Condition was to pay at or before the 29th of September next at such a place if the Obligor tender the Mony the 28th of September at the place and the Obligee is not there it s a void Tender for the Tender is to be the last day but if the Obligor meet the Obligee at the place before the day and then he tenders it this is sufficient and Obligee ought to receive it Cro. El. p. 14. Hawly and Simpson A Bill Obligatory to render and pay 1188 Florens which then amounted to 33 l. 12 s. to he paid id solutionem Festi Purification ' called Candlemass day next ensuing the Plaintiff in his Declaration avers that praedictae solutiones dicti Festi Purification next after the making of the Bill were according to the use of Merchants the 20th day of February the Defendant pleads non est factum and found against him in Arrest resolved that payment among Merchants is known to be on the 20th of February and the Judges ought to take notice of it and the rather because the Defendant by his Plea confesseth the Declaration to be true in that Averment 1 Brownl Rep. 102. Pearson and Pentes The Condition is to pay Anno Dom. 1599. in and upon the 13th of Octob. next after the date hereof at D. where the 13th of Octob. next after the date is long time before 1599. let this shall be paid in 1599. and not before for that is first expressed 1 Rolls Abr. 444. Crook Eliz. p. 420. Hankinson and Kile The Condition if he paid 15 l. at the Feast of St. Michael next following and on the Feast of the Annunciation 15 l. and so yearly upon the said Feasts until H was advanced to a Benefice that then c. The Defendant pleads he was presented to a Benefice before the first Feast of St. Michael it is no Plea for the Advancement dischargeth not the two first Summons due at the said Feasts The limitation until he be advanced goes only to the other subsequent Payments Crook Eliz. p. 549. 2 Anders 65. Countess of Warwick versus the Bishop of Coventry A Condition to deliver 20 Quarters of Corn on the 29th day of February next following and that Month had but 28 days per Cur. he is not bound to deliver the Corn till such a year comes when February hath 29 days and that is Leap-year 1 Leon. 101. Anonymus A Condition to pay 20 l. at the Feast of our Lady without limiting in certain what Lady-day whether Conception Nativity or Annunciation per Cur. it shall be intended such a Lady-day which should next happen and follow the date of the Bond 3 Leon. p. 7. Anonymus Quaere An Obligation dated 15 May The Condition was to pay 20 l. the 11th day of May next ensuing this shall be intented the next 11th day of May the same May when the Obligation was made and not in the next Month of May 2 Rolls Abr. 255. Crook Jac. 646. Prescot's Case A Condition to pay 60 l. on the 25th of June 12 Jac. The Defendent pleads he paid it the 20th of June 12 Jac. The Plaintiff replies he did not pay it the said 20th of June Issue and Verdict pro Quer. it is Error the Issue is taken debors the matter of the Condition and so an ill Plea and void Issue and not aided by the Statute of 32 H. 8. for it may be the Obligation was not forfeited notwithstanding this Verdict Crook Jac. 435. Holmes and Brocket The Defendant demanded Oyer which was to pay mony the 31st day of September where in truth there are not so many days in September and he pleads solvit ad diem upon which they were at Issue and found for the Plaintiff and Judgment For the Condition being impossible the Obligation was due presently and it was an Issue upon an insufficient Bar which being found for the Plaintiff it is helpt by the Statute as in Nichols's Case in Payment pleaded in Bar upon a single Obligation Jones Rep. p. 140. Jiggen and Purchass The Bond was dated in March and the Condition was for payment super vicesimum octavum diem Martii prox sequentem per Cur. it shall be understood of the currant Month had it been sequentis perhaps aliter cited in Modern Rep. p. 112. One had put himself an Apprentice to Sell for seven years and Sell bound himself to pay to his Apprentice his Executors or Assigns 10 l. at the time of the end or determination of his Apprentiship the Apprentice serves six years and then dyes per Cur. the Obligation is discharged Tho per Cook if
not stay to wait for performance perhaps then he may stay as long as he lives but as on Bonds of Abritrament on breach of either Party hath remedy 2 Keble 674. Modern Rep. 64. Siderfin 464. Humlock and Blacklow In Debt for performance of Covenants they must be set out in Latin Allen p. 87. Of Assignment of a Breach on Bonds of Covenant IF Breach be assigned after the Action brought its ill the Defendant demands Oyer of the Obligation and it was for performance of Covenants the Plaintiff replies and assigns a Breach in non-payment of the Rent the 20th day of June 17 Car. and the Bill was filed Trin. 17 Car. which Term ended the 14th of June therefore ill Siderfin 307. Champions Case Bond of Covenants to perform the Indenture of a demise the Plaintiff declares he made the Lease the 28th of May to the Defendant and that postea scil 27th of the same month of May the Defendant broke the Covenant Demur because the breach is set forth before the Lease began and so no cause of Action but by Bacon where the postea scil are repugnant as here they are the postea shall be good to signifie the time of the Covenant broken and the scil shall be void Stiles p. 45. Anonymus If an Obligation conditioned for payment of Mony become payable hanging the Action this had made the Action good otherwise where it is conditioned for performance of Covenants and there is a Breach pendent the Action Q. Siderfin in Champions Case p. 308. The Plaintiff must assign a Breach to intitle himself except in some Cases vide infra on a Bond of Covenants that the Defendant should not deliver possession to any but the Lessor or such Persons as should lawfully recover the Defendant pleaded he did not deliver but to such Persons as lawfully recovered it the Plaintiff demurs Judgment pro Quer. Per Twisden on affirmative Covenants general pleading of performance is sufficient and so on negative for its sufficient for the Defendant to plead an excuse and the Plaintiff must assign a breach to entitle himself 1 Keble 380 413. Nicholas and Pullen One Covenant was That J. B. her Heirs c. should perform Covenants in a Deed Poll whereof one was That if I. died before the Plaintiff had satisfaction on Judgment assigned then the Administrators de bonis non of H. B. should farther secure that Assignment the Defendant pleaded performance generally the Plaintiff replies such a day I. died and sets not forth any Breach Judgment pro Defendente 2 Keble 288 301. Trussâ— and Mading The Plaintiff is not bound to alledge a special Breach when the Defendants Plea contains speciall Matter A Condition to perform Covenants in an Indenture one was That I. the Defendant should permit Guy the Plaintiff from time to time to come and see if the House leased by Guy and K. his Wife were in repair I. pleads in Bar that I. B. and K. his Wife were Tenants in Tail of the House and had Issue that I. B. died K. married Guy the Plaintiff and they two make a Lease to him for 20 years and that W. the Issue in Tail such a day entred before which entry the Condition was not broken Guy replies That William came with him upon the Land to see if Reparations c. and traverses the entry of William in manner and form prout and Issue joined upon the Traverse c. and found pro Quer. and Judgment it was assigned for Error that there was not any breach of Covenant in I. assigned and so had shewn no cause of Action but per Cur he need not in this Case for the special Plea of the Defendant had disabled the Plaintiff that he could not assign any breach of Covenant but of necessity ought to answer to the special Matter alledged It s not like the Case of Arbitrament in Debt on Bond to perform Award the Defendant pleads nul â—iel Award then the Plaintiff in his Replication ought to set forth Award and assign his Breach because the Defendants Plea 〈◊〉 general but if in such Case the Defendant should plead a Release of all Demands after the Arbitrament by which he offers a special point in Issue there it sufficeth if the Plaintiff answer to the Release without assigning any Breach Yelv. p. 78. Hob. cont â— Brownl p 89. Jeffry and Guy 2 Keb. 46 74. â—arch and â—lackaâ— The Condition was That wherâ— Ed. Tailor had bargained c. to the Plaintiff a Close c. and whereas the said Ed. T. hath already â—ort gaged to J. S. divers Lands in G. whereby the said Close is either mortgaged or supposed to be mortgaged c. if therefore the said Close of Pasture at the day mentioned in the said Indenture of a Mortgage be redeemed and set free c. the Defendant pleads the Close was not mortgaged to J. S. sic dicit quod clausum praed c. fuit redempt liberat exonerat c. the Plaintiff replies That the said Close was mortgaged to the said J. S. and upon this Issue joined and found pro Quer. and 't was moved in Arrest of Judgment that the Replication was not good for he ought to have replied quod pignoratum fuit to the said Smith and is not redeemed for it might be redeemed before the day Per Cur. it s a good Replication 1. The Defendant hath offered a particular point in Issue that it was not mortgaged and the Plaintiff answers it when he saith it was mortgaged and need not alledge that it was not redeemed for there shall never be intended any redemption because the Defendant pleads it was not mortgaged as J. S. is bound to marry the Daughter of J. D. upon Easter-day next in Debt on this Obligation if J. S. pleads in Bar that the Daughter of J. D. died before Easter-day it s a good Plea and its a good Replication that the Daughter was living on Easter-day without saying farther that he had not married her because a special Plea in Bar is always answered with a special Replication in the Point alledged 2. Because the Mortgage is supposed to be made between a Stranger and the Defendant to whose Acts of Redemption c. the Plaintiff is not privy and cannot have conusance or notice of theire Acts its excellent Learning which hath made me more at large recite it Yelv. M. 44 and 45 Eliz. R. R. fol. 24. Baily and Tailor Cro. Eliz. p. 899. mesme Case the difference is such pleading after Verdict should be good but not if demurred to as the Condition was the Defendant should render account of all such Goods of A. as came to his hands or pay his part for them The Defendant pleads nothing came to his hands The Plaintiff replies a silver Bowl came to hands Demurrer Ill Replication for he should have said and had not paid for it Siderfin 340. 1 Keb. 275. Hayman and Gerrard Though in Obligations put in Suit for
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.
