Session pacis in Comitâ— praedict tenend ad stand â—ct in Curia siquis versus cum loqui voluerit de diversis feloniis transgressionibus unde idem R. B. judicatus existit ut dicitur ad respondend dicto Domino Regi de iisdem prout debet dat c. Recognisance of Bail Kanc. ss Memorandum Quo â—quinto die A. D. de c. G. H. de c. J. K. de c. personaliter venerunt coram nobis C. D. E. F. Justiciar dicti Dom. Regis ad pacem suam in Com. suo praedict conservand assignatâ— recogneverunt se deberâ— eidem Dom. Regi modo forma sequen viz. praedict A. B. 20 l. legalis c. uterque praedictorum G. J. 10 l. confiâ—lis â—nita de seperalibus bonis catalliâ— terris tenementis sâ— seperalis fieri le vari ad opus usum dicti Dom. Regis hared successor suorum si defult fieret in performatione conditionis indors Condition for appearance for Felony or suspicion of Felony The Condition of the Recognizance is such That if the within bound A. B. do personally appear before his Majesties Justices of Gaol-delivery at the next general Gaol-delivery to be holden for the within named County of Kent then and there to answer to our Sovereign Lord the KING for and concerning the felonibus taking and stealing of c. or for suspicion of his felonious taking c. wherewithal he standeth charged before c. and to do and receive c. and do not depart the said Court without licence for the same then c. If it be to appear at Sessions say Do personally appear before his Majesties Justices assigned to keep his Peace in the within named County of K. at the next General Sessions of the Peace to be holden for the said County of T. in the County aforesaid then and there to answer c. If the Party thâ— is bound to appear on Surety for the Peace be so sick that he cannot appear the Justices in their discretion have forborn to certifie or record such Forfeiture or Default and that they have taken Sureties for the Peace of some Friends of his present in the Court till the next Sessions If the Husband be bound that he and his Wife shall appear at such a Sessions and that they shall keep the Peace in the mean time c. and at the day the Husband appears alone Qu. if the Recognizance be forfeited A Supplicavit out of Chancery directed to the Sheriff and Justices to bind F. and two others to the Good Behaviour the Sheriff returns that the two non sunt inventi and quoad F. that such a Recognizance was taken before the Justices and that he had broken the Good Behaviour and F. pleaded to Issue in Chancery the Record being sent into the Kings Bench per manus Dom. Cancellaris thereupon a Writ of Nisi Prius issued and found for the Defendant this Recognizance was not well certified into the Chancery for they who take the Recognizance ought to certifie it Cro. Jac. 669. Ford against the King If a Man find Sureties for the Peace before the Justices of the Peace in the County yet if the same Party come in B. R. and there make Oath that he was afraid he shall be hurt by the said Party he may have surety of the Peace there against the Party and a Supersedas to the Justices to discharge the Bond taken before them for the Peace and Behaviour Moor n. 126. Upon motion on Affidavit that he was bound to the Peace for Malice his Recognizance was discharged Stiles p. 364 Sir Tho. Revels Case It s the Course of the Court when any are bouâ—d over to appear in B. R. and in the mean time to keep the Peace or be of Good Behaviour the Cause is to be exprest in the Recognizance also when ever the Court binds any Man to the Peace or Good Behaviour it s always for a year 1 Keble Hill 16 and 17 Car. 2. B. R. Sandford versus Atkinson What is or amounts to a Breach or Forfeiture THE Surety of the Peace is not broken without Affray made or Battery bujusmodi 2 H. 7.2 b. Words which threaten a Battery of the Body may forfeit a Recognizance but not to call one Lyar Drunkard and to say I will make him a poor Kirton Moor n. 378. If he threaten to beat him to his Face it s a Forfeiture or if he threaten in his absence and afterwards lies in wait to beat him Keb. Inst 615. If he that is bound do but command or procure another to break the Peace upon any Man or to do any other unlawful Act against the Peace if it be done it s a Forfeiture of his Recognizance 7 H. 7.34 a. There is a Surety of the Peace and a Surety of the Good Behaviour the Surety of the Peace cannot be broken without some Act as an Affray or Battery or the like but the Surety de bono gestu consisteth chiefly in doing nothing that