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
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
other Debt 2 Keb. p. 804. Street and Buckner 1 Brownl p. 47. Lovelace's Case Stiles p. 339. Brock and Vernon More N. 1147. 2 Keb. p. 804. Street and Buckner Vid. pluis Litt. p. 58. Ene's Case 5 Rep. 44. Lord Cromwell's Case cited in Higgin's Case No though a Stranger give the Bond 1 Brownl p. 71. Hawes and Birch If Issue be joyned on the acceptance and the Plaintiff be Nonsuit Q. If this Plea be such a Confession of the Action as the Plaintiff shall have Judgment Hobart p. 68 69. B. R. Lovelace and Colket Randiff and Strutt The Defendant pleads that the Plaintiff after the day of Payment and before the Writ brought did accept of a Statute-Staple for the same Debt in full satisfaction of the Obligation It 's an ill Plea for a Statute is but an Obligation of Record and cannot drown another which is not of Record Sir R. Brainthwait's Case cited in 6 Rep. 44. b. Higgin 's Case Vid. Co. Lit. 212. b. 5 Rep. 117. b. contra Payment of a lesser Sum and acceptance in full satisfaction pleaded you may either traverse the payment or the Acceptance but it s more proper to joyn Issue upon the payment Stiles p. 239. M. 1650. Boys and Cranfield Condition to pay 10 l. to a Stranger by Michaelmass The Defendant pleads payment of a lesser Sum before the day to him The Plaintiff demurs the Plea is ill as to a Stranger 2 Keb. p. 628. P. 22 Car. 2. Chapman and Win. Debt pro 43 l. The Defendant pleads 39 l. paid before the day which the Plaintiff accepted in satisfaction The Plaintiff joyns Issue Non recopit in satisfactionem The Defendant Demurs it 's ill He should have said Non solvit 3 Keb. p. 28 Car. 2. fo 629. Percival and Colthowe The Defendant pleads the Condition was to pay a lesser Sum at a day and that before the day he paid in satisfaction Per Cur. It 's an ill Plea not having demanded Oyer of the Condition 3 Keb. p. 708. Mich. 28 Car. 2. Clatch The Defendant pleads That the Plaintiff before the day accepted a lesser Sum in full satisfaction of a greater It is a good plea but then he must plead he paid that lesser sum in full satisfaction and that the Plaintiff received it in full satisfaction Pinnel's Case 5 Rep. 117. More N. 847. Penny and Cote For the manner and tender of Payment it shall be directed by him that made it I am bound to pay you 10 l. at Westminster and you request me to pay you 5 l. at the day in York and you will accept it in full satisfaction of the whole 10 l. it s a good satisfaction of the whole 5 Rep. 117. Pinnel's Case Condition is for payment of 20 l. the Obligor at the time appointed cannot pay a lesser Sum in satisfaction of the whole But if the Obligee do receive part at the day and thereof make Acquittance under his Seal in full satisfaction of the whole its sufficient for the Deed amounteth to an Acquittance of the whole Co. Lit. 212. b. Pinnei's Case 5 Rep. 117. b. If the Obligor pay a lesser Sum either before the day or at another place than is limited by the Condition and the Obligee receive it this is a good Satisfaction Ibid. Not only things in possession may be given in Satisfaction but also if the Obligee accept a Statute in Satisfaction of the Mony it s a good Satisfaction Ibid. Obligor is bound to pay 100 Marks at a day and at the day the parties Account together and for that the Obligee did owe 20 l. to the Obligor the Sum is allowed and the residue of the 100 Marks paid This is a good satisfaction tho' the 20 l. was a chose in Action and no payment was made thereof but by way of Retainer or Discharge Co. Lit. 213 c. Condition to make assurance of Lands to such uses The Defendant pleads he made a Feoffment to other uses which the Plaintiff accepted Ill Plea 1 Brownl 60. Potter and Tompson Where the Condition is for payment of Mony if the Obligee accept an Horse c. in satisfaction its good But if the Condition were for the delivery of an Horse c. there tho' the Obligee accept Mony or other thing for the Horse c. it s no performance of the Condition So a Condition is to acknowledge a Recognizance of 20 l. c. if the Obligee accept 20 l. in satisfaction of the Condition yet the Condition is broken So of all other Collateral Conditions Co. Lit. 212. b. If a Condition be to pay Mony to a Stranger if the Stranger accepts an Horse or other Collateral thing in satisfaction it s no performance of the Condition for there the Condition must be strictly performed