221 225. Blith and Hill Declaration IN the Declaration is omitted ad eandem solation faciend obligo me haeredes meos it was amended Cro. Jac. 147. Forger and Sales Alit if one declare in debet detinet where it ought to be in the detinet only ibid. Winch p. 20. If I declare on Obligation against a collateral Heir the Declaration must be special as Debt against the Brother and Heir the Defendant pleads riens per descent from his said Brother but he had Assets by descent from the Son of his Brother but he must be charged by special Declaration and so Judgment pro Def. Cro. Car. 151. Hill 4 Car. 1. Jenkes Case Judgment and Execution DET port en Lichfield against the Heir he pleads riens c. the Plaintiff replies Assets but shews not in what place whether within the Jurisdiction Judgment was erroneous yet per Dodderidge If the Jury find the Assets to be deins Jurisdiction its sufficient though not so alledged Q. if Costs and Damages shall be given to the Plaintiff on such Judgment 2 Rolls Rep. p. 48. Brown and Carrington In all Courts he must shew the place of Assets Q. Cro. Jac. 502. id Case Co. Rep. 6.46 Dowdales Case Det vers l'heir pendant le Action another Action was brought against the same Heir upon another Obligation of the Ancestor Judgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Judgment first he for whom the first Judgment was given shall be first satisfied but if the Heir after the first Action brought had aliened and the Plaintiff in the second Action commenced his Suit after such Alienation had obtained Judgment before the first Plaintiff in that case the Plaintiff in the first 〈◊〉 on should be satisfied and he in the second Action not at all Mod. Rep. 253. Anonymus In Det vers l'heir by Bill after riens per dâ—sm pleaded tempore exhibitionis Bills the Defendant excepted at the Trial because the Bill was not shewed and the Plaintiff was non-suit Per Câ— the Bill is confest and need not be shewed 1 Kâ—b p. 793. Rogers and Rogers The Heir shall put in Bail on a Writ of Error per Stat. 16 Car. 2. c. 2 Keb. 320. Coâ—ber and Walton Det vers tres Co-heirs two confess Assets the other pleads to Issue and is non-suited it s a Non-suit against them all though the two have confest and so the Plaintiff lost his Debt there being â—n Alienation before a new Original Siderfin p. 378 Blacks Case He ought to confess the Assets that truly descend to him otherwise his own Land shall be charged with the Debt Plow 440. Pepyes Case Dyer â— Henninghams Case Dyer 344. Qu. if upon â—il dicit or non sum informatus Judgment shall be general but in Sc. fac sur Recognizance of the Ancestor against the Heir he pleads riens per descent which is false here Judgment shall be special for he is not charged as Heir but as Terre-Tenant at the end of Popham 1 Car. B. R. 153. Bowyer and Ricots After Imparlance one is estopt to say that he is not Heir being charged in Debt as Son and Heir so to say he is a Bastard 35 H. 6. 36 37. The Heir pleads riens per descent besides one Acre if the Plaintiff please he may have Execution of that one Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land only and not of his Person Where the Heir pleads he hath nothing by descent generally and it s found against him the Land and all other Land that he hath and his Body are â—iable to judgment by Ca. sa Fi. fat or Elegit â—1 Brownl Rep. 254. Qu. what difference between a false Plea and nil dicit 2 Keb. 343. Riens per descent after the death of the Ancestor Prist Such Issue shall be good in a Formedon for if he have Assets at any time he shall be charged and barred of his Formedon intirely in this Case it must be riens jour de brevâ— purchase nec unâ—pâ—is 10 H. 7.8 b. In Det vers 4 Co-heirs on several Issues on riens per descent Assets was found as to one only Judgment given against her that had Assets quod reâ—uperes debitum damâ— sua generally 〈◊〉 de hunis propriis 2 Keb. p. 588. Cary and Brickmâ—r versus Lock On nil dicit the Heirs own Lands and Goods shall be charged i. e. a general Judgment The Heir pleads Lands set out for Portions besides a Reversion of which he hath nothing replies a third part descended Judgment special 1 Keb. 156. Cudmoâ— and Lâ—wis Judgment against the Heir upon nil dicit shall be general and shall extend to his own Lands as well as to those which specially descend Poph. 154. Bowyers Case Mâ—or n. 657. Barâ—r and Borâ—e Capias lies too against the Heir in Case of a false Plea 2 Leon. p. 11. Sir John Lyons Case The Defendant confesseth he hath a seck Reversion beyond which he had no Assets the Plaintiff said he had ouster and were at Issue the Plaintiff comes and prays leave to wave this Issue and to have Judgment of the Reversion quod fuit concessum quando accideret 1 Rolls Rep. 57. Anonymus The Jury find the Defendant had divers Lands in Fee by descent and shews not what yet Judgment good for upon his false Plea Judgment shall be given generally against him if he have any Assets and so the quantity of the Assets is not material but otherwise in Case of Executors for there they must find the value of the Assets for he must there recover according to the Assets found 1 Rolls Rep. 234. Evet and Sucliff M. 13 Jac. 1. B.R. The Judgment and Execution shall be general unless the Heir acknowledgeth the Action and shews that he hath so much by descent Cro. M. 41 and 42 El. 692. Barker and Bourne If the Heir pleads riens per descent and it be a faux Plea it shall be a general Judgment against him and no Writ of Enquiry need to be to enquire what Lands he hath and need have no special Judgment for the Judgment ought to be that the Defendants Body and Goods shall be liable and half his Lands Stiles p. 287 288. Allery and Holden If the Jury find he hath Lands by descent and name them and Judgment accordingly its erroneous Stiles p. 327. Subgrave and Bosvil Cro. Jac. p. 236. Molineux Case Armourer versus Willis 2 Keb. 642 643 667 719. What Bail the Heir shall put in 3 Keb. 803. Lawrence and Blith Bonds of Arbitrament I Shall not here run into the Learning of Awards which is a curious and large Title in our Law and of which Mr. March hath composed a very Methodical Treatise but take notice of some few select Cases which respect the Nature of such
have a Deceipt presently before Execution 19 H. 6.44 cited in Hobart p. 267. The Penalty of Forging Deeds 5 Eliz. c. 14. Co. 3 Inst p. 171. When the Statute saith If any Man forge any Obligation or Bill Obligatory these must be intended to be Sealed If a man forge a Statute Staple that is acknowledge them or either of them in the name of another these are Obligations within this Act for each of them hath the Seal of the party Alitèr of a Statute Merchant or of a Recognizance because they have not the Seal of the Conusor Co. 3 Inst p. 171. Obligation of 10000 l. for the payment of 5000 l. per W. who is dead at three Months end It was suspected to be forged and on Non est factum pleaded at Trial at Bar the Testimonies were examined apart The Jury found Non est factuns but the Obligation shall not remain in Court but be delivered to the Plaintiff Siderfin 15 Car. 2. B.R. p. 131. Guillim's and Huley Forgery may be pleaded in Bar to an Obligation but it 's no Plea to say that there was an award in Chancery that the Obligation should be void for unconscionableness 37 H. 6.13 14. B. was bound in 100 l. Bond to A. for the honesty of his Son an Apprentice with A. and A. in the Obligation razeth out libra and put in marc◠This is not Forgery punishable it 's not a prejudice to any but himself for by that the Obligation is void Noy 99. Black and Allen. Where false Alterations shall be a Forgery within the Stature Co. 3 Inst p. 169. Detinue IN Detinue the Defendant pleads That the Obligor and Obligee did deliver it to him sub certis Conditionibus and he knows not whether they be performed and prays Garnishment and on Issue found for the Plaintiff It was moved in Arrest of Judgment because there was not Garnishment before the Issue and the Issue is uncertain sub certis conditionibus non allocatur it 's a Jeofail Cro. Eliz. 856. Pursand and Whityer Detinue of a Bond on non detinet it was found for the Plaintiff and Damages assessed to 7 l. and Cost 6 d. and if the Bond cannot be restored then they assessed for Damages besides the 7 l. 20 l. more the Judgment ought to be Conditional to recover the said Bond or if he cannot have the said Bond then the 20 l. and so the Distringas to the Sheriff must be to demand the Bond and if it cannot be delivered then the 20 l. for it is not at the Sheriffs choice therefore the Distringas Vic' for the said Bond or 20 l. was erroneous Cro. Jac. p. 681. Peters and Heyward One Executor gives up a Bond in discharge of his own Debt and dies the surviving Executor shall not have Detinue for it Croi Eliz. p. 478 496. Kelsock and Nicholson Where and in what cases Notice is requisite to be given before the Action brought upon an Obligation and where not and by whom WHen a Man binds himself to do or perform any thing to be awarded c. by a Stranger he thereby takes upon himself to take notice at his peril of all things incident thereunto for the saving of his own Bond 8 Rep. 92. b. Frances Case As Condition to perform the Award of J. S. and J. S. makes an Award the Obligor ought to take notice thereof at his peril for that he hath bound himself thereto and no Notice is requisite to be given to him Condition to pay 20 l. within 10 days after J. S. hath rode five times in six days from London to York and from York to London he ought to take notice of the doing of this at his peril for that it is to be done by a Stranger 1 Rol. Abr. 463. Herbye and Pope Condition to pay 40 l. to B. within a year after B. shall marry C. he is bound to pay it within the year after Marriage without any Notice given of the Marriage by B. for he hath taken it upon him and he may have Notice by C. who is a Stranger to the Condition 1 Rol. Abr. 463. Shephard and Fry A. is bound to B. that A. shall pay to B. all such Monies which by a true and justifiable Bill under the Hand of B's Attorney shall appear to be before disbursed per B. or his Attorney B. assigns a breach that 24 s. by a true and justifiable Bill under the Hand of J. S. Attorney of B. appears to be disbursed which A. hath not paid This is a good Breach without alledging that A. had Notice of this or that the Bill was shewed to him for the Attorney was a Stranger of which A. ought to take notice at his peril 1 Rol. Abr. 467.39 Dewell and Wilmot Bill Obligatory to be paid within 10 days after J. L. went by five days undivided from thence to London and alledges he did so licet saepius requisitus Quare If there need any Notice because the Act is to be done by a Stranger and his time of Return lies as well in the Notice of the Obligor as of the Obligee Cro. Jac. p. 150. Normanvile and Pope Condition to pay such Arrears as should be found on his Account before such an Auditor Defendant pleads he did account and was always ready to pay the Arrears if the said Auditor had given him Notice No Plea for he hath bound himself thereto and he must take notice thereof at his peril 1 H. 6.5 But Condition to Account before such Auditors as the Obligee shall Assign he ought to give Notice of them to the Obligor 8 Ed. 4. 1. b. Regularly it is not requisite to give Notice where one is bound to do an Act by Bond. Undersheriff covenants with the High-sheriff to discharge and save him harmless of all Escapes of Prisoners that should be Arrested by him or any Bailiff appointed by him and a Bond of Performance Per Curiam The Sheriff is not bound in this case either to give Notice to the Under-sheriff of the Escape or to make request for discharge for the Covenant binds him to discharge at his peril Hobart p. 14 Sir Daniel Norton's Case Condition that if the Obligee return from beyond Sea before the 22th of April next then if the Obligor pay unto him at Easter following 200 l. then c. if Obligee return within the time he is not bound to give Notice of this to the Obligor but he ought to take Notice at his peril for he hath bound himself to this Inconvenience 1 Rolls Abr. 463. Eve and Dawtry Condition to pay 10 l. at the day of Marriage of the Obligee the Obligee is not bound to give Notice to the Obligor before his Marriage at what day he will be married but the Obligor must take Notice at his peril for he hath taken upon him to pay it at the Day 1 Rol. Abr. 461. Beresford and Goodzon's Case So it is if it be at the day of the
Debt on Obligation in which Outlawry goes in Bar he failing of the Record the Plaintiff had Judgment Cro. Eliz. 203. Smith and Bernard The Defendant pleads Outlawry in the Plaintiff and shews it in certain the Plaintiff pleads nul tiel Record in the mean time the Plaintiff reverseth the Outlawry The Defendant shall not be condemned but a Respondeas ouster Failer of the Record not peremptory the Defendants Plea being true at that time Yelv. p. 36. Green and Gascoigne 1 Browel Rep. p. 83. The Defendant pleads Outlawry of the Plaintiff and shewed the Outlawry in certain by the name of J. S. of D. in the County of c. The Plaintiff shewed that at the time of the Suit begun against him the said J. S. upon which the Outlawry was pronounced was dwelling at S. absq ' hoc that he was dwelling at D. Per Anderson it s a good Replication to avoid the Outlawry without a Writ of Error for he cannot be intended the same Person 1 Leon. p. 87. Anonimus In Debt on Bond The Defendant Imparles till next Term after he may plead that the Plaintiff is Outlawed for the King shall have the Debt on Bond aliter in Trespass or Debt on simple Contract 16 Ed. 4 4. a. per Brian The Defendant pleads Attainder of himself after a Debt due to the Plaintiff it s no Plea More n. 982. Hall and Trussel Bro. Eliz. 516 Banister and Trussel 2 Anderson 38 45. Mesme Case The Defendant pleads at the time of the Obligation made he was non sanae memoriae its non Plea Cro. Eliz. p. 398. Stroud and Marshal The Defendant pleaded that the Plaintiff is a recusant Convict in Bar Litt. Rep. 235. Rooksby versus Bridge Debt upon Obligation in Norwich The Defendant confest it to be his Deed but according to the Custom there prayed quod inquiratur de â—debito and the Inquest was awarded and returned and found to a certain sum for which sum the Plaintiff had Judgment to Recover this was assigned for Error But because it was done according to the Custom it was not Reversible Cro. Eliz. 894. Grice's Case In Debt on Obligation against the Lord Monteagle The Defendant pleads his Peerage and prays to be Discharged Per Cur. Plead in chief this is but a Dilatory Plea Stiles p. 257. Lord Monteagles Case Arbitrament pleaded in Bar. Vid. Supra titulo Rules of Pleading Foreign Plea THe Condition was that in case the Ship were Cast-away in the Voyage and did