may be cause of the Breach of the Peace the word Lyar Drunkard c. are not Breaches nor entring his Close nor taking Goods What is a Breach of the Peace is a Breach of the Behaviour riding with War-like Weapons but that is not Law now or in Company with riotous Malefactors Cro. El. 86. k. 4 Inst 180 181. Kings Case In Sc. Fac. upon a Recognizance for the Good Behaviour taken in the Crown Office the Breach is assigned because he assaulted land bâ—t â—ne on the Way and he saith not vi aâ— and for this Cause after Verdict Judgment was stayeth Cro. Jac. 412. The King and Hutchings Scire Facias upon a Recognizance of the Good Behaviour Breach assigned was That he said to a Constable in executing his Office thou art a lying Rascal and to a Woman that she was a Whore and a Jade c. The Defendant pleaded not guilty and found for the Defendant though the manner of speaking may be good cause in discretion to bind one to his Good Behaviour yet one being bound words only which tend not to the Breach of Peace terrifying others or to sedition c. shall not be sufficient cause of Forfeiture Nota In this Case the Witnesses in the behalf of the King did not prove that these words were iâ— disturbance of the Execution of his Office Cro. Car. 498. The King versus Hayward Farther Considerations of Bonds in respect of Assignment Statute of Bankrupt and Forgery c. Assignments of Obligations Vide Creditors as to Statute of Bankrupcy IF a Man assign an Obligation to another for a precedent Debt due by him to the Assignee that is not Maintenance but if he assign it for a Consideration then given by way of Contract this is Maintenance Noy 53. Harvey versus â—man Alit in Case of the King 3 Lion 234. Scoth and Marsh Upon the Statute of 33 H. 8. cap. 39. the Case
end or determination of his Apprentiship The Apprentice serves six years and dies Per Cur. The Obligation is discharged and the Mony shall not be paid 1 Brownl 97. Cheyny and Sell Cro. Eliz. p. 723. Cardinal and Hesket About embezelling Boâ—ds for the Good Behaviour THE Condition of this Recognisance standeth upon two Points 1. For appearance at the time 2. For keeping the Peace in the mean while The Form of the Recognisance for the Good Behavior Mem. quod quinto die mensit c. Anno Regni c. venit coram me A. B. Ar ' uno Justiciatiorum Domini Regis ad pacem nunc c. R. C. de c. in propria persona sua assumpsit pro scipso sub poena 200 l. H. C. de L. c. J. S. de c. tunc ibid. in propriis personis suis similiter vener manuceper pro praedict R. G. viz. quilibet eorum separatim sub poena 100 l. quod idem R. G. personaliter comparibit coram Justiciariiâ— dicti Domini Regis ad pacem c. ad proximam generalem Sâ—sionem c. quod ipsa interim se bene geret â—a Dominum Regem cunctum populum suum praecipue erga J. B. de C. c. Et quod ipse non inferret nec inferri procurabit per se nec per aliâ— dâ— aliquod seu gravamen praefat J. B. seu alicui de populo ipsius Domini Regis de corporibus suis per insidias insultus seu aliquo alio modo quod in laesâ—onem seu perturbationem pacis dicti Domini Regis cedere valeat quovismodo quas quidem separales summas 100 l. uterque praedictorum H. C. J. S. ut praedicitur pro se aâ— praedict R. G. dictas 200 l. recognoverunt se debere dicto Domino Regi de terriâ— tenementis bonis catallis suis quor umlibet cujuslibet eorum ad opus ipsius Domini Regis fieri levari Si contingat praefatum R. G. in aliquo praemissorum deficere inde legitimo modo convinci c. In cujus rei Testimonium ego praedict A. B. sigillum meum imposui dat c. Dalton 3â—0 c. 123. Kilby's Presid 191. is more full but to the same purpose And this may be done also by a single Recognisance in Latin with a Condition added or endorsed in English for the keeping of the Peace or for the day and place of appearance at the Quarter Sessions or in Latin The Obligation shall be made in the Kings Name by the words Domino Regi per Stat. 33 H. 8.39 sect 52. And such Bonds shall be of the Nature of a Statute Staple Per Stat. 3 H. 7.1 Every Recognisance taken for the Peace shall be certified at the next Sessions of the Peace that the Party thereupon may be called and his Default if any happen may be recorded The Justice of Peace must send or bring it in at the next Sessions to the Custos Rotulorum whether the Recognisance were taken by his own discretion or at the suit and desire of another Altho the Party that prayed the Peace do not then appear at the Sessions yet the default of the Recognisor is