But if the Condition be that a Stranger shall pay to the Obligee a Sum of Mony the Obligee may receive an Horse in satisfaction Co. Lit. ibid. To Debt on Bond the Defendant pleads it was agreed before the Forfeiture of the Bond for 300 l. between the Plaintiff and divers other Creditors of the Defendants that the Defendant should assure divers Lands to be sold and the Mony to be paid and he assigned several sums of Mony to them which they accepted and avers in facto that he sold the Lands to them and made a letter of Attorny to them to receive the Sums of Mony The Plaintiff demurs because the Indenture sounds in the nature of a Covenant and if so it shall not be in satisfaction being in it self no satisfaction nor pleadable in satisfaction of that Debt Also admitting it had been a good satisfaction if performed yet part thereof not being performed it s no bar to this Action Cro. Car. 193. Simonds and Mendsworth A Concord or Verbal Agreement cannot discharge a Specialty As a Condition for the performance of Covenants in Articles of Agreement The Defendant pleads an Agreement between the Plaintiff and him that he should grant 5 l. per Annum for life in discharge which Grant he made and the Plaintiff accepted Judgment pro Querente being only a Verbal Agreement Cro. Jac. fo 649. Noys and Hopgood and so Cro. Eliz. pag. 697. Hayford and Andrews If the Defendant pleads before the day of payment the Plaintiff in respect of a Trespass made by his Beasts in the Defendants Lands gave him longer day It s no Plea for an Agreement by Parol cannot dispence with an Obligation Condition to pay 40 l. on Michaelmass-Eve The Defendant pleads Concord that if he gave him an Hawk and 20 l. at Michaelmass-day the Obligation should be void and avers he did so and the Plaintiff accepted it It s an ill Plea for it appeareth for Non-payment of the Mony at the day the Bond was forfeited and so became single which cannot be discharged by such naked Averment en fait of such Acceptance But Acceptance before the day had been a good Discharge Cro. Eliz. p. 46. Anonymus Condition
do not restrain the Condition to the last part only to wit of the two Obligations but do extend to the Recognizance per the first words The Condition of this Obligation is such and per the word also in the last Clause 1 Rolls Abr. 409. Ingoldsby and Steward For the Matter and Substance of the Condition What Conditions are good and what not A Condition to do any lawful or possible thing is good as to make a Release perform Covenants not to play at Cards and Dice not to be Surety c. But when the matter or thing to be done by the Condition is unlawful or impossible or the Condition it self is repugnant insensible or uncertain the Condition is void and in some Cases the Obligation also Conditions against Law are void Against the Law of God of Nature to do a thing that is malum in â—se as to kill a Man or do any other Felony c. in such Cases the Condition and Obligation are both void Co. Lit. 206. Conditions against Common Law Statute Law Note This difference between a Bond made void by Common Law and a Bond made void by Statute Law If a Bond be made void by Statute Law it s void in the whole as upon the Statute 23 H. 6. If a Sheriff take a Bond for a thing against that Law and also for a due Debt the whole Bond is void for the Letter of the Statute is so 2 Rolls Rep. 116. But the Common Law doth divide and having made void that that is against Law le ts the rest stand Carters Rep. fol. 230. in Pearson and Humes Case A Bond to perform Covenants one is void and the other good the Bond is good for those that are agreeable to Law as in Sir Daniel Nortons Case Hob. p. 14. Cro. Eliz. p. 529. 2 Anderson 116. Lee and Coleshill 3 Rep. 82 83. Lee and Coleshill cited in Twines Case If the Condition be to do a thing contrary to Law the Obligation is void 2 H. 4.9 Co. Lit. 206. b. But here is another Diversity A Condition to a do a thing against the Law of God of Nature a malum in se or against Law and Justice in such Cases the Obligation and Condition are both void as for unlawful Maintenance for a Sheriff not to execute Process and the like But when the thing to be done or not to be done by the Condition is not malum in se but against some Ground of the Law as that a Man shall make a Feoffment to his Wife or is but malum prohibitum only as that a Man shall erect a College contrary to the Statute of 31 Eliz. or a Man is bound to alien certain Lands to a