not return it should be void The Action was laid in London and the Defendant pleaded she was Cast-away at Falmouth It s ill had the Plea been local it ought to be sworn The Action being Transitory the Defendant shall not by any thing Transitory alter the Venue but ought to alledge the Ship was Cast-away at St. Maria de Arcubus in Warda de Cheap in the same County the Action is brought 1 Keb. 750. Collins's Case The Declaration is that the Obligation was at Barnstable and the Plea is that it was at Chichly and payment alledged there which is a Foreign Plea The Plea was not sworn nor demurred to but received and Day given to swear it and for not swearing it accordingly Judgment is given by default whereas it ought to have been by Nihil dicit for want of a Plea And per Rolls If one plead an Insufficient Plea although it be a Foreign Plea it s not necessary it should be sworn Stiles p. 200. Wyatt and Harbye In a Corporation Court if the Defendant plead a Foreign Plea which is Collateral as in Debt on Bond he pleads a Release made in a place out of the Jurisdiction it need not be received without Oath But if in Covenant or Debt for Mony to be paid in another place he pleads payment accordingly or the Covenants performed in a place limited which is out of the Jurisdiction it ought to be received without Oath Lit. p. 236 Corporation Court Condition for performance of Covenants Breach assigned for Non-payment of Rent The Defendant pleads performance till such a day and that the Plaintiff entred in Surry where the Lands are leased But the Action being in B. R. the Court made him swear his plea yet because the Council offered to try it by Nil debet which is no Plea but by Consent which the Plaintiff refused the Court allowed the Plea 2 Keb. p. 386. Jones and Comport Debt on Bond in Bristol Recovery pleaded in the Kings Bench the Plea must be sworn and though it be sworn if they have cause to presume it not true they may refuse it Siderfin in Knights and Pitt's Case fo 330. Foreign Attachment pleaded THe Defendant pleads Foreign Attachment in London to Debt on Bond The Plaintiff demurs 1. Because the Defendant had Attached Mony in his own hands by way of Retainer 2. The Custom is in London that the Recoveror ought to find Sureties that if the Defendant be discharged within a year and a day then to pay the Mony and it did not appear by the Record that he found Sureties This was held an incurable Fault 1 Brownl Rep. p. 60. Hope and Holman L. brought Debt against H. on Obligation H. pleads how one J. J. affirmed a plaint of Debt in London against the said L. and by the Custom there Attached that Debt now demanded in the Hands of the said H. and pleaded the Recovery and Judgment there The Plaintiff replies that before Attachment J. J. brought Debt in the King's Bench against the said L. for the same Debt whereupon he made an Attachment whilst the Suit was depending Et hoc c. H. demurs Per Cur. notwithstanding this that J. J. had commenc'd a Suit in B. R. for his Debt and the Suit there depending yet the Debt in the Hands of H. may be Attached For tho one cannot Attach a Debt in London for that a Suit is here depending in the King-Bench as Cro. Eliz. 691. Humfrey and Barnes yet one who hath conceived an Action here may affirm a plaint in London for the same Debt and may make Attachment of the parties Debt according to the Custom For there the Debt in question is not touched by the Attachment and the Plaintiff might now have pleaded this Attachment in Bar for so much of his Debt in the Action brought in the King's Bench Cro. Eliz. 593 712. Leuknor and Huntly The Defendant pleads that the Plaintiff was Indebted to him concessit solvere and pleads a Foreign Attachment in London The Plaintiff protestando quod non habetur tale Record ' pro placito dicit that he pro diversis denariorum summis per ipsum prafat R. prius debit ' non concessit solvere the said Sum modo forma prout Adjudg'd a good Plea in Bar for the Debt is well Travelable Cro. Eliz. 830. Coke and Brainforth The Defendant pleads Tender and so to Issue and after the Defendant pleads that after the Darrein Continuance Foreign Attachment Per Cur
De vicineto Civitatis Lincoln ' the Trial is good and it s a Rule where it doth not appear upon the Record that there is a more proper place of Trial than where the Trial was that there the Trial is good but here is not a more proper place and it could not be tryed in the Body of the County because the payment was to be in the City March Rep. 124 Thorndike and Turpington Debt upon an Obligation in London against J. S. of Wakefield in Com' praedicto Conditioned for the payment of 100 l. at Wakefield The Defendant pleads payment at Wakefield aforesaid in Com' Ebor ' The Plaintiff saith Non solvit and so at Issue The Trial was De vicineto de Wakefield in Com' Eborum It was Error because he is named of Wakefield in Com' prad ' which shall be intended London and the payment at Wakefield aforesaid shall be so intended and the words added in Com' Ebor ' are idle Cro. Eliz. 867 Sackvill and Roades Venue THe Margent of the Count is Nott ' and the Count it self contains that the Obligation was made at the Town of Nott ' which is a County it self on Non est factum Venue was of the Town of Nott ' and tryed by a Jury of the County Per Cur ' in arrest of Judgment though the Town of N. be a County of it self yet it may be some part of the Town may be within the County and for that possibility they would not arrest Judgment 2 Brownl p. 165. Browning and Shelly The Plaintiff declared on a Bond made in London The Defendant pleads an Usurious Contract in Staffordshire and the Bond made for the same Contract The Plaintiff replied the Bond was made bond side non pro usura The Issue was tryed in the County of Staff And per Cur ' it was well tryed 1 Leon. pag. 148. Case 206. Kinnersley and Smart The Plaintiff Leased to the Defendant certain Lands in Cambridgshire rendring Rent and the Defendant became bound in a Bond for the payment of the Rent Debt on the Bond is brought in the County of Northampton to which the Defendant pleads payment of the Rent without shewing the place of payment It was tryed per Nisi prius at Northampton and well 2 Leon. 146. Coney and Beveridge's Case Debt brought in London which on Oyer was to perform Covenants which were to enjoy a Walk in a Forest On pleading the Venue was of the Walk though the Venue be ill yet it s aided after Verdict per Stat. 16 â— 17 Car. 2. cap. 8 2 Keb. 212 216. Sterk and Bates Condition was that if he appeared such a day it may be tryed per Pais Cro. Eliz. 131. Hoc and Marshall Debt on a Bond In the Imparlance-Roll the Bond was alledged to be made at Newcastle and in the Issue-Roll it was alledged to be made at York and tryed Error was brought The Court would not grant that the Imparlance-Roll might be amended 1 Brownl Rep. 66. Fetherston and Tapsale A Bill Obligatory to be paid within ten days after J. L. went by five days undivided from London to York and returned from York to London The Defendant pleads that J. L. did not go five days immediately from London to York and return from York to London Issue and Venue was awarded from the Parish of Bow in Warda de Cheape where the Bill was alledged to be made and found pro Quer. Judgment was arrested because it is not alledged to what Parish in London he Returned but to London generally that so a Venue might have been 2. As this case is the Venue must be from London so de corpore Comitatus and not of the Parish where the Bill was made Cro. Jac. 137 150. Normanvile and Pope Debt on Bond Conditioned to pay 20 l. and saith not where The Defendant pleads Solvit ad diem and Verdict and Judgment The Court denied to affirm the Judgment because here is no Venue and so no Trial. This was in Durham on Error brought 2 Keb. 620. Norcliffe and Anderson Condition to pay a Moiety of Charges c. The Defendant pleads Payment and saith not where The Plaintiff demurs because no Venue can be Per Hales no place is here necessary the Pleading being in the Affirmative 2 Keb. 762. Cantor and Hurtnell Condition to be paid at his Mansion house c. this may be paid at any place 3 Bulstr 244. In Debt on Bond Trial in Issue shall not be stayed on infra aetatem but this must be pleaded and the party cannot be aided on Non est factum but a Feme Covert may 3 Keb. p. 228. Cole and Delawne Debt on Bond in Norwich and Cognovit Actionem by custom a Writ of Enquiry was awarded de vero debito and good 3 Keb. 212. Brightman and Parker 251. Rogerson and Jacobson A Man recovers Debt on Bond If A man will bring Action of Debt for the Sum recovered he must lay it in the County of Middlesex and where the Judgment was given which hath made Novationem contractus Hob. p. 196. in Hall and Winkfield's Case Joyning Issue on payment COndition to pay tantas denarionum summas as he should receive by such a day The Defendant pleads payment generally The Plaintiff replies he did not pay 50 l. such a day hoc paretuâ— c. and good for the Defendant must rejoyn and conclude Et hoc petit c. 2 Keb. 230. Tr. 19 Car 2. Hansal and Nurse Condition to pay a lesser sum the 24 of June in such a year The Defendant pleads he paid this praedicto 24 die Junii quod ei solvisse debuit secundum formam effectum Conditionis The Plaintiff replies quod non solvit praedictam summam c. pradicto 14 die Augusti quod ei solvisse debuisset hoc petit c. The Jury find the Defendant non solvit praedicto 14 die Junii And the Plaintiff had Judgment Error assigned because no Issue joyned The Plaintiff ought to have replied quod non solvit praedicto 14 die Junii and not 14 die Augusti Per Cur. its good Had the Plaintiff replied quod non solvit praedicto 14 and omitted August this had been good then the addition of August is idle and surplusage 2 Rols Rep. 135. Halse and Bonithan Condition to pay 10 l. 10 s. The Defendant pleads payment of 10 l. Secundum formam c. upon which Issue and Verdict pro Querente and yet Repleader Awarded Hob. p. 113. Kent and Hall On Colateral Point COndition that the Obligor shall find three men to go with him to Y. and he â—urmiseth they went with the Obligee if the Obligee saith they did not go with him this is no Issue for if one of them fail the Obligation is forfeited 4 H. 7.8 per Vâ—visor Condition If M. W. the Plaintiff doth not depart out of the Service of the Defendant without License of the Defendant nor Marry her self but with his consent then if
are in full life Jones p. 303. Vid. Obligation In Debt sur single Bill of 50 l. the Defendant after imparlance pleaded that after the last continuance he had paid the Plaintiff 5 l. parcel of the 50 l. and demanded Judgment of the Bill petit quod billa cassetur the Plaintiff demurs It is an insufficient Plea because the Defendant did not alledge he had an acquittance which he ought to produce if he had an acquittance he might have pleaded in Bar or Abatement but this Plea is not peremptory because it concludes in Abatement respondeas ouster awarded Allen 63. Loder and Hampshire Allen 65. Beaton and Forrest Stiles 212. Hollingworth 15 H. 7.10 Payment without Acquittance is no Plea to a single Bill Crook Eliz. 157. And yet if such Payment be pleaded upon a Bill it being admitted and tryed against him who pleaded it the tryal is good and Judgment shall be given thereupon as in Blunden and Wood's Case Crook Jac. 85. For though Payment without Acquittance be no Plea and Issue is joined upon a thing not material for if the Defendant hath paid the Sum without Acquittance yet the single Bill doth remain in force But in as much as there was an Issue joyned upon an affirmative and a negative which is found pro Quer. it is expresly helped by the Stat. 32 H. 8. and 18 Eliz. Judgment pro Quer. 5 Rep. 43. Chamberlain and Nichol's Case The Plaintiff might have demurred upon the Plea and good Crook Eliz. 455. mesme Case and More n. 908. As in Debt the Defendant demands Oyer which was to pay Mony 31 Sept. the Defendant pleads solvit ad diem and upon Issue joyned found for the Plaintiff The Condition being impossible the Obligation is presently due and it was an Issue upon an insufficient Bar which being found for the Plaintiff is aided by the Stat. Jones p. 140. Jiggon and Purchas Debt upon a Bill whereby the Defendant acknowledged he had received 7 l. of the Plaintiff ad emendum a pair of Bellows c. to the use of the Plaintiff and avers that he had not bought the things nor paid the Mony The Plaintiff in this Case may have Debt or Account Cro. Eliz. p. 644. Earl of Lincoln versus Topcliff Obligations Joynt Joynt and Several By what Words or when an Obligation may be said to be Joynt or Several Actions and Declarations thereon FOUR are bound in an Obligation by these words utrumque nostrum the Obligee may charge any of these severally But if he will have a joint Action of Debt against two of the four the Writ shall abate for if the Plaintiff will charge them joyntly the other two which are not named shall be charged also with them joyntly by the same Deed 10 H. 7.16 34 E. 3. Dyer 129. Two are bound per joint Words and every of them by himself puts his Seal to the Deed this shall not make the Obligation several 10 H. 7.16 Two bind themselves vel alter eorum this makes the Obligation joint or several 7 H. 4l 6. b. Two bind themselves quemlibet nostrum this is joint or several 2 Rolls Abr. 148. Two bind themselves vel utrumque nostrum this is joint or several for this word vel makes it several at Election 2 Rolls Abr. 148. Hankerson and Sir Tho. Sandelon mesme Case vide 1 Brownl Rep. p. 121. Cro. Jac. 322. â— Bulst 70. Three are bound jointly and severally in one Bond the Obligee brought Debt against two this he cannot do but he may have one Precipe against the Three or several Precipes against every one 27 H. 8.6 singulos nostrum 1 Brownl 121. is joint or several Three were bound in a Bond by these words Obligamus nos quemlibet nostrum conjunctim It s a joint Bond and not several for the word quemlibet is expounded by the word consunctim 3 Leon. p. 206. Wigmore and Wells More p. 390. Uterque recognovit makes a joint Bail Bond or several at election Cro. Jac. p. 45. Hargrave and Rogers Noverint universi nos I. B. A. K. H. F. teneri c. ad quam quidem solutionem c. Obligamus nos Haeredes Executores Administratores nostros sigillis nostris sigiâ—at Plaintiff declares against the Defendant soâ—e Defendant demurs upon Oyer because it appears upon Oyer that they are joint Per Cur. The two others are named yet it appears not that they put their Seals to it and so the Obligation is single but if the truth were that the other two had sealed as well as the Defendant then the Defendant if he would take advantage of this ought not to have demurred upon the Oyer but he ought to have pleaded in Abatement that the other two Persons sealed the Obligation who are yet in full Life and so pray Iudgment of the Bill 1 Sanders Trin. 21 Car. 2. fol. 271. Cabel and Vaughan Though sundry Persons may bind themselves quemlibet eorum and so the Obligation shall be joint or several at the election of the Obligee yet a Man cannot bind himself to three and to each of them to make it joint or several at the election of several Persons for one and the same cause for the Court shall be in doubt for which of them to give Judgment which the Law will not suffer 5 Rep. p. 18. b. If Merchants in a Charter-Party covenant with the Owners separatim that one Merchant shall pay 3 l. another 3 l. and so of the rest the words are conveniunt seporatim and at the end there is such a Clause Et ad performation omnium singular ' convention ' ex parte praedict ' Mercator ' perimplend ' quolibet Mercator praedict ' separatim obligat seipsum praefato Majori pro Proprietariis en double le fraight the Covenant is several and so is the last part videlicet the Obligation 5 Rep. Mathewsons Case 2 Rolls Abr. 149. In an Indenture there are three of the one part and two of the other part in which the two covenant jointly and severally to do a certain thing and the third covenants jointly and severally with the said two after the performance of the said thing by the two to pay to the said two a certain Sum for each particular c. and after ensue these general words Pro vera reali performatione omnium articulorum agreamentorum praedictorum alternatim utraque partium praedictarum obligavit se Haeredes Executores c. in subter penalitatem 60 l. Sterlingorum This Covenant is joint and not several and an Action on the last Clause cannot be brought against one of the said three only 2 Rolls Abr. 149. If an Obligation be writ in the Name of two joint and several and they severally deliver the Obligation at several times and places this is yet joint and several 8 H. 6.31 Debt on joint Obligation vers Survivor Defendant pleads one of the Obligors died and the Plaintiff