not thereby discharged and the Justices may then of discretion bind him over again If the Recognisance be versus cunctum populum praecipuâ— versus A. A. may release it either before the same Justice or any other that will certifie the Release which Certificate being of Record will discharge it but to release it by his Deed is nothing worth But the Recognisance may not be cancelled lest perhaps the Peace was broken and consequently the Recognisance forfeited before the Release Therefore it will be best in such Cases to send to the Sessions the Recognisance and the Release together and that may be done in a few Lines under the Recognisance it self as Memorandum Quod primo die c. praefatus C. D. venit coram me S. L. gratis remisit relaxavit quantum in se est praedictam securitatem pacis per ipsum coram me versus supranominatum A. B. petitam In cujus rei testimonâ—um Igo praefat S. L. c. dat c. If a Man be bound to the Peace and to appear at next Quarter Sessions and do afterwards procure a Supersedeas out of Chancery testifying that he hath found Surety there against all the Kings People for ever this will discharge his appearance at the Sessions And it is best for the Justice of Peace to send in as well the Recognisance as Supersedeas for perhaps the Recognisance was broken before the Supersedeas purchased The death of the King dischargeth the Recognisance of the Peace so doth the death of the Recognisor so doth the death of him at whose Suit it was taken But though the Sureties die the Recognisance standeth for if the Peace be broken after death their Executors shall be charged with it In the Release of Surety of the Peace these words are Securitatem pacis but for the good Behavior Securitatem de se bene gerendo The Informer against a Prisoner for Felony may be thus bound in a single Recognisance Kanc. ss Memorand ' Quod tertio die Apr. Anno c. D. E. de B. c. personaliter coram me T. S. uno Justiciariorum c. ad pacem c. assignator ' constitutus apud B. praedict recognovit se debere dicto Domino Regi 10 l. bonae c. de bonis catallis terris tenementis suis fieri levari ad opus dicti Domini Regis Herod Successorum suorum si defecerit in conditione indorsata The Condition of this Recognisance iâ— such whereas one A. B. late of G. Labourer was this present day brought before the said Justice by the above bounden D. E. and was by him charged with the felonious taking of 20 Sheep of him the said D. and thereupon was sent by the said Justice to the Kings Majesty's Gaol If therefore he the said D. shall and will at the next general Goal delivery to be holden in the said County prefer or cause to be framed and preferred one Bill of Indictment of the said â—elony against the said A. B. and shall and will then also give Evidence there concerning the same as well to the Jurors that shall then enquire of the said Felony as also to them that shall pass upon the Tryal of the said A. B. that then c. A Recognisance to appear and answer for Felony Memorandum Quod vicesimo die c. R. C. de I. Gen. E. C. de c. J. B. de c. venerunt coraâ— me J. H. Armig. uno Justiciariorum dicti Domini Regis ad pacem in Comitat. praedict conserâ—nd assignat manâ—osperunt pro R. B. de c. viz. Quilibet eorum corpus pro corpore quod idem B. R. personaliter comparebit coram praefat Justiciariis sociis ad prox general
of Exeter and Star A Condition to appear in B. R. where the Process is returnable c. the Defendant said in facto that he had appeared secundum formam c. Et hoc petit c. there was a Repleader awarded for it must be tried per the Record A. is bound to appear such a day c. and A. at the said day goes to the Court but there no Process is returned then the Party may go to one of the chief Clerks of the Court and pray him to take a Note of his appearance Vide the Form of Entry in such Case if the other Party pleaded nul tiel Record it behoveth that the Defendant have the Record ready at his peril for this Court of Common Pleas cannot write to the Justices of the Kings Bench to certifie a Record hither 1 Leon. p. 90. Bret and Shepard Debt upon a Sheriffs Bond Jones for the Bail prayed the Principal being now in Person may be admitted to plead discharging th Amerciaments which is the course of the Court where the Prosecution is fresh but where the Defendant in the Original Action i. e. the Principal is become insolvent per Cur. the Bail Bond is the only remedy and they will not discharge that on the ordinary Rules but in this