Religious House or repugnant to the Estate as Feoffee of Land shall not alien or take the Profits or that Tenant in Tail shall not suffer a Recovery c. In these Cases the Conditions are only void and the Obligations remain single and yet Equity will relieve against them yet if a Feoffment be made of Land on Condition to kill J. S. the Condition is void but the Feoffment is good for the state of the Land is setled and executed in the Feoffee and cannot be taken back but by the performance of the Condition which is void If a Man make a Feoffment in Fee on Condition that he shall not alien this Condition is repugnant and against Law and the state of the Feoffee absolute but if the Feoffee be bound in a Bond that the Feoffee or his Heirs shall not alien or take the profits this is good for he may notwithstanding alien or take the profits if he will forfeit his Bond Co. Lit. fol. 206. a. b. A Man is bound to do a thing unlawful at present which in time may be made lawful as a Feoffment of a Strangers Lands or of the Lands of an Alien c. in these Cases he is bound to do it and at his peril he must obtain Power to do them Lit. Rep. 86. Condition was That if the Defendant shall procure one J. S. to make reasonable Recompence to the Plaintiff for certain Beasts which he wrongfully took from the Plaintiff that then c. the Defendant saith de facto J. S. had stollen the Beasts and was indicted and so the Condition being against Law the Obligation was void Per Cur. where the Condition shall be said against Law and therefore the Obligation void the same ought to be intended where the Condition is expresly against the Law in express words and not for Matter out of the Condition as it is here Judgment pro quer 1 Leon. Case 99. Brook and King Conditions against Common Law Besides what hath been said before in general take some few Cases of Conditions against Common Law Maintenance A Condition to maintain any Suit unlawfully though no Act be done for if it be unlawful to be done the Bond is void The Condition is If J. S. the principal and J. H. and J. M. do pay c. all such Sums which are due and shall be due in such Suits The Under-Sheriff makes a Bond to the High-Sheriff that he shall not return Venire Fac. not intermeddle with Executions until he be acquainted it is naught and against Law 1 Brownl Rep. 64 65. Hobart p. 14. Norton and Sims That the Under-Sheriff shall not execute any Process of Execution without special Warrant and Assent of the Sheriff the Bond is void 2 Brownl Rep. p. 280 Chamberlain and Goldsmith 1 Rolls Abridg. p. 417. Norton and Sims A Bond to save J.S. harmless from such aâ— Appeal of Robbery as B. had against him is void 18 E. 4.28 A Condition to renounce an Administration is good 25 E. 4.30 A Condition that he should not molest or hurt the Obligee in his Lands or Goods ratione alicuâ— rei cujuscunque it shall be intended he shall not hurt tortiously but not to restrain him from prosecuting the Obligee for Felony or other just cause and so not against Law Crook Eliz. fo 705. Dolson and Crew Conditions against Statute-Law Against the Stat. 32 H. 8. Of Leuses made is Aliens DEbt upon Bond to perform Covenants in an Indenture which was to pay Rent The Defendant pleads Stat. 32 H. 8. which maltes Leases to Alien Artificers void and saith that the Defendant was an Alien born at Paris and avâ—s the three points of the Statute 1. That the House was a Mansion House at the time 2. That â—e viz. the Defendant was an Alien 3. That â—e was an Artificer The Plaintiff replies the Defendant was an Alien Artificer demurr Per Cur. the Replication not double but because he â—ad not said the place where he was born in Enâ—land it was ill Siderfin p. 357. Freeman and King The Form of the Plea Vid. 1 Saunders 5. Jevens â—nd Harwich Vid. Keble Against Stat. 5 6 E. 6. c. 16. Of buying of Offices THE Office of Armourer is within that Statute Stiles Rep. f. 29. Hill and Farmer The