be presented so that he would resign when the Son of J. was qualified Whereupon the Defendant entred into a Bond of 1000 Marks on Condition having first recited the Agreement that if the Defendant within three Months after request should absolutely resign the said Benefice that then c. In Debt on this Bond the Defendant pleads non requisivit which was found against him And in Arrest of Judgment it was moved that this Bond was made on Simoniacal Contract and so void But the Court gave Judgment for the Plaintiff 1. Because there was no Averment of the Simony 2. That it was not material as to the Bond because that Statute doth not make the Bond or Contract void but only the Presentation The sense of the Court in that Case was that in truth if a Man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take of such person as he shall present a Bond to resign when his Son is become capable of such Living But if a Patron take a Bond absolutely to resign upon Request without any such cause as the Presentment of a Son or to avoid Pluralities or Non-Residence or such reasonable cause but only to a corrupt end to exact Mony by this Bond from the Incumbent or attempt it tho the Bond may be good against the Obligor yet it makes the Church become void and gives the Presentation to the King It seems in this Case if Simony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was Crook Trin. 8 Jac. 248 274. John and Lawrens Sir Simon Degg p. 54 55 56. Such a Condition was in Wood and Babington's Case to resign into the hands of the Bishop of London Upon Oyer of this Bond and Condition the Defendant demurred Judgment pro Querente But per Cur. If the Defendant had averred that the Obligation had been made with intent to exact Mony make a Lease c. which in it self had been Simony then it might have been a Question whether this Bond had been good or not but upon this Demurrer it doth not appear there was any Simoniacal Contract and such Bonds might be for good and lawful ends ut supra Crook Car. 180. A Condition to resign on Request which was If Jo. Watson do and shall upon the first of Octob. next or before if the said William Baker at the Parsonage-House of Cowley shall request the same and before John Watson shall take another Benefice in due manner resign the said Rectory Parsonage or Benefice of Cowley aforesaid unto the Bishop or Ordinary of the Diocess whereby the Rectory may become void and the said William Baker may lawfully present to the same then this Obligation to be void The Defendant after Oyer pleads Resignation the Plaintiff replies he did not resign Et hoc petit c. The Defendant demurs for that the Condition is void Per Cur. it hath been above a dozen times adjudged that the Condition is good Quaere if the Resignation shall be tryed per pais or by Certificate 2 Keb. 446. Siderfin p. 387. Baker and Watson M. 20 Car. 2. B. R. In Debt on Bond for payment of Mony at a day certain The Defendant pleads it was made upon a Simoniacal Contract for the Presentation to a Benefice c. per Cur. it is no Plea because it was averred by matter debors and appeared not within the Deed and an Averment shall not be that it was paid for other causes than the Obligation expresseth More n. 729. Noy p. 72. Gregory and Older The Condition was if Web the Patron presented the Defendant and if the Defendant continued Incumbent for a year and after the year at all times within three Months after Notice and Request was ready to resign and did resign the Benefice to the Ordinary to be presented thereto again by Web and should not before resign that then c. The Defendant pleads Stat. 13 14 Eliz. and that after he was inducted he made a Lease to the Plaintiff of the Benefice for 21 years and averred the Obligation was made for enjoying the Land by Lease The Plaintiff demurs Per Cur. the Plea was good but the Averment not sufficient Judgment pro Quaer More n. 835. Web and Hargrave Against Stat. 13 Eliz. c. 20. 14 Eliz. c. 11. Of Non-Residence NO Lease to be made of any Benefice or Ecclesiastical Promotion or any part thereof and not being impropriated shall endure any longer than while the Lessor shall be ordinarily resident and serving the Cure of such Benefice without absence above 80 days in any one year And all Bonds and Covenants for suffering any such Parson to enjoy any such Benefice with Cure shall be void 13 Eliz. c. 20. 14 Eliz. c. 11. either by Parson or Curate the Lease was made to the Curate who leaseth over Qu. If the absence of the Parson shall make the Lease void 1 Leon. p. 100. St. John and Petit's Case Upon the Statute 13 Eliz. of Leases made by Parsons that upon Non-Residence for 80 days the Lease shall be void this Statute voids Bonds for Non-Residence If the Condition be that after Institution and Induction he shall at all times after be ordinarily resident and serve the Cure without being absent 80 days during any one year that he shall be Parson of the said Church this is a good Condition without Averment taken to be for a Simoniacal purpose 1 Rolls Abr. 417. Cary and Yeo. The Condition was that if the Defendant be not absent 80 days from his Benefice nor resign without the assent of his Patron then c. The Defendant pleads Stat. 13 Eliz. That all Leases of Parsons made of their Benefices where they are absent 80 days ultra and all Obligations for enjoying them shall be void and saith he was absent by the space of 80 days and saith not ultra it was held an incurable fault in the Plea Cro. Eliz. p. 88. Gosnal and Kindlemarsh Such another Case in Crook Eliz. p. 490 Earl of Lincoln versus Hoskins Such a Plea was naught 1. The Statute was misrecited tam diu where the words are tam cito 2. Because it is not alledged that he was absent for otherwise neither Lease nor Bond are void Against Statutes of Usury 13 Eliz. c. 8. 21 Jac. 12 Car. 2. c. 13. How and when such Obligations become void or not and the Pleadings thereon IF the Contract be not usurious it shall not be made Usury by mater ex post facto A Bond for 60 l. and gave Bond to pay it and 6 l. Interest at the end of the year and before the end of the year the Obligor pays 6 l. for Interest it is not Usury 1 Bulstr 17. Anonymus A Condition to pay 20 l. per annum during Life it is no Usury but an absolute Bargain had there been any provision
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
his Election to accept the Estate tendred or the Mony and there cannot be an acceptance but where there is a tender on the other part Therefore the Conisor ought to have devised the Estate and procured the Conisee to accept thereof otherwise he ought to pay the Mony Crook Eliz. p. 718. Mills and Wood. A Covenant to make a Lease on such Covenants as the Plaintiff or his Counsel shall advise the Plaintiff must tender the Lease 3 Keble 183. Twiford and Buckly The Covenant is to make a Lease for three Lives before Michaelmas the Defendant pleads that none of the Lives were named by the Plaintiff The Plaintiff demurs Judgment was for the Defendant the Plaintiff must name them 3 Keble 183 203. Twiford and Buckly The Defendant pleads the Condition was if the Defendant make an Estate to the Plaintiff of certain Land before such a day in Fee by Feoffment Fine or otherwise as his Counsel learned in the Law shall advise The Plea was Concilium non dedit advisamentum The Defendant is not bound to request his Counsel to make advice and the advisement doth not come on the part of the Plaintiff but on the part of the Defendant This is not like the Case of Obligors being bound to pay to the Obligee 10 l. or enfeoff him of the Mannor of S. he ought to make tender of the Monies and in the other Case he oughâ— to tender that he will make a Feoffment because all comes from the Defendant 6 H. 7.4 as in this Case The Plaintiff replies J. S. was of his Counsel and no more and he made such advice which advisement the Plaintiff notified to the Defendant so it is good ibid. If I am bound to make you such an assurance as J. S. shall devise I am bound at my peril to procure notice but if I am bounden to make such assurance as your Counsel shall advise there notice ought to be given to me 1 Leon. p. 105. Case 141. in Atkinsons Case A Condition to perform Covenants Breach assigned whereas the Covenantor covenanted with the Covenantee that he at the costs of the Covenantee would assure such Lands unto him before such a day that the day was past and no assurance tendred by the Covenantor not costs by the Covenantee Per Cur. the Covenantor is to make the assurance and to give notice what assurance he will make and his readiness that the other may know what Costs to tender Crook Eliz. 517. Hallings and Connard The Covenantor ought to do the first act viz. notifie the Covenantee what manner of Estate he will make so that the Covenantee may know what Sum of Mony to tender and it is all one whether the Covenant be general or particular as to make a Feoffment c. and so if nothing were done before the day the Obligation is forfeited 5 Rep. mesme Case 22. b. The Obligor having election what manner of assurance he will make ought first to give notice to the Obligee that he will make such assurance More n. 595. mesme Case W. covenants for himself his Heirs Executors Administrators and Assigns within seven years upon Request to convey to the Plaintiff a Copyhold Estate for life W. dies a Request must be made to his Executors though W. was seised in Fee the Executors are bound to see it done 2 Bulstr 158. Thursdens Case A Condition to perform Articles one was the Defendant covenanted before such a Feast to make to the Plaintiff and his Wife a Demise of c. Hebendum immediately after the death of E. F. for 30 years if E. W. to this assent then Habend after the death of E. F. for 21 years The Defendant pleads E. W. denied his assent and farther that the Plaintiff did not require the Defendant to make him the Lease for 21 years Demurrer and Judgment pro Quer. For the Plaintiff need not make Request but the Defendant at his peril ought to have made the Lease for 21 years before the Feast 1 Anders n. 124. f. 49. Henry Cage versus Tho. Furtho The Condition is if the Obligor make all reasonable Acts c. which shall be for assurance c. to be required by the Obligee before such a day c. a general Request is sufficient Aliter if the assurance were to be advised by the Obligee or his Counsel there he must shew he had required such a particular assurance as Fine c. and as to this the Case was thus The Condition was if the Defendant before M. do make acknowledg and suffer c. all and every such reasonable Acts and things whatsoever they be for the good and lawful assuring and sure making of the Mannor of D. to J. S. and his Heirs that then c. The Defendant pleads that before M. the Plaintiff rationabiliter non requisivit le def ad faciend c. aliqua rationabilia actum acta quae forent pro bona legitima assurantia del mannor de D. c. The Plaintiff replies that such a day before M. he requested the Defendant quod ipse conveiret assuraret manerium de D. al J. S. c. secundum tenorem conditionis And Issue found pro Quer. Moved in arrest of Judgment that there was no sufficient Breach for that the Plaintiff ought to have required an assurance in certain viz. Fine or Feoffment but per Cur. the Condition is broken for by the Condition the Defendant is to do all and every act whatsoever c. so that if the Plaintiff request a Fine Recovery Feoffment Bargain and Sale the Defendant ought to do all but not to make any Obligation or Recognisance for the enjoying the Mannor for that is but collateral Security and not any Assurance Then when the Plaintiff requests the Defendant to convey the Mannor in the generality the Defendant ought at his peril to do this by some kind of Assurance and if upon this Request the Defendant makes a Feoffment of the Mannor yet if after this the Plaintiff request a Fine he ought to acknowledge a Fine also and so upon every several Request Yelv. p. 44. 1 Brownl p. 84. More n. 889. Pudsey and Newsam The Condition was to make an Estate of Inheritance to the Obligee at such a day and place The Defendant pleads he was ready at the day and place to make it c. The Plaintiff demurs Per Cur. ill Plea he ought to have shewed that he gave notice what Estate of Inheritance he would make him Stiles p. 61. Allen p. 24. Brook and Brook 5 Rep. 22. If a Man be bound to make a Conveyance of certain Lands if a Warranty or Covenant be put into the Deed he is not bound to seal it 1 Rolls Abr. p. 424. sect 13. The Condition is to make such Assurance to the Obligee as the Obligee shall devise and after the Obligee deviseth an Indenture and tenders this to him and he requires time to shew it to his Counsel he must seal
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
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.