Case because the Bail appeared on the very day of the return and the default is the Plaintiffs own and the Bond not above a year old paying the Amerciaments and Costs the Bail was discharged and the Principal admitted to plead 2 Keble 545 553. Flood and Williams If the Defendant appears not to the Sheriffs Bond according to the Condition thereof the Plaintiff may by leave of the Sheriff sue the Bond in the Sheriffs Name but it s at the Plaintiffs Election to amerce the Sheriff Stiles Pract. Register p. 221. When Bail is put in de bene esse as Bail taken in a Judges Chamber is the Plaintiff cannot sue the Sheriffs Bond till it be refused or set aside but he ought to except against it in the Judges Chamber 1 Keblâ— 478. Anonymus The Court cannot compel a Sheriff to assign his Bond the Party was arrested and through his default in not returning his Writ the Defendant died Per Cur. in this Case he shall not take advantage of his own wrong but shall now assign the Bail Bond or pay the utmost Amerciaments 2 Keble 388. Hill and Browning A Bail Bond was discharged upon motion the Mony being paid before the return of the Writ and appearance ordered 3 Keble 316. Randuls Case In Det sur Bond the Defendant pleads Stat. 23 H. 6. and shews that V. was in Execution and the Bond made for his deliverance against the Statute The Plaintiff replies tempore confectionis of the said Bond V. was at large absque hoc that he was in Prison tempore confectionis c. The Traverse is not good for one may be in prison and make a promise to make a Bond for which he is enlarged and within an hour after he makes the Bond the same is within the Statute it ought to be absque hoc that it was made pro deliberatione 2 Leon 107. Bowes and Vernon 2 Keb. 512. Die and Adams The Condition was if Thomas Manningham keep the Sheriff without damage against our Lord the King and one Th. P. and at all times be at the Commandment of the said Sheriff as a true Prisoner and appear before the Justices c. then the Obligation to be void The Defendant pleaded the Statute of 23 H. 6. and that the Body of Tho. Mannigham was in Execution upon a Recognisance and that the Sheriff made the Obligation for the Delivery of the said Thomas Manningham and demanded Judgment si actio i. e. if the Plaintiff ought to maintain his Action this is no good Conclusion of the Plea he ought to have concluded issint nient son fait For the Statute saith it shall be void and if it shall be void then it is void from the beginning and then it is not his Deed. And farther the Defendant had not wisely concluded his Plea for this special Conclusion had straitned the Defendant so that if the Obligation be void for any other cause the Defendant shall not have benefit of it and yet because it appeared to the Judges on the matter in Law that the Plaintiff had no cause of Action the Court gave Judgment against him for the Obligation is void by the Letter of the Statute for it makes void Obligations taken in other manner which extends to avoid Obligations for bayling those which are contained in the 2d Branch as those in Execution c. Plowd 66 67. Dive and Manningham Yet the Condition was that the Defendant should appear in B. R. to answer in a Plea of Trespass and satisfie the Damages The Defendant pleads the Statute of 23 H. 6. that the Bond was made for his enlargement and issint not his Deed. The Plaintiff demurs specially upon the Conclusion of the Plea which ought to be Judgment si actio and agreed the Plea to be naught Allen p. 58. Leech and Davies Det sur Obligat dated 25 Sept. The Defendant pleads a Ca. sa was awarded against B. who was taken on it 30 Sep. and that the Obligation was made for the enlargment of B. The Plaintiff demurs and had Judgment because it appears the Bond was made before the Arrest and so could not be avoided by 23 H. 6. but he ought to have pleaded that with a primo deliberat after the Arrest Noy 23. Collins and Phillips Det sur Bond by the Sheriff dated 13 Junij the Defendant demanded Oyer of the Condition which was that if he appear here Veneris prox post tres Trin. and pleads Veneris prox post tres Trin. was 14 Junij and that he was imprisoned by the Plaintiff till 19 Jun. and that the Obligation supra fuit primo deliberat per le def 19 Junij absque hoc that this was delivered as his Deed before the 19th of June The Defendant demurs Per Cur. this is not a good Traverse it ought to have been absque hoc that this was delivered as his Deed before die