Anders 1 Rep. p. 4. A Bond forfeited by the default of the Obligor as a Surrender of a Term Vid. Poph. p. 39. Forth and Holborough Crook Eliz. 313. mesme Case The Condition was whereas Dr. Drury had let Land to the Defendant for 17 years if the Defendant or his Executors paid to D. G. a Stranger 10 l. yearly during the said 17 years if he or his Assigns shall and may so long occupy the Lands The Defendant pleads that he within five years surrendred the Lands to Dr. Drury Action lies for tho he surrendred yet as to a Stranger his Estate is not determined Condition insensible and uncertain THE Condition was upon Oyer That whereas the above bounden c. shall and will c. where the same should have been if the above bounden c. shall and will c. this per Cur. is a void Condition the same being insensible and not compulsory as it ought and so the Obligation is single 2 Bulstr 133. Marker and Cross If an Obligation be made by A. to B. with a Condition that A. shall keep B. without damage against J. S. for 10 l. in which the Obligee is bound to the Obligor this Condition is void and the Obligation single So if A. be bound to B. with a Condition to save him harmless and doth not say for what or against whom 39 H. 6.10 1 Sanders p. 65. Butler and Wig. The Condition of c. is such That if c. then the Condition of this Obligation shall be void the last words are insensible and void and the Condition is good though these words then this Obligation shall be void had been left out 2 Sanders 78. Maleverer and Hawksby Condition Copulative A Condition that if the Plaintiff enjoyed such Land till the full age of J. S. and if J. S. within a month after his full age made assurance to the Plaintiff of the same Land that then c. The Defendant pleads J. S. is not yet of full age and because he did not answer whether he had enjoyed it in the mean time and the Condition is in the copulacive it was adjudged pro Querente Crook Eliz. p. 870. Waller and Croor If the Condition be in the copulative and it is not possible to be so performed it shall be taken in the disjunctive as if he and his Executors shall do such a thing this is in the disjunctive because he may not have an Executor in his Life so if he and his Assigns shall sell certain Lands 1 Rols Abridg 444. A Condition to make Assurance of Land to an Obligee and his Heirs and after the Obligee dies it must be made to his Heirs the Copulative shall be intended a Disjunctive 1 Rols Abr. 450 451. Horn and May. Condition Disjunctive IF a Man be bound to perform all the Covenants in an Indenture if all are in the affirmative he may plead generally performance of all but if any be in the negative he ought to plead to them specially and to the rest generally So if any of them are in the Disjunctive he may shew which of them he had performed and if any are to be done on Record he ought to shew this especially Doct. pl. 58. Co. Lit. 303. b. The Condition was if he paid the Rent reserved at the Feasts mentioned in the Lease or within ten days or within six months according to a later agreement that then c. The Defendant pleads the Indenture verbatim and that he hath performed all the Covenants Payments and Agreements contained in the Indenture secundum formam effectum Indenturae Conditionis praed it is ill for he cannot plead payment generally for he hath Election to pay it at which of those days he will Crook Car. 421. Horn and Barber If the Condition be in the disjunctive he need not to answer but to one generally and that is true where the Condition goes in defeasance of the Obligation Aliter where the Condition not being performed makes the Obligation good there the Disjunctive ought to be perform on both parts per Brian 4 H. 7.12 c. Upon intention of Marriage If Abigail survive J. S. and if she do not receive within two years after the death of J. S. 200 l. either by his last Will or by the Custom of London that then the Obligor shall pay to the said Abigail within one year after the said two years 100 l. Abigail survived J. S. and she died deins two years after his death per Cur. pro Def. For Abigail dying within the said two years it became impossible that this part should be performed by the Act of God and therefore the Obligor is not bound to perform the other part Jones 171. Wood and Bates Palm Rep. 513. mesme Case 9 El. Dyer Elin and Laughter 1 Rolls Abr. 451. Wood's Case Contra ideo vide The Condition when the Obligor should come to his Aunt he would enfeoff the Obligee or the Heirs of his Body and the Obligee when the Obligor came to his Aunt requested him to enfeoff him which the Obligor refused to do the Obligation is forfeited For though the Condition was in the Disjunctive and the Condition is always for the benefit of the Obligor yet because he was alive when the Obligor came to his Aunt and it was not possible to enfeoff his Heir therefore he ought to perform such part of the disjunctive that then was possible 21 Ed. 3.29 b. cited 5 Rep. 112. Mallorys Case A Condition if the Obligor pay so much Mony then the Obligation to be void or otherwise it shall be lawful for the Obligee to enjoy such Lands The Defendant pleads enjoyment the Plaintiff demurs adjudged pro Quer. the words concerning the Land being idle Siderfin p. 312. 