of the Award Per Cur. it s well enough and all being intended to be done at one time the Obligation is not thereby released 2 Keb. 163. Gulthorp and Meers The Defendant in Oyer pleads the intermarriage of the Feme with the Plaintiff before the Award The Defendant demurs Per Cur. Marriage was her own Act and was a Revocation of the power given to Arbitrators 2 Keb. 865. In Debt on an Obligation to perform an Award there all the Arbitrament ought to be pleaded but in Debt on the Award he may shew part of the Arbitrament which is the ground of the Action Lit. Rep. 312 313. Leak and Butler After Consilium on Demur the Court gave leave to discontinue 2 Keb. 618. Roberts and Marriot In Debt on Bond to perform Award or Covenant If Mony be awarded or covenanted to be paid of value they require special Bail Aliter if to do any Act which is of it self uncertain as to have frees 1 Keb. 450.2 Keb. 73. Keind and Carter Apprentices Bonds A Condition that his Son should render 10 C. his Master a just account de omnibus monetis bonis c. without imbezilling any away and that if he did imbezil any thing upon due proof made of this he would pay the same to him within three Moâ— after demand Per Cur. before payment ought 〈◊〉 precede Account and Arreares and in this Aâ— Proof ought to be made and he must give notice to the Defendant 1 Bulstr f. 40. Cockain and Goâ—dloge On Covenant and declared that the Defendant by his Deed shewed in Court did covenant to satisfie him all such Sums of Mony c. as J. his Son the Plaintiffs Apprentice should imbezil from him within three Months after Requst and then lays the Imbezelling and Request c. The Defendant prays Oyer of the Deed which was entred in haec verba and there the Covenant was to satisfie within three Months after Request and due Proof made of such embezelling Issue was whether he embezilled and found pro Quer. Judgment was arrested because it appears by the Entry of the Deed that the Plaintiff ought not to have brought his Action till the 3 Months were encurred as well after Proof as after Request whereas the Plaintiff had averred no Proof in the Declaration And per Cur. the word Proof generally laid shall be understood a Proof judicial by Jury Confession or Demurrer in Court but if the form of Proof were by the Writing appointed otherwise that should prevail as by Witnesses before two Aldermen by Certificate c. Which Proof shall be set down in the Plea with all the Circumstances and then it shall be given in discretion of the Court whether that Proof were competent according to the meaning of the Writing But in this Case because the word Proof is left at large and may be made in Court judicially in an Action brought against the Apprentice before the Action brought on this Covenant made by another it may be well in this Case taken of a Proof by Tryal in Court and so iâ— every way against the Plaintiff Hob. p. 217. Crookhay and Woodward Vid. 2 Rolls Rep. 40. Leâ— and Finch Crâ— Jac. 488. Lee and â—dge Condition was that if he did waste his Masters Goods and that this should be proved by Confession under his Hand in Writing or otherwise and if within three Months after satisfaction was not made to him then the Bond to be in force Per Cur. where the Proof is general there it must be by Jury in the Action otherwise where the Proof is with a reference to time and before persons certain or he did confess it in this Case Judgment pro Quer. Cro. â—l p. 723. Cardinal and Hesket Cro. Jac. 381.1 Rolls Rep. 222 261. Hob. p. 91.3 Bulstr 55. Gold and Death 1 Leon. n. 344. f. 206. Cro. Eliz. 236. Tedcastle and Hallywel Though he confesseth yet it must be averred that he did embezil 2 Rolls Rep. 40. Vid. Cro. Jac. 488. Lee and Fidge The Contract or Indenture for having or retaining an Apprentice contrary to the Statute is void but if such Apprentice give Bond to deliver up a true and just account of Merchants Wares the Bond is good it being for a collateral matter the Bond is good and out of the Statute 3 Bulstr p. 179. Bennet and Benfield In some Cases it is Wisdom to pray the Court leave to discontinue the Suit otherwise the party would be utterly barred of his Bond Cro. Jac. p. 488. Lee and Fidge A Bond not to use a Trade in D. if good Vid. priâ— A Stranger is bound that such an Apprentice shall transport Waâ— make Accompts and pay Mony The Obligee reâ—th by Deed to the Apprentice and not to the Obligor By this the Obligation is saved if the Release be made before any Forfeiture aliter if after because the Obligation once forfeited cannot be saved by any Release made to a Stranger 3 Leon. p. 45. Anonymus Though an Infant may voluntarily bind himself Apprentice yet neither at Common-Law nor by Stat. 50 Eliz. a Covenant or Obligation of an Infant shall bind him if he misbehave himself the Master may correct him or Justices punish him Cro. Hill 5 Car. fo 179. Gilbert and Fletcher The Condition was of three parts 1. If he well served the Plaintiff 2. If he duly accounted 3. If he should make satisfaction in three Months after notice Breach is that upon account he was found 60 l. polish Mony in arrears which he converted to his own use and so not well served him and good for it is a Breach of the first part for every part is several by it self Cro. Eliz. p. 830. Cutler and Brewster Condition was that if an Apprentice turned over should wast the Goods of his Master the Defendant would pay what the Master is dampnified and plead Nul damage The Plaintiff sets forth Breach in wasting Goods no notice need to be given to the Defendant If any one undertakes for a third person he must answer for him at his peril and the particulars of the Goods wasted need not be set forth but say to such a value 1 Keb. Hill 14 15 Car. fo 467 471. French versus Paitoâ— Condition to teach and employ his Apprentice in his House and Service in the Art of Chirurgâ— for eight years The Master sends him a Voyage to the Indies The Defendant pleads he did it for the â—ter instruction of his Servant The Plaintiff 〈◊〉 mâ— and Judgment pro Quâ—r That the Defendant could not send his Apprentice out of England except he went with him but to any other part of England he may 1 Bulstr p. 67. Covenâ—ry and Weedal 1 Rolâ— Abr. 427. sect 2. Id. Case C. as Executor of C. port Det sur Oblig vers S. the Case was The Testator had put himself Apprentice to S. for seven years and S. bound himself to pay to his Apprentice his Executors c. 10 l. at the time of the
Paine On a Bond made to a Bishop Parson Vicar Master of an Hospital or other sole Body Politick the Executor or Administrator shall have this Action Except in the case of the Chamberlain of London where it goes to the Successor and so in the case of a Corporation aggregate Dean and Chapter Mayor and Comminalty the Successor shall have the Action 4 Rep. 65. Fulwood's Case Cro. Eliz. 480. Bird and Wilsford Per two or three to whom the Obligation is made IF Obligation be made to three and two bring their Action they ought to shew the third is Dead Siderfin p. 238. Osborn and Crossborn But in Whelpdales Case This advantage was waived on non est factum pleaded Also the Obligation being Obligamus nos it shall not be intended the others did not Seal but if they had not the Count should have been on writing by three whereof two did not Seal 1 Keb. 840. Mesme Case If two or three are bound joyntly and one dies the Executor of him that is dead is altogether discharged And the Action may not be brought against the Survivor and the Executor Siderfin p. 238. Osborns Case Debt versus Excutor Plaintiff profert joynt Obligation without saying jam defunct Q. if this be saved upon a General Demurrer If the Executor had been Plaintiff in Debt upon such Obligation he ought to have said jam defunct to entitle himself to this his Action Siderfin p. 272. Osborns Case Obligation made to three to pay Mony to one of them they ought all to joyn in the Suit for they are all as one Obligee and if he which ought to have the Mony dye the Survivors ought to Sue tho' they have no interest in the sum contained in the Condition Yelv. p. 177 Rolls and Yate By Baron and Feme THe Husband after she Marries must joyn with her in the Suit where the Bond was made to the feme dùm sola fuit for if cause of Action arise before Coverture tho' but Trespass where damages are only recoverable they must joyn 1 Keb. p. 440. Hardy and Robinson Upon such Bond made to the Wife dùm sola fuit by the Husband only Judgment staied 37 Ass 11. If Bond be made to a Feme-covert and the Husband disagree in Action brought the Obligor may plead non est factum for by his disagreement the Obligation is no Deed. 10 Rep. 119. Whelpdales Case On Bond made to Baron and Feme Feme Administers and brings Debt upon the Bond as Administratrix she dies before Judgment her Executors cannot bring Debt upon that Obligation for she hath waved it and that personal duty being a thing in action may well lie in Joynture between Baron and Feme aliter of other persons Noy p. 149. Norton and Glover By Alien ON Bond made to an Alien Enemy he may have an Action for personal things More n. 852. Walford and Marsham F. makes a Bill of Debt to A. by which F. acknowledges to have received of one P. 40 l. to be equally divided between A. and B. and to their use Per Cur. B. need not joyn in the Action tho' Tenants in Common ought to joyn in personal Actions for they are several Debts as 20 l. to one and 20 l. to the other Yelv. p. 23. VVhorewood and Shaw By Executor or Administrator AS to Suits brought by or against Executors that more properly belongs to another Title in our Law and the Pleadings stand altogether upon other Reasons Yet I shall say something here so far as refers to Obligations as to Payment Satisfaction Release Gist of the Action and the like Two Men made an Obligation joyntly for Debt the principal made his Surety his Executor who pays the Mony generally Q. if he paid it as Executor or as Obligor 3 Leon. p. 197. Carter and Marten B. As Executor brought Debt upon Obligation made to his Testator the Defendant Pleads he paid a lesser sum to the Testator and that he did accept thereof in full satisfaction per Rolls you may Traverse either the payment or the acceptance of the Mony but more proper to joyn Issue on the payment Stiles p. 239. Bois and Cranfeild Executor port Debt on Bond in the debâ—t detinet and had Judgment by Default but it was Reverst because it ought to have been brought in the detinet only Stiles p. 278. Lydall and Lister Administrator Sues J. S. upon Obligation and had Judgment and after the Administration is revoked yet the Plaintiff took the Defendant in Execution And upon motion the Execution was adjudged void and the second Administrator shall not have Execution for he is no party to the Record Yelv. p. 83. Barnhurst versus Sir Charles Yelverton Six Executors brought Debt named in the Writ after three were summoned and severed the other three bring Debt upon a Bond the Defendant Pleads non est factum and found against him Per Cur. there needs no mention of the other three who were severed Cro. Car. 420. Price and Parkhurst Debt port by Executors upon an Obligation the Defendant pleads payment of the Principal and Interest to one of the Executors of 18 years and a Release by him no good Plea for he not being at Age could not Release except he had the entire Forfeiture the Chancery in such case will releive Cro. Car. M. 13. p. 490. Kniveton and Latham Debt by Baron and Feme Exacutrix upon a Bond made to the Testator Upon non est factum pleaded it s found to be made to the Testator and another Judgment pro Querente The matter of variance goes but in Abatement and cannot be pleaded in Bar 5 Rep. 119. If the Defendant in this Case had demanded Oyer and caused it to be entred in haec verba he might have Dâ—murred to the Declaration and the Court ex officiâ— ought to have abated the Bill Allen p. 41 42 Holdwych and Chafe In Debt by Executor after imparlance the Defendant shall not have Oyer of the Testament or of the Obligation or other Deeds Q. de hoc doct placitandi 272. Two Executors made Partition of the Testators Specialties and then one of them did release to the Debtor an Obligation which did appertain to the part of the other the Debtor having notice of the Partition between them the other Sued in Chancery for relief Chancery would not relieve him but if the release were obtained by Covin for a lesser sum than the Debt was the Debtor should satisfie the overplus More n. 802. A. Administrator of B. de bonis non per G. against H. and Avers that H. had not paid it to B. nor to A. not saying he had not paid it to C. its good enough for the Declaration is quas ei injuste detinet which per Cur. cannot be if it were paid to C. Also this lieth on the part of H. to plead in discharge of himself 1 Keb. 232. In Debt on Bond per B. Administrator de bonis non of G. The Plaintiff saith the