Veneris prox post tres Trin. For if the Traverse supra be allowed the Plaintiff shall be excluded from answering to the time alledged of the Return although it be false Siderfin p. 300. Courtney and Phelps 2 Keb. p. 108 109 122. mesme Case The Defendant pleads to the Sheriffs Bond that that there was no Writ ever delivered to the Sheriff and so would avoid it per Stat. 23 H. 6. The Sheriff after the Writ sent out but before delivery takes Security which per Cur. he may if the Defendant will give it 1 Keb. 554. Brumfield versus Penhay The Defendant pleads Stat. 23 H. 6. and that he was in Custody by Warrant of a Writ returned Veneris post Oct. Pur. The Plaintiff replied the Defendant was taken by a Warrant on a Writ returned Sab.
l. or a Pint of Wine upon request ibid. 18 Ed. 4.20 21. So if it be to go to York or marry my Daughter upon request for in all these Cases the request had no other effect but to appoint a time when the Obligor should do the one or the other ibid. If I am bound to pay 5 l. at the Feast of P. next or before c. at the request of the Obligee the Obligor hath given his consent that the Obligee shall have the Election in this Case Dyer 1 2. M. 108.32 Aliter if it had been to pay 5 l. before the Feast of P. at the request of the Obligee or at the Feast of P. there the Obligor had the Election ibid. Condition if the Obligor deliver certain Obligations to the Obligee before such a day to be cancelled or else if he seal a Deed of Release of all Actions which the Obligee shall cause to be made by the advice of his Council and shall deliver it to the Obligee to be sealed before the day aforesaid c. both are in the Election of the Obligor for if the Obligee doth not deliver him any Release to be sealed by him he is not bound to deliver the Bonds id Case Cro. El. p. 396 539. 1 Rolls Abr. 447. Greningham and Ewer Moor n. 492. And if he had delivered him a Release then he ought to have Election to deliver the Bonds or to seal the Release ibid. Condition is to deliver such Obligation before such a day or to pay to him 10 l. if he request this if he doth not request the 10 l. the Obligor ought to deliver the Obligation for he had not Election until request made but after request made he had Election which of them he would do id ibid. Condition was that H. should make a Conveyance when he came to twenty one years of Age or in default thereof the Defendant should pay 50 l. the Defendant hath not Election if he do not the one he must do the other 1 Keble 230. Johnson and Bridges Condition to deliver to the Plaintiff before such a Feast such a Ship and Tackle or in default thereof to pay at the same Feast such a Sum as J. S. shall value them to be worth the Defendant pleads before such a Feast J. S. did not value them upon Demurrer pro Quer. for though the Obligor hath Election to do the one or the other yet the Condition being for his benefit he ought to provide the value should be assessed otherwise he is to deliver the Goods themselves so if one be obliged to make such an Assurance of such Land as the Councel of the Obligee before such a day shall oblige or to pay there and then 100 l. If the Councel devise not any assurance he ought to pay the 100 l. Cro. M. 43 Eliz. pl. 42. More and Morecomb Condition that the Obligor should pay to the Obligee c. at the choice and election of the Obligee within a month after the death of J. S. 30 l. or twenty Kine the Defendant pleads that the Plaintiff within the month after the death c. did not make any choice or election Per Câ—r it s a good Plea for the Obligor is not boun◠〈◊〉 make a tender of both and the Election of the Plaintiff ought to precede the Tender of the Defendant 1 Leon. p. 69 70. Basset and Keâ— Case The Defendant was bound to the Lord Lisle to shew his Evidences touching such an House to the said Lord or his Councel the Election was to the Defendant to whom he would shew them 18 Ed. 4.15 17 20 21. Where the Condition is in the Disjunctive before the day of performance the Election is to the Obligor but if at the day he make default the Election is to the Obligee 9 Ed. 4.36 37. If I am bound to you in a Bond c. to pay to you such a day 10 l. in Gold or Silver if you do not make your Election before the day yet the Duty remains payable for the thing to be paid is parcel of the Penalty per Concessum Curia in 1 Leon. p. 70. Condition if the above bounden J. B. c. shall within six months after the death of c. assure unto the said H. B. as