2 Keble 131. Ferrers and Newton 117. Condition disjunctive Election of Obligor Obligee COndition if he paid to A. or his Heirs annually 12 l. at Michaelmaâ— and Christmas or paid to him or his Heirs at any of the said Feasts 150 l. then c. and demurs because the Obligor hath any time to pay one or other and that there is not any breach as long as he liveth so Action is brought before breach sed per Cur. though the Obligor hath Election yet he ought to pay the 12 l. yearly till he pay the 150 l. and because he hath not alledged payment of the one or the other the Bond is forfeited Cro. Jac. 594. Abbot and Rookwood and he hath lost his Election 2 Rolls Rep. 215. mesme Case Condition if Obligor before M. make a Leâ—se to the Obligee for 31 ans if A. will assent and if he will not then for 21 years c. A. will not assent the Lease for 21 years ought to be made before M. Dyer 18 Eliz. 347. 1 Rolls Abr. 446. Condition to enfeoff the Obligee of D. or S. Obligee hath Election 18 Ed. 4.17 b. So if it had been upon request or to pay 20
the day 2 Keb. 628. Chapman and Wyn. vide plus de hoc infra Tit. Pleading In what Cases a collateral thing may be given in satisfaction of a Condition for payment of some other thing in lieu of Mony ACceptance of another Bond no good Plea so of a Statute Cro. Car. 85. vide 3 Bulst 148. 1 Rolls Rep. 266. Foorwood and Dickens The Defendant pleads he paid an Horse in name of the 20 s. or sold Land to the Plaintiff for it it s a good performance 11 H. 7.21 If a Man be bound in 20 l. to do a collateral Act as to make a Feoffment to be bound in a Statute to render a true account there Mony or any other thing given in satisfaction is not any performance of the Condition 9 Rep. Peyto's Case 1 Rolls Abr. 455. But where the Condition is to pay Mony there any other collateral thing will be satisfaction id ibid. A Man bound in 200 Quarters of Corn on condition to pay 20 l. a Ring or Horse or other thing collateral is satisfaction 9 Rep. 79. Peyto's Case But if the Condition were to pay 5 Quarters Mony or other collateral thing is not satisfaction because of the original Contract ib. ibid. If the Condition be to pay a lesser Sum at the day if the Obligee agree he shall pay an Horse or other thing in satisfaction yet if he refuse this at the day the Obligor ought to pay that lesser Sum at the day 1 Rolls Abr. 456. vide plus ibid. A Condition was to pay c. on the Birth day of the first Child of the Obligee the Defendant pleads after the Bond entred into and before the Birth of the Child the Plaintiff accepted of the Defendant one Load of Lime in full satisfaction of the said Debt and in full discharge dicti scripti Obligatorii it s no good Plea but he might well have pleaded this Acceptance in full satisfaction of the Sum of Mony contained in the Condition of the Bond 1 Bulst 66. Cro. Jac. 254. Yelv. p. 192. 1 Brownl Rep. 109. Neal and Sheffield If a Condition be to build an House of so much in length c. he may not plead another Agreement in other manner in satisfaction of this unless it be by Deed. Entring a new Obligation with Surety is no discharge of the first for it s but a thing in action and not present satisfaction 1 Rolls Abr. 470. Hawes and Burch Lovelace and Andrews so entring into Obligation is no satisfaction of a Statute ibid. 12 H. 4.23 b. A Condition to pay 25 l. at Michaelmas and the Obligor lets Land to B. the Obligee rendring 35 l. Rent at the said Feast and after and before the day of payment concordat agreeat est that the Obligee shall retain 25 l. of the said Rent in satisfaction of the Bond and for the residue he shall answer the Obligor and the Obligor because of the said Agreement doth not pay the 25 l. at the day the Obligation is forfeited this Agreement can be no discharge for the Rent at the time of the Agreement was not due 1 Rolls Abr. 470. Harrington and Andrews A Condition to pay 10 l. at a day which is not paid but after the day the Obligee accepts of a Statute-Staple in full satisfaction of the Obligation yet the Bond is in force and the Obligee had Election to sue which he will 1 Rolls Abr. 470. Bathaites Case 6 Co. 44. b. Higgens Case A Condition to pay 100 Marks at a day and at the day