Executors of G. naming them were dead not saying intestate and if any Executor made his Executor the Plaintiff is not sufficiently intituled Non allocatur per Cur. the Defendant ought to shew there were Executors Judgment pro Quer. 1 Keb. 480. Burgess versus Clayton Against Executor or Administrator DEbt on Bond against B. Executor Defendant acknowledgeth the Bond but saith he gave another Bond in satisfaction of that Bond unto the Testator which the Testator did accept in satisfaction Ill Plea one chose in Action cannot be in satisfaction of another Stiles p. 339. Crook and Vernon Debt against J. B. and M. his Wife Executrix of her first Husband upon Bondâ— Defendant Pleads thus praed J. and M. per Atternat say that they were divorced before the Writ purchased On Demurrer adjugded that the Writ shall abate Crook Eliz. 352. Underhil's Case The Plaintiff brings two Obligations of 20 l. a piece against the Executor whereas one was not due and Damages were given for both entirely but it s no Error for it was only an allegation of the Defendant and it did not appear and the Defendant rested not upon it but pleaded another Plea viz. a request to make a Release and Issue upon that If the Plaintiff Sue one as Executor joyntly with the true Executor who is not Executor this is not in Abatement of the Bill or Writ but only that he shall be barred against him and so not Error Crook Eliz. p. 110. Thiâ—kettle against Reve. The constant difference is where Executors bring the Action all must be named but an Action brought against them may be against such only who do Administer and unless it be averred that he did Administer the Defendant cannot plead this Plea in Abatement and therefore in 1 Keb. p. 865. Swallow against Emerson In Debt upon a Bond the Defendant pleaded that there was another Executor not named and yet living and doth not say that he did Administer The Plaintiff Demurred and Judgment for the Plaintiff Debt against the Defendant Executor of one joynt Obligor Defendant pleaded in Abatement that it appears the Obligation was joynt sed non allocatur for it appears not that the other Sealed nor that the other Survived in which case the Executor would be discharged the Plea was concluded quod billa cassetur and it begins with Judgment de billa but the body of the Plea is a general Demurrer which per Cur. is a plain bar to the Declaration here being no Plea in Abatement only the form begins and ends in Abatement but there is no other form to a Demurrer to a Declaration In Abatement it should be si ad billam prad respondere debet for praecludi non is replication to a Plea 3 Keb. 672. Bager and Ash Against Baron and Feme ON Obligation made by a Feme Covert she shall plead she was Feme Covert â—nd conclude Issint non est factum because it was void 14 H. 4.30 Debt port against J. S. and Elianor his Wife upon Bond made by the Wife Defendants plead quod tempora confectionis and â—ew the day she was Feme Covert Plaintiff confesseth this but saith she Sealed the â—ame Deed the same day of her Marriage before her Espousals in the Morning Defendant Demurs Plaintiff had Judgment 2 Rolls Rep. 431. Jacksons Case Feme Obligor of full Age takes Baron within Age In Debt on Obligation they pray his Age but denied Noy p. 96. On Obligation made by the Wife dum sola Issue is found against them per Popham the Capias shall only be against the Wife Noy 13. Amson and Stockburne on non est factum Judgment must be quod capiantur More n. 93â— Bardolph and Perry Plaintiff declares of Obligation made by the Wife dum sola fuit the Writ must be in the debet detinet for the Baron hath the Goods of the Wife in his own right 5 Rep. 136. 3 Leon. p. 206. Walcotts Case Against an Infant Vid. supra titulo What Persons may 〈◊〉 may not make Obligations Against a Body politique IF one will charge Mayor and Comminalty they must both be bound If one oblige himself by the name of Major and Comminalty the Comminalty is not bound and no Goods of the Comminalty shall be put in Execution So it is of Dean and Chapter aliter of Abbot and Prior for they are bound tho' the Covent be not bound 3 H. 7.11 Prior Obligor is made Abbot Action of Debt is maintainable against him 9 H. 7.16 b. Prior of Baths Case Against two or three Obligors IF three are bound and the Action is brought against two the Plaintiff ought to shew that the third is dead If two or three are bound Joyntly and one dies the Executor of him that is dead is altogether discharged Siderfin p. 238. Ofborn's Case Debt on Obligation against one and upon Oyer he and two others were Joyntly bound Demurrer and Judgment pro Querente that the Declaration is good and it shall come on the other part to swear that there is another named in the Lien who is not named in the Writ Siderfin p. 420. Chappel and Uaughan Though two others are named yet it appears not that they put their Seals to it and so the Obligation is single but if the truth were that the other two had Sealed as well as the Defendant then the Defendant if he would take advantage of this ought not to have Demurred upon the Oyer but he ought to have pleaded in Abatement that the two other Persons Sealed the Obligation who are yet in full Life and so pray Judgment of the Bill 1 Sanders Trin. 21 Car. 2. f. 291. the same Case 3 Crook 494. 5 Rep. 119. Three are bound joyntly and severally upon Action brought against two the Defendants ought to shew that it was made by them and others in full life not named in the Writ because the Court shall not intend the Bond was sealed and delivered by all that are named in it therefore the Defendants cannot demur upon it though it be entred in haec verba So it is if an Action be brought upon a Recognizance taken before the Mayor and Recorder c. by Stat. 23 H. 8. because there the parties must seal But in Scire facias against three Ballees upon a Recognizance acknowledged by them and the Principal joyntly and severally Upon Demurrer the Writ abated because this being founded upon a Record the Plaintiff ought to shew forth the cause of the Variance from the Record as that one was dead Allen p. 21. Blackwell and Ashton Four are bound by these words Utrumque nostrum the Obligee may charge any of these severally but if he will have a Joynt Action against two of the four the Writ shall abate Three are bound joyntly and severally Obligee cannot bring Debt against two 10 H. 7.16.27 H. 8.6 Debt on joynt Bond against the Survivor The Defendant pleads one of the Obligors died and the Plaintiff afterwards released to the
Obligatorium concessit nor any Writing mentioned in the former part of the Declaration Sed non allocatur The Writings are produced and the Defendant by his Plea shews it 's an Obligation with Condition and it appears to the Court that the Plaintiff hath a just Debt and good cause to recover Cro. Car. 209. Sir William Courtney's Case In Debt sur Bond the Defendant confess'd the Action and because it 's not said in the Declaration Hic in Curia prolat ' it was adjudg'd a fault in Matter and Error Cro. Jac. 32. Dawbenny and Bannister Vid. le noveâ— Statute If a Bond be made to one and he doth not say in the Bond it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him tho' not expressed in the Bond 1 Brownl 72. Anonymus If any of the Bond be received it must be acknowledged in the Declaration Debt on two Obligations one was 100 l. the other 110 l. and he brought an Action generally of 200 l. upon these Obligations and acknowledgeth satisfaction of 10 l. but sheweth not of what Obligation it was that he acknowledgeth the payment of 10 l. it s no Error 1 Rols Rep. p. 423. Hale and Malyâ— vid. 3 Bulstr p. 244. Plaintiff declares upon a Statute Obligatory Solvendum upon Request and on Oyer it appears to be payable at a day certain Incurable fault Crook Jac. 316. Fox and Inkes Debt upon a Bill of 14 l. Solvendum 〈◊〉 cum 6 l. upon Account between them the Plaintiff only declares for 14 l. and good for that which comes after the Solvendum is void Crook Eliz. 537. Woodward and Parry Declaration is upon three several Obligations and upon Oyer of the several Conditions it appears one of the sums in the Condition was payable after the Bill exhibited Issue was joyned on Conditions performed and Verdict for the Plaintiff and intire Damages and upon Release of Costs and Damages Judgment was given for the two first Bonds only For tho' the Bill be an entire sum yet by the Court it appeareth they be as several Demands and Suits Hobart p. 178. Andrews and Delahay 1 Brown 68. Mesme Case One Declaration is naught After appearance the Plaintiff pleads de novo Noy p. 63. Rossiter and Bussey In B. R. the first Declaration was in Debt on Obligation 5 Feb. and the second was on an Obligation dated 15 Feb. and the pleading and Judgment was thereupon and held good for it was held as a Declaration without an Original which being after Verdict was ayded Crook Jac. p. 89. cited in Sir Michael Dormers Case Debt on Bond dated 13 Feb. The Defendant imparles and after a second Declaration was made and therein he declares on an Obligation dated 15 Feb. Defendant pleads non est factum it was amended and made according to the first Declaration for the first is the principal and the Plea always refers thereto Crook Jac. p. 105. Burrel versus Sir William Bowes Debt by Baron and Feme on an Obligation made to the Feme dum sola fuit and the Declaration is ad damnum ipsorum its good Stiles 134 Anonymus In Debt due upon a Bond or Contract there needs not a special Demand to be laid but licet saepius requisitus is sufficient Aliter if it were due by Arbitrement cum requisitus fuisset for then there must be a special demand Cro. Jac. 640. Waters and Bridges 1 Brownl 30. In inferior Court of Record 50 l. in figures is Error Stiles p. 165. Joson and Beale A thing that doth not intitle the Plaintiff to Action need not be contained in the Count. If the Condition be Endorsed or Subscribed it need not be contained in the Count but if it be contained before the in Witness then it ought to be contained in the Count. If a Man be bound to pay 10 l. when the Obligee carries 200 Load of Hay to his House there the Condition is precedent and it ought to be contained in the Count What comes after the in Witness be it a Proviso or Memorandum it may be as a Condition or Defesance and need not be contained in the Count 2 Brownl Rep. 97. Hammond and Jethro Be it known that J. C. bind me to R. in 40. l. to discharge and save harmless the said R. against W. Solvenâ— tali die c. there the Count is good generally without saying the Defendant had not saved harmless 22 Ed. 4.42 One ought to declare specially according to the Bill the Bill was to pay as I pay my other Creditors The Plaintiff declared generally that he was indebted to him in 5 l. Solvend ' upon request It s ill Cro. Eliz. 256. Bright and Metcalf Declaration for Outlandish Mony DEclares upon a Bill Obligatory wherein the Defendant was obliged to pay him â—00 Gilders of legal Mony Polonish viz ad valorem 220 l. legalis monetae Angliae and that the Defendant had not paid unto him the said 220 l. monetae Angliae nor the said 600 Gilders monetae Poloniae per quod Aâ—tiâ— accrevit c. Defendant pleaded non est factum and found pro Querente and the value of the Mony was enquired by the Jury viz. that the value of the 600 Gilders Polish was at the time of the Bill and now 220 l. The Action is well brought in the deâ—inâ— because he is to recover the value and the demand is not of any sum certain Cro. Jac. 617. Rands and Peck Cro. Eliz. 536. Bayshaw and Plaine Latch p. 4 77.8â— Wards Case The Court cannot compel the Plaintiff to set forth the Condition in his Declaration but till he doth it on Oyer demanded the Defendant shall not be compelled to plead Stiles 125. Sir Charles â—ot and Plunket On Oyer demanded unless the Plaintiff will shew the Bond the Court will set aside the Judgment as irregular 2 Keb. 275. Beadly and Beach When the Plaintiff counts on Bond it ought to remain in Court unless the Defendant after Oyer demanded suffer it to be delivered out then on non est factum the Court will not order it to remain there on prayer of the Defendant although anciently it hath been so 1 Keb. 486. Williams and Hulleâ— In Debt on Bond to deliver up Goods in a Schedule annexed per Cur. on demand of Oyer of the Condition they shall have also Oyer of the Schedule being all as one Dâ—ed but Oyer of Indenture for performance of Covenants shall not have Oyer of the Covenants but yet must set them forth and if he have no counterpart he may move the Court and obtain it 2 Keb. 4. Waterman and Adams Variance between the Obligation and Declaration DEbt on Bond the Plaintiff declares of a 1000 l. to be paid to him and the Defendant demands Oyer and he was bound to J. R. to be paid to J. K. to the use of J. R. The Defendant Demurs the Solvend ' to the Stranger is void and the Court seem'd
Judgment of the Bill for that the Plaintiff in the Obligation was named J. Thorny de F. in Com. N. Armig ' and in the Declaration was named J. Thorny Armig. and no more Respond ouster awarded Cro. Eliz. 312. Thornough and Disney After Imparlance one cannot plead in Abatement of the Writ Stiles 187. Weston and Plowden Per Stat. 6 R. 2. c. 2. it 's provided that the Original shall not be laid in one County and the Declaration upon a Bond made in another County if so the Writ shall abete But it s no good Plea to say that the Bond was made in another County than where it s alledg'd in the Declaration Allen p. 17. Shalmer and Slingsby If the Defendant pleads a Plea in Abatement as in Debt upon Bond that another was joyntly bound with him who is in full life not named and concludes in Bar Judgment shall be final against him Siderfin p. 189. Burden and Ferrars Debt on Obligation against the Defendant Knight and Baronet The Defendant pleads he never was a Knight in Abatement No Amendment granted but in Nil Cap. per Billam awarded because tho' the Defendant after Bail put in by himself generally he cannot plead in Abatement yet when the Bai is Special or put in by another he may plead in by Abatement Judgment pro Def. 2 Keb. 824. Sir William Hicks's Case Pleads that the Plaintiff puis darrein continuance was made a Baronet Cro. Car. p. 104. Simon Bennet A Plea may be a good Plea in Abatement though it contain Matter that goes in Bar Med. Rep. 214. In Debt sur Oblig ' against J. S. de S. it 's a good Plea to say that there are two Vills S. within the County and none without Addition 14 H. 6.8 a. In Debt sur Bond. The Defendant pleads that after the Writ purchased the Plaintiff had received parcel and shews the Acquittance the Writ shall abate in the whole and notwithstanding it 's a good Plea in bar as to this part Doctrina placitandi p. 5. Vide pluis in titulo Payment infra Payment of parcel pendant le Suite Two bring Debt on Obligation the Defendant pleads the Obligation was made to them and to one B. and that they three had an Action of Debt depending against him and demands Judgment si actio Demur And because the Obligation was made to two upon which they counted it cannot be intended an Obligation made to three and if it be a Plea it 's in Abatement of the Writ and not in Bar. Judgment pro Querente Cro. Eliz. Isham's Case Debt against J. S. de D. Yeoman It 's no Plea to say there are two J. S. of D. Yeom Sen. and Jun. and none without addition For the Action accords with the Obligation which is J. S. de D. Yeoman without distinction 9 H. 7.21 Pleas after Imparlance IN Debt on an Obligation the Defendant imparles till next Term after he may plead that the Plaintiff is Outlawed For the King shall have the Debt on Bond. Aliter in Trespass or Debt or simple Contract 16 Ed. 4.4 a. per Bryan Debt against J. S. de D. The Defendant imparles he may after say by Attorny Upper D. and Nether D. and none without addition 18 Ed. 4.9 21 Ed. 4.1 b. contr Variance between the Obligation and the Writ may be pleaded after Imparlance in another Term for the Bond always remains in Court but after Imparlance Variance between the Testament and Letters of Administration shall not be pleaded for the Testament shall be but once shewed in Court 36 H. 6. 32 33. 38 H. 6.2 19 H. 6.7 The Defendant Imparles till another Term and then he pleads Tender of the Mony at the day and place and that no person was there to receive it and that he is now ready and saith not Touts temps prist yet it 's a good Plea For he had excused himself of the Forfeiture by this Plea and no Estoppel shall be by the Imparlance to plead that he is now ready Doct. placitand 388 389. In Debt on Bond the Defendant imparles Specially scil salvis omnibus omnimodis advantagiis and after he pleads the priviledge of the Exchequer that he was Surveyor there Per Cur. he cannot plead so Siderfin p. 318. Trussel and Maddin 2 Keb. 103. A Plea in Abatement ought to be pleaded before Imparlance As the Defendant to Debt on Bond appears and imparles and after Imparlance pleads that he is Earl of Nova Albion in Ireland and ought to be impleaded by that Name Stiles p. 187. Weston and Plowden After Imparlance the Defendant pleaded in Abatement that one Vincent not named sealed c. It 's no Plea after Imparlance and a Respond ' uâ—ster awarded 2 Keb. 795. Putt and Nosworthy Debt for 300 l. The Defendant after a general Imparlance demands Oyer and pleads Specially it was but for 30 l. Non allocatur after general Imparlance then the Defendant pleaded Non est factum which was the proper Plea in the Case 1 Brownl p. 70. It was Ruled that after Imparlance in Debt upon Bond the Defendant shall be received to plead that he was always ready to pay tho' 13 Eliz. 306. Dyer seems contrary and was so urged Replicatio Querentis That the Defendant ought not to be admitted to plead a Variance between the Declaration and the Bond in abatement after Imparlance general Modus Intrandi p. 200. Obligations Pleadings Acceptance Coneord COndition to deliver twenty Quarters of Wheat The Defendant pleads that pendente billa the Plaintiff had accepted fifteen Quarter and demands Judgment of the Bill No Plea for it 's Collateral and not parcel of the Sum contained in the Obligation and if it be a Plea it is in bar and not in abatement Cro. M. 33 54 El. Stone versus Radish Issue is taken that he had not accepted now though it s no Plea and so no Issue yet it s helped by the Statute of Jeofails and the Plaintiff had Judgment Cro. El. p. 260. M. 33 34 El. Andrews and Kinck Debt pro. 7 l. the Defendant pleads solvit ad diem The Jury find 50 s. parcel of it paid and that the Defendant then delivered to the Plaintiff certain Hats to the value of the residue which he accepted It was Adjudged against the Defendant for this is no payment he might have pleaded it specially Cro. M. 35 36 El. Tiblethorp and Hunt Debt fur single Bill The Defendant pleads he enfeoffed the Plaintiff of Lands in satisfaction of that Debt The Plaintiff demurs Per Cur. it 's a naughty Plea to a single Bill otherwise had it been upon a Bond with a Condition to pay Mony 1 Brownl 70. Glyver and Lease Debt sur Bond The Defendant pleads another Bond given to the Plaintiff in satisfaction of that Bond and acceptance at the day of payment Ill Plea for one chose in Action cannot be given in satisfaction of another unless it were payable at a day before the
Release to the Obligor dated the first of March and delivered the first of June by which he releaseth all Actions ab origine mundi until the date of the Release Per touts Justices the Obligation is not released Cro. Eliz. p. 14. Sir William Druries Case T. J. Doth acknowledge himself fully satisfied and discharged of all Bonds Debts or Dues whatsoever by T. O. this acknowledgment by Deed is in Judgment of Law a Release of all Bonds tho' the word Discharge is not properly said of the part of Obligee but of the Obligor 9 Rep. 52. b. Hickmots Case Debt on a Bond not forfeited at the day of payment being not then come the Defendant Pleads a Release and found against him in Arrest of Judgment it was adjudged for the Plaintiff for the Defendant did not take advantage of it as he might but waved it and pleaded a collateral matter which was found against him Cro. Eliz. 68. Frishi Case Debt on Bond dated the 24 of June 9 Cor. The Defendant pleads that the Plaintiff the 22 of Feb. 10 Car. Released to him all Actions and Demands which he had c. to the day of the date thereof The Plaintiff demands Oyer of the Release which was a Release of all Actions unto the 14 of January before the date of the Release for this misprision the Plea was adjudged ill Cro. Car. 426. Dyer and White A Man may not release a personal thing as an Obligation upon a Condition subsequent but the Condition will be void because a personal thing once suspended is extinguished perpetually but a Man may release it upon a Condition precedent for there the Action is not suspended until the Condition performed 1 Rols Abr. p. 412. Barkley and Parkes adjudged on Demurrer Where the Release was of an Obligation with a Proviso that he who releaseth this might enjoy 120 l. due by J. S. to the Obligor at a day to come then after which the Court adjudged a Condition precedent because the 120 l. was not due at the time of the Release but at a day to come 1 Rols Ab. 415. Mesme Case In Debt on a Bond of 200 l. for payment of 104 l. at a day on Oyer and Entry of the Bond and Condition The Defendant Pleads the Plaintiff did Release praedictum scriptum Obligatorium by the name of an Obligation in 200 l. for the payment of an 100 l. It s not a good Plea tho' it was averred there was no other Bond made by the Defendant to the Plaintiff for tho' a greater sum includes a Lesser as to tender yet the Debt and Duty is entire and therefore cannot be discharged by a Release of a lesser Sum Allen p. 71. Chace and Gold T. G. Covenants with another that B. A. a Stranger shall pay to A. a Stranger and the Covenantee 10 l. per Annum A. the Stranger takes Buck to Husband who releaseth the payment he cannot Release it for this was not any Debt or Duty in Buck or his Wife they had nothing in it nor remedy but for non-payment the Covenantee shall have an Action of Covenant Rols Rep. 196. Quick and Harris Bond taken in the name of the Plaintiff as Trustee for the younger Brothers from the elder Brother Conditioned to pay younger Brothers Portions The Defendant pleads a Release of all Actions Suits and all Debts on the Plaintiffs account Per Cur. it must be intended of all Debts whereof he hath the sole disposition and so he had not here Judgment pro Querente 2 Keb. 530. Stokes and Stokes Debt on Obligation Conditioned to perform Covenants in a Lease for years The Defendant pleads Conditions performed The Plaintiff assigns a Breach of non-payment of Rent The Defendant to this rejoyns a Release of all demands and per Cur. the Rent is not released by this being a Rent Executory and not a sum in Gross and Judgment pro Querente Siderfin Hen and Hanson Two are bound joyntly and severally a Release to the one Obligor is a Discharge to the other but a Release to an Executor of a joynt Obligor is void Cro. Car. 551. Dennis and Paine 1 Keb. 936. Scot and Littleton The Defendant pleaded that he was bound in the Bond simul cum R. G. to whom the Plaintiff had released all Actions and demands the said first of May which was the date of the Obligation the Plaintiff by Replication shewed that after the Obligation Sealed by R. G. he released to him and that afterwards the same day the Plaintiff Sealed the Bond This Release per Cur. doth not discharge the Defendant Cro. Eliz. p. 161. Mannings and Townsend Two are sued joyntly and severally the Obligee brings Action against the one and makes a Retraxit of his Suit Q. if this Retraxit is in nature of a Release and so if pleaded it be a Bar to Sue the other But in Cro. Jac. 211. Beechers Case it s an absolute Bar had it not not been for other faults in the entry Cro. Car. 551. Dennis and Paine March 95. Mesme Case Two are bound Obligee releaseth to one provided that the other shall not take benefit of this Release it s a void proviso Lit. Rep. 191. Debt on Bond the Defendant pleads a Release of all Actions and Suits in Bar. The Plaintiff demands Oyer and an exception of one Bond was therein contained The Defendant replies that was the Bond in Suit and that the sum excepted and the person are all one the Defendant demurs for Actions and Suits being released serve to no purpose the Obligation being excepted Per Cur. the Obligation it self being excepted all Actions and Suits concerning it are also excepted Cro. Eliz. 726. Brook and Wheeler The Defendant pleads a Release and sets it forth c. to be fully satisfied all Bonds Debts and dues c. and that he the Obligee is to deliver all such Bonds as he hath yet undelivered to T. O. the Obligor except one Bond of 40 l. yet unforfeited which is for the payment of 22 l. and wherein the said T. O. and R. O. his Brother stand bound to him and saith that he ought not to be barred for the Obligation of 40 l. so excepted and the said Obligation hic in Curia prolat ' are one and the same Resolved that the said exception shall extend to all the Premisses and not only to the clause of delivery But by the Plaintiffs confession in his Replicacation it appearing the Bond excepted was joynt and he bringing it against the Defendant only hath abated his own Writ 9 Rep. 52. Hickmots Case Release of an Obligation bearing date the same day and the Release is of all c. usque ad diem datus this doth not discharge the Obligation 2 Rol. Rep. p. 255. Green and Wiloox The Plaintiff and Defendant submitted themselves to Arbitrament and it was Awarded that there should be a Release made of all Reliefs Duties and Amerciaments and this Release pleaded in Bar to Debt
be in words not Material yet the Deed is void But if a Stranger without his privity alter it in a place not Material it shall not be void and so in the Principal Case the Addition being in a Point not Material per a Stranger Judgment pro Querente Benedict Winchcombe's Case If the Deed be razed in the Date after the Delivery it goes to the whole 5 Rep. 23. Mathewson's Case If two are bound in a Bond and the Seal of one is broken off this Misfeazance ex post facto shall avoid the Deed against both 11 Rep. 27. Henry Piggot's Case The Defendant pleaded Non est factum Testatoris A Special Verdict was the Testator was bound in that Bond with two others joyntly and severally and that afterwards the Seals of the two others were eaten with Mice and Rats The whole Deed is avoided by this for it is not the same Deed and whereas it was joynt at the first now if the Deed should stand good against the Defendant only it should be his Bond only It is not an Obligation joynt and several but joynt or several at the Election of the Obligee for he cannot use both and when by his own Lachess he hath deprived himself of his Election the whole Bond is gone But in Mathewsons Case 5 Rep. the 100 l. are several and not joynt and therefore if the Seal of one is torn off it shall not avoid the Deed as to the others and there if the Covenantee Release to one of the Covenantors it shall not discharge the others March Rep. 125. Bayly and Garford The Defendant pleads that it was Sealed by him and one W. C. and that after the Sealing the Seal of W. C. was worn off and after reaffixed per quod scriptum praedictum vacuum in lege existit Per Cur. it s better to plead this Special matter than non est factum Noy p. 112. Gomersal and Wood. The Defendant pleads that at the time of the delivery there was not any day written in the Deed but a space left and after the delivery the Plaintiff put in a day and issint non est factum The Plea had been better to have set forth the Special matter per quod scriptum praedict ' perdidit effect ' Judgment si actio Moren 8. The Issue was non est factum the Jury did find the Defendant did Seal and Deliver it but that after the day of the Issue joyned the Seal was pulled off from the Obligation Judgment pro Querente Cro. Eliz. p. 120. Michels Case The Defendant pleads quod factum praedict ' was made and delivered without a date and afterwards the Plaintiff put a date thereto and issint non est factum it s an ill Plea For he first confesseth it to be his Deed by saying factum praedictum and afterwards denies it he might have said non est factum generally Cro. Eliz. p. 800. Cosper and Turner If one confess an Obligation and pleads acquittance he shall not conclude issint non est factum but Judgment si actio 1 H. 7.15 The Plaintiff counts on Bill Obligatory made by the Defendant to him the Defendant pleads non est factum the Jury find the Bill was a joynt Bill made by the Defendant and another to the Plaintiff Per Cur. it s an ill plea but he might have pleaded in Abatement of the Writ 5 Rep. 119. Whelpdales Case The Defendant pleads the Obligation was made to another and not to the Plaintiff its ill for it amounts to non est factum Siderfin p. 450. Gifford and Perkins 2 Keb. 633. Mesme Case The Defendant pleads non est factum Jury in Special Verdict find the Bill in haec verba Whereby it appears that the Defendant and J. S. Sealed the Bond and were joyntly obliged and the said J. S. yet alive Per Cur. adjudged pro Querente Cro. Jac. p. 152. Stead and Moone Three are bound conjunctim and divisim in an Action against two of them they may plead non est factum 14 Eliz. Dyer 310. A Stranger to a Deed shall not plead a Special non est factum as that the Seal is severed from the Deed and issint c. but he ought to plead riens passa per le fait 1 Rols Rep. 188. More and Waldron If the Deed of another be pleaded against a Stranger he may not plead non est factum 20 Ed. 4. 1. a. If an Obligation be delivered to another to the use of the Obligee and this is tendered to him and he refuseth it now the delivery hath lost its force and the Obligee may never after agree to this and therefore the Obligor may say non est factum So if the Obligation be made to a Feme Coverr and the Baron disagree to it the Obligor may plead non est factum for by the refusal the Bond hath lost its force and becomes no Deed 5 Rep. 119. Whelpdales Case 1 Anderson 4 Tawes Case The Defendant pleads that he was Illiterate and that the Bond was fasly read to him and further that this was delivered as an Escrow and the Condition not performed and issint non est factum this per Cur. is not double because he concludes non est factum 38 H. 6. 26 27. Pleading non est factum upon delivery as an Escrow and Conditions not performed vid. supra Title Delivery If a Man be Illitered and the Deed is not read to him or read in other words or the effect declared in other form then is contained in the Writing he shall avoid this and plead non est factum 2 Rep. 9. Thoroughgoods Case If a Man be Lettered and is Blind and the Deed is read to him in other manner he shall avoid the Deed. C. is bound to pay Mony to two joyntly one dies the other Survives and dies and makes Executors Executors brings Action versus C. and declares on the Bond made to the Testator and another and Avers not the the Testator Survived The Defendant pleads non est factum Ill Plea for it was his Deed and the matter of variance goes to the Abatement of the Writ and not to the Action and it s too late for the Defendant to take advantage of it Stiles p. 78. Holdich and Chace If the Defendant had demanded Oyer of the Deed and entred it he might have demurred as to the Declaration Allen p. 41. Mesme Case Debt on Bond the Defendant pleads non est factum The Jury find Specially the Plaintiff declares on an Obligation dated the 24 day of the Month and they find the Obligation was sealed and delivered the 27 day but bears date the 24 day utrum this shall be accounted the same Obligation on which the Plaintiff declares It shall be accounted the same and this is a Plea in Bar and not in Abatement Stiles p. 414. Hill 1654. Leake and Reynolds So Goddard port Debt on Obligation made to his Intestate dated the 4 of Apr. 24 Eliz.
The Defendant pleads the Intestate died before the date of the Obligation and so not his Deed the Jury found the Defendant declared this as his Deed the 30 July 23 Eliz. But that this was dated as before and that the Intestate was living the 30 July but not the 4 of Ap. Per Cur. it is his Deed for tho' the Obligee in pleading may not alledge the delivery before the date for that he is estopt to take Averment against a thing exprest in the Deed yet the Jury are not so estopt Mistake of the date of an Obligation shall not hurt upon non est factum pleaded 2 Rep. 4. Goddards Case Debt on Bond which was set forth to be made the 15 of Nov. 25 Eliz. The Defendant pleads non est factum the Jury find Specially that it was dated the 15 of Nov. 23 Eliz. but it was not sealed and delivered till the 18 of Nov. 26 Eliz. Et si c. Per Cur. this Verdict is found for the Plaintiff the Issue being Generally non est factum it appears to be his Deed but peradventure by Special Pleading he might have helpt himself Cro. Jac. 136. Lady Lane versus Pledal Special Verdict find the Plaintiff hath declared on an Obligation made to himself only without speaking of any other joynt Obligee and that the Plaintiff as Survivor hath brought the Action on non est factum pleaded if it shall be said the Deed of the Defendant in manner as the Plaintiff hath declared Per Cur. the Plaintiff ought to have declared of the Special matter non est factum in this case is no good Plea for he hath not pleaded it respective as to the Obligation but Generally non est factum suum which refers to the Obligor only and the Issue is not whether he made the Deed to the Plaintiff or not but Generally whether he made it at all this Plea non est factum hath not any respect to the Obligee for if the Obligee be a Monk and be another person who bears the Name of the Obligee yet in such cases the Obligee cannot safely plead non est factum Aliter Where one is Sued who bears the Name of the Obligor 1 Leon. p. 322. Case 453. Dennis and St. John W. S. was bound to H. by the Name of J. S. and on that Obligation the Action was brought against him by the Name of W. S. and he pleaded non est factum and the Special matter was found and it was Ruled that upon the Verdict the Plaintiff should not recover but the best way for the Plaintiff was to Sue the Defendant by the Name by which he is bound and then if he appear and plead ut supra he shall be concluded by the Obligation 10 Eliz. Dyer 279. Bond on Covenants some are void and some are not how he shall conclude his Plea 14 H. 8.27 28. Sir Edward A. was bound in an Obligation by the Name of Sir Edmond and subscribed that with the Name of Edward In Debt brought against him he pleads non est factum Per Cur. he might well plead that for it appears that he is not named Edmund and the Original against him was Command Edward alias Edmond and that 's not good for a Man cannot have two Christian-names but if he hath another Name at Confirmation he must be sued by that 2 Brownl p. 48. Sir Edward Ashfeilds Case The Defendant pleads it was delivered as an Escrow and issint non est factum hoc paratus est verificare The Plaintiff demurs per Cur. this is a Plea that may conclude either way and is most usual with this conclusion tho' generally upon a general Negative Plea must be to the Country as non assumpsit infra sex annos Judgment for the Defendant 3 Keb. 142. Manning and Bucknal The Defendant saith tempore confectionis scripti there was J. P. the Father and J. P. the Son the Plaintiff in full life and that he sealed and delivered to J. P. the Father and not to J. P. the Son Judgment si actio it s a good Plea and he need not say non est factum against the Son 16 H. 7.7 vid. supra Siderfin 450. Giffords Case contra A Man was bound to Randolf and in Action brought he declares he was bound Randulfo The Defendant pleads non est factum and adjudged it was not his Deed for that Randulf and Randolph are two Names distinct per Co. in 1 Rols Rep. 271. cited in Lumlies Case Debt brought upon two Obligations the Defendant pleads non sunt facta or per minas its good by one Plea Noy 132. Dentons Case If the Defendant pleads non est factum and further demurs upon the Obligation the Demurrer is void per Prisot 35 H. 6.9 b. After non est factum pleaded the party shall give the Special matter in Evidence 11 Rep. 26. Piggots Case 2 Mary Dyer 112. Debt versus G. B. Executor of S. B. on a Bond made by S. B. the Defendant vim injur ' c. dicit quod scriptum praedictum non est factum suum There is no mention made of S. B. in all the Bar and therefore suum cannot refer to him but being after a Verdict and found to be his Deed. Pro. Querente Latch p. 123. Bakers Case Where a Deed is Enrolled the party may not plead non est factum but he may say Riens passa per le fait 9 H. 6.60 Upon non est factum pleaded and found against him that it was his Deed the Judgment was entred quod sit in misericordia where it ought to have been quod capiatur Per Cur. this is a manifest Error If the Executor plead non est factum misericordia shall be entred 2 Bulst 230. Jones and Cross 1 Keb. 196. Ellisons Case The Defendant pleads non est factum and at the Nisi prius relictâ verifications cognevit actionem Judgment that the Plaintiff shall recover and the Defendant in misericordia and not quod capiatur Noy p. 4. Bavage and Clarke Estoppels in Pleading Vid. Supra tit ' Estoppells COndition if Obligor pay all such sums which he was obliged to pay by his several Writings Obligatory The Defendant saith there was not any Wrintings Obligatory by which he was to pay any sum No Plea he is estopt to say so against the Condition More n. 75. Condition to pay all Legacies which J. S. had Bequeathed by his Will the Defendant shall be estopt to say J. S. made no Will but he may plead he gave not any Legacies by his Will More n. 555. Paramor and Daring Plea per duress vid. title duresse supra Pleas by the Heir to the Bond of his Ancestor Vid. supra titulo Actions of Debt against the Heir Outlawry Pleaded THe Defendant pleads Outlawry to the Plaintiff and concludes in Abatement The Plaintiff pleads null tiel Record the Defendant had a day to bring in the Record and failed and because it was in
Plea notwithstanding it was not shewed by what Process he had Execution because the Execution is on Record and shall be tried by the Record but if he paid the Monies in Pais to the Plaintiff and not in Court it is not an Execution of the Judgment Mo. N. 91. The Defendant pleads That the Plaintiff in the King's Court at Penwarth brought Debt upon this Obligation against T. who was bound with him in the said Bond joyntly and severally and recovered and had him in Execution and that the Gaoler voluntarily suffered him to go at large It was Demurred 1. Because he doth not shew the Court had power to hold Plea 2. The Plea is not good in substance for this Escape is no discharge of the Debt and therefore the Action lies against the other 5 Rep. 86. Blumfield's Case Cro. Jac. 531. Pendavis's Case Two bound joyntly and severally the Obligee brought Action against one and retraxit his Suit Q. If this be a Bar to sue the other Obligor But the Retraxit being pleaded in the Court of Record in Poele and it not being alledged that this Court had power to hold Plea per Patent or Prescription It is an ill Plea Jones p. 451. Dennâ— and Paine If a man be bound by an Obligation and afterwards promiseth to pay the Mony Assumpsit lies upon this Promise and if he recover all in Damages this shall be a Bar in Debt sur le Bond Co. Lit. p. 240. Ashbroke and Snape Venue Bond where Triable When the Obligation is made beyond Sea AN Obligation made beyond Sea may be sued here in England in what place the Plaintiff will as if it bears date at Bourdeaux in France it may be alledged to be made in quodam loco vocat ' Bourdeaux in France in Islington in the County of Middlesex and there it shall be tried for whether there be such a place as Islington or not is not Traversable Co. Lit. p. 261 b. One sues in the Admirals Court upon a Bond made in partibus Maritimis Virginiae and so he may if he will suppose the Contract in Virginia and if he will suppose the Contract in England he may sue here But if part of the Contract be here and part beyond Sea in Virginia or upon the Sea the Common Law shall have Jurisdiction 2 Rol. Rep. 492. Capp's Case Where part is to be done within the Realm and part out of the Realm the Plea ought to be Triable within the Realm Condition was for 40 l. to be paid within 14 days next after the Return of one Russel into England from the City of Venice The Defendant pleads in Bar that the said R. was not at Venice The Plaintiff demurs and it was Adjudged a naughty Plea 1 Brownl p. 49. Hales and Bell. Where the Condition contains Matter not Triable the Condition is void Mo. N. 201. The Issue was the Obligor was never at Rome but if the Matter is parcel Triable its good enough Molineux A Declaration upon a Bill dated in patoch ' Sanctae Mariae de Arcubus in Lond ' and upon Oyer it bore date at Hamborough It s triable here Latch p. 4 77 84. Ward and Kidson Cro. Jac. fo 76. Higham and Flower An Obligation sued in the Admiralty supposed to be made and delivered in Chancery Per Cur ' such a Bond may be sued here but being begun there we cannot prohibit them For the Plaintiffs Witnesses may be beyond Sea 3 Leon. p. 232. Delabreche's Case Debt on Obligation dated in Surry brought in London The Counsel pleaded Stat. 6 R. 2. cap. 2. that all Obligations ought to be sued in their proper Counties as dated and prayed Judgment of the Writ Per Cur ' its a frivolous Plea the Law being clear that unless the Obligation appear in the Count or on the Pleading to be out of the County although it bear date out it s not material where it s brought 1 Keb. 593. Pretty and Roberts Debt on a Bond of 60 l. for the payment of 30 l. 10 s. at Coventry Issue was taken that the Mony was paid at Coventry yet by consent of Parties and Paper on the Rule of Court Issue was found pro Querente at London and Judgment but it was reversed for this Error Consent of parties cannot change the Law Hobart p. 5. Crow and Edwards Recognizance taken before a Judge at Serjeants Inn in Fleetstreet London out of Term the Action was laid in London and not in Middlesex and good and the Scire facias shall be directed to the Sheriff of London but if it were taken in Court or generally it shall be in Middlesex Hob. p. 195 196. Hall and Winckfield Place of Payment in the Condition DEbt in Havering in Essex The Condition was for payment of 20 l. to the Plaintiff at his House at S. in Kent The Defendant pleads payment at the day c. Secundum formam effectum indorsamenti pradict ' and Error was assigned for that the Issue was tryed at Havering and not at S. in Kent Non allocatur For when a thing Issuable is alledged and no place this shall be tryed where the Action is brought and Secundum formam c. refers only to the Time and not to the Place For the Place is not material payment being made to the Obligee and it appears not but S. in Kent may be in the Jurisdiction of Havering Cro. Eliz. p. 105. Newe's Case Condition was if he pay 50 l. at his House at Lockington in the Parish of Kilmerston that then c. The Defendant pleads payment c. and the Venire issues of the Venue of Lockington and good for it shall be intended a Village in the Parish of Kilmerston for divers Villages may be in one Parish But if it had been at his House in Lockington in Kilmerston then it shall not be intended a Village but a place known Cro. Eliz. p. 117. Pike and Cottington 3 Leon. 193. Cro. Eliz. 804. Kerchever and Wood. Payment pleaded apud domum mansionaliâ— Rectoriae de M. Venue was de M. and good and M. shall be intended a Vill. Condition for the payment of 100 l. at his House in Cheapside the 21 of June next ensuing the date hereof The Defendant pleads that on the 21th of January then next following the date of the Condition of the Obligation aforesaid he paid the 100 l. at the Plaintiff's House in Cheapside Secundum formam c. It s good enough though the Condition hath no date for the Condition and Obligation are as but one Deed But because it s not alledged in what Parish or House the Ward is its Ill because of a Venue and Trial a Parish and Ward in London are as a Vill and Hamlet in other Countries Cro. Eliz. pag. 372. Forth and Harrison Condition was that the Defendant should pay so much Mony in an House of the Plaintiffs at Lincoln The Defendant pleads payment at Lincoln aforesaid and Issue c. The Venire was
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