the Councel of the said H. B. shall advise one Annuity of c. during H. B's Life payable after M's decease if the said H. B. require the same at the Dwelling-house c. or if he shall not grant the same if then the said J. B. shall pay unto H. B. within the time aforementioned 300 l. then c. The Defendant pleads the Plaintiff H. B. had not tendred any grant of an Annuity within the time of six months after the death of his Mother Per Cur. the Obligors Election is taken away by the Act of the Obligee himself and the Plaintiff by his negligence hath deprived the Defendant of his Election Judgment pro Defendante Mod. Rep. 264. Basset and Basset Condition to pay 20 l. after demand when L. had a Son that shall or can speak the Lords Prayer in English The Defendant pleads L. had not a Son after the Obligation made qui locutus fuit aut loqui potuit the Lords Prayer the Plaintiff replied he had a Son qui loqui potuit c. it s a good Replication and a good Issue for the Condition being in the Disjunctive he may alledge the one or the other at Election and the power of speaking shall be proved by those that have heard him recite it Cro. El. p. 727. Lane and Goleman Obligation and Condition void by Duress Minas DUress is not intended but where the Party was wrongfully imprisoned till he make the Bond 3 Leon. 239. Knight and Norton Duress pleaded the Case on the Evidence was Plaintiff charged the Defendant with Felony for stealing an Horse and procured a Warrant from a Justice of Peace whereby he was taken and being in Custody upon promise of the Plaintiff to discharge him sealed the Bond and thereupon was immediately discharged and it appeared that the Horse was the Defendants own Horse and Roll directed the Jury that the Bond was gotten by Duress these Proceedings being but to cover the deceipt Allen p. 92. The Defendant pleads duress of Imprisonment it s no good Replication for the Plaintiff to say that menac't to bring a Suit against him for Arrears of Rent according to Law and by Process of Law to imprison him if he can unless he would seal the Obligation for this is not any answer to the Bar 16 Ed. 4.7 b. It s no Plea that it was done by duress by a Stranger without making the Obligee Party to the duress Keil 154. a. If the Defendant pleads the Obligation was made by duress of Imprisonment and by Menace of Imprisonment its double 1 Com. 140. a. 19 Ed. 4.4 declares that the Obligation was made to B. it s a good Plea for the
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
not within this Statute Hob. p. 13. Sir Daniel Nortons Case This Statute hath two parts one for the Benefit of the Sheriff viz. That he shall take Obligations with single Sureties which is for his Indempnity that if he be amerced for non-appearance of the Party he shall have his remedy the other for the benefit of the Party so the Statute prescribes the Form and that the Sheriff under colour of his Office should not oppress the Party to make him any other manner of Obligation for the Statute makes the Obligation void for not persuing the Form but not in the Matter thereof therefore the Sheriff may take one Surety or two one being a Stranger that hath nothing in the County Cro. El. 808. Sir George Clyfton versus Webb At the Common Law the Sheriff was not compellable to take Bail of any and the Statute compels him to let to bail and therefore no Action lies against the Sheriff for not having the Body at the day the Statute saith sufficient Sureties but that is for his own indempnity which he may wave and take what Sureties he thinks fitting The Statute saith The Obligation taken in any other Form than is there prescribed shall be void and within the Statute are three Froms to be observed 2 Leon. fol. 78. Seckford and Woolverton 1. That it shall be made to the Sheriff himself 2. That it shall be made to him by the Name of his Office 3. That it shall be only for appearance at the day but the insufficiency of the Sureties is Matter and not Form and the Obligation is not void Cro. El. p. 862. Mich. 43 El. 1. Cotton vers Wale mesme Case 2 Anderson 175. The Statute was made for the Prisoners benefit for the Mischief before was That the Sheriff not being compellable to bail him would extort Mony from him to be bailed Modern Rep. p. 228. At Common Law if the Sheriff had taken any Man by Writ of the King he might not be delivered but by breve de homine replegiando 2 Sanders 60. This Statute does not extend to Fees or other Collaterals only matter of Imprisonment colore Officii is taken in malam partem as Extortion is c. 2 Keble 422. One in Execution escapes and is retaken and then a Bond is made for his enlargement this is colore officii and deins Stat. 2 Leon. 118. Philips and Stone If a Sheriff take a Bond for a true Debt its good because not colore officii The Warden of the Fleet and the King Palace at Westminster are excepted out of this Act. If the Statute be misrecited it may be demurred to as he recited if any Sheriff aut ejus Officiarii where it should be alii Officiarii Cro. Eliz. 108. Trussel and Aston Q. if the Court will take notice of this by the printed Book or by the Record or otherwise Siderfin p. 356. Holby and Bray As to misrecital vide 2 Keble 278. Pench and Woodnoth The Sheriffs Return upon this Statute ACtion upon the Case brought against the Sheriff because he took J. S. and returned at the day Cepi Corpus and yet had not the Party at the day but suffered him to escape but he returned paratum habeo which was false The Defendant pleads he being arrested put in J. B. and J. C. Sureties and pleaded Stat. 23 H. 6. and so let him at large the Plea is good for the Sheriff is compellable to take Bail but what Bail is left to his discretion and for his false return of paratum habeo he is amercible to the Court and that is nothing to the Party Cro. El. p. 624. Barton and Aldworth And this is a good Plea for the Sheriff to plead not guilty in such a Case but if the Sheriff demurs to the Declaration then the Action lies against him for the Declaration shall be taken to be true upon the Demurrer for the Statute is private and the Court will not take notice of it unless it be pleaded Siderfin H. 21 and 22 Car. 2. Parker and Webly 1 Rolls Abr. 92. Mod. Rep 244. Page and Tulse Mod. Rep. 57. But if the Defendant had pleaded this specially or had pleaded non cul he might have had advantage of the Statute and ousted the Plaintiff of his Action Moor n. 428. Cro. 3. 460. Langton and Gardners Case After this Statute the Sheriff may not make a Special Return but only Cepi Corpus or non est Inventus Franklin and Andrews Case cited in Siderfin in Parker and Welbyes Case p. 23. If the Sheriff return Languidus yet if he took Bond according to the Statute no Action upon the Case lies against him but he is amercible Cro. Eliz. 852. Boles and Lassels The Sheriff shall be amerced until he assign the Obligation to the Plaintiff Siderfin p. 23. If Bail be taken by the Statute 23 H. 6. and the Sheriff return Cepi Corpus and the Party appear not at the day of the return being in mean Process the Sheriff shall not be charged in Action sur Case for this would be to frustrate the Statute 23 H. 6. but then it must appear to the Court on the Record that it is on the Statute 23 H. 6. and not a return at Common Law Siderfin 22. Allen and Robinson If the Sheriff refuse to take reasonable Bail Action upon the Case lies against him and if he refuse to take Bail he is liable to an Action of false Imprisonment Siderfin p. 23. An Action upon the Case against the Sheriff pro Escape the Defendant pleads the Statute 23 H. 6. that he let H. to bail and took reasonable Sureties A. and B. Persons having sufficient within the County the Plaintiff replies absque hoc That he took Bail having sufficient within the County the Defendant demurs Judgment pro Defendente Mod. Rep. 227. Ellis and Parborough An Action upon the Case against the Sheriff for not taking reasonable Sureties nor having sufficient Estates in the said County and returning Cepi Corpus and yet had not the Bodies at the day it lies not for he is compellable to let to bail and if he have not the Body he shall be amerced and because he shall be amerced the Statute gives him advice to take sufficient Sureties for his own Indempnity 2 Sanders p. 59. Posterns Case Vide the Declarations and Pleadings in that Case there An Action upon the Case for taking insufficient Bail the Defendant pleads he had taken sufficient Security he need not say where nor need he traverse the intent to deceive the Plaintiff of his Debt Siderfin p. 98. Bently and Hore Q. of this Case What Obligations and Conditions shall be void by this Statute and what not IF the Obligation had one part of the Condition according to the Statute and the other not all shall be void Plow Dive and Manningham p. 68. b. Vid. Palmer Rep. 378. Noel and Cooper Vic. in Com. perdit pro praedict it s void An Obligation to the Sheriff to appear and