the Obligor and Obligee account together at another place and for that the Obligee owes to the Obligor 20 l. by other Contract the Obligee allows the 20 l. in the payment of the 100 Marks this is a good satisfaction of the Condition its payment by way of retainer 1 Rolls Abr. p. 471 475. The Obligor and Obligee before the day of payment agree that the Obligor shall do several things and amongst others to assign his Interest in the Farm of the Customs of French Wines and he pleads he hath done all in particular and shews how and it appearing to the Court that he may not by Law assign his Interest in the said Customs though the Obligee had enjoyed them yet this is not a good discharge of the Obligation in as much as this is like to an Accord so that all ought to be performed otherwise it s not good for that the Obligee had not any remedy for this that is not performed 1 Rolls Abr. 471. Simons and Mowlstone A Condition to pay 20 l. at day and a Stranger surrenders a Copy-hold to the use of the Obligee in satisfaction of the 20 l. which the Obligee accepts this is a good satisfaction and discharge of the Obligation 1 Rolls 471. Grymes and Blofield vid. cont Cro. El. 541. A Condition to appear before the Plaintiff at D. such a day the Defendant saith he appeared before the Plaintiff at S. before the day which he accepted of Cur. pro Quer. because the Condition was to do a collateral thing and the acceptance of another thing cannot dispense therewith Cro. Eliz. p. 474. p. 38 Eliz. Nortons Case The Defendant pleads J. S. surrendred a Copy-hold Tenement to the use of the Plaintiff in satisfaction of the 20 l. which the Plaintiff accepted no Plea for J. S. is a meer Stranger to the Condition and satisfaction by him not good Cro. El. p. 541. Grimes and Blofield Time of payment or performance where time is limited IF I pay Mony due upon Bond before the day I am discharged for its a Duty presently 9 H. 7.21 a. The Defendant pleads payment at the day and place according to the Condition upon which they were at Issue the Jury find he paid it before the day and at another place and the Plaintiff accepted it Verdict was found for the Defendant for payment before the day is payment at the day Cro. Trin. 31 El. Bond vers Richardson 1 Leon. p. 311. id Case 1 Anderson pl. 233. The Condition was to pay 100 l. on the 31st day of Septemb. the Defendant pleads payment at the day upon which Issue and found for the Plaintiff the payment being impossible it shall be paid presently this Issue is aided after Verdict by the Statute 13 Eliz. Latch p. 158. Gibbon and Purchase Cro. Car. 78. Jones 140. Debt for 300 l. the Defendant pleads he paid the Mony such a day whereas in truth the Case was there were two days of payment limited in the Obligation and the Defendant had paid part of the Mony on one day and the rest on the other and not all on one day the Plaintiff replies He did not pay the Mony at the day c. Issue and Verdict pro Quer. and in Arrest of Judgment per Rolls If you have two days of payment to plead and you relie upon one day in your pleading and Issue is joined upon that and it be found against you you
he is not bound to pay before Request 1 Rolls Abr. 438. Qu. A Condition to make assurance before the 10th of March and if the Obligee refuse the assurance and shall make Request to have 100 l. in satisfaction of it then if upon such Request within five Months after he pay it then c. he refused the assurance and ten years after he makes Request to have the 100 l. Per Cur. it is good and he may make Request during his Life Crook Eliz. p. 130. Boyton and Andrews Id. Case 1 Leon. p. 185. The Condition is to do a thing upon Request the Plaintiff must make Request to the person and not by Proclamation giving notice of the Request 1 Rolls Abr. 443. Gruit and Pinnel Request to c. Bridgm. Rep. 39. Allen and Wedgwood 1 Rolls Rep. 373. Crook Eliz. p. 62. Gallies Case Keilway 95. Place of Payment or Performance Where a Place is limited A Condition to pay Mony at London the Action laid in Shrewsbury 2 Leon. 37. Jay's Case If the Condition of an Obligation be to appear coram Justiciariis apud Westm he ought to appear in B. and not in B. R. Musgrave and Robinson 1 Rolls Abr. tit Condition 445. If a place of Payment be limited by the Condition he is not bound to pay this in any other place 17 E. 3.16 1 Rolls Abr. 445. If a place be limited by the Condition where it shall be performed the othere is not bound to receive this in another place If the Condition be to come to A. at Dale to aid him with his Counsel it is not performed if he tender his Counsel at the day at another place 1 Rolls Abridg. p. 446. In Debt on an Obligation to pay at the House of Y. in Woodstreet magna The Defendant pleads payment at the House of Y. generally and the Visne is from the Parish of Woodstreet generally Verdict and Judgment pro Quer. It is no Error it is only in Fact and should have been pleaded 1 Keb. 440. Ashburnham versus Braham The Condition was if he paid such a Sum of Mony at Newton Petrarch that then c. The Defendant pleads payment at the day at Newton praedict the Venire Fac. being at Newton only A Ven. de novo was awarded Crook Jac. p. 326. Dennis Case A Condition to pay 10 l. at S. such a day or 10 l. at S. such a day tender at D. the first day saves the Condition 22 Ed. 4.52 1 Rolls Abr. 444. A Condition to pay 10 l. at D. if the Obligee accept this at another place it 's a good performance sans fail 1 Rolls Abr. 456.11 Where no Place is limited IF no place be limited in the Condition for payment of the Mony he must tender the Mony to the person of the Obligee but if the Condition be to deliver 20 Quarters of Wheat or 20 Load of Timber c. The Obligor before the day must go to the Obligee and know where he will appoint to receive it and there it must be delivered If the Condition be to make a Feoffment it is sufficient to tender it upon the Land for there the Livery must pass Co. Lit. 210. b. If the Obligee be out of England he is not bound to seek him ibid. If a Man be bound to pay 20 l. at any time during his Life at a place certain the Obligor cannot tender the Mony at the place when he will for then the Obligee should be bound to a perpetual attendance but the Obligor must give the Obligee notice that at such a day he will pay the Mony and the Obligee must attend there to receive it for if the Obligor then and there tender the Mony he shall save the penalty of the Bond for ever Co. Lit. 211. a. But if the Obligor at at any time meet the Obligee at the place he may tender the Mony ibid. There is a difference between a place of payment limited in the Obligation and a place limited in the Condition of the Obligation For if I am bound to you in 20 l. to be paid at D. if I pay it to you at another place this shall not excuse me but if I am bound in 20 l. on Condition that I shall pay it you at D. if I pay this 20 l. at another place it is good if you receive it 11 H. 7.17 9 H. 7.20 b. Lord Cromwels Case If the Mony be paid at any other place and received before the day it is good Cook Lit. 211. a. A. is bound to B. that C. shall enfeoff D. such a day C. is bound to seek D. to give him notice and request him to be on the Land to receive the Feoffment ibid. Debt upon a Bond for payment of Mony there being no place named in the Obligation where it shall be paid The Defendant pleads the Plaintiff was beyond Sea at the day of payment and saith not uncore prist Per Cur. this a good cause of demurrer Siderfin p. 30. H. 12 13 Car. 2. B. R. Hobson and Rudge A Condition for a common Chirurgeon to instruct his Apprentice in his Trade and to keep him in domo sua propria servitio If he send him a Voyage to the East Indies to exercise his Trade it is a Forfeiture but he may send him to any place in England to a Patient Aliter if it were a Merchants Apprentice 1 Rolls Abr. tit Condition p. 445. Coventre and Boswel The Lessee is bound by an Obligation to pay the Rent the Lessee is not bound to seek the Lessor to tender it on the Land Hobart p. 8. Baker and Spain In Debt on an Obligation to pay at the House of one Y. in Woodstreet magna The Defendant pleads payment at the House of Y. generally and the Visne is of the Parish of Woodstreet generally Verdict pro Quer. and Judgment It is no Error it is only in Fact and should have been pleaded 1 Keble p. 440. Ashburnham versus Braham Debt in an inferior Court the Condition was for the payment of Mony at a time but no place was limited in the Condition for the payment thereof Judgment pro Quer. 'T was Error because there appears no place of payment So that by that it cannot appear whether the cause of Action lyeth within the Jurisdiction of the Court where the Action was brought or not therefore it should have been made appear by some part of the Record that the Mony was to be paid within the Jurisdiction of the Court which is not here done and therefore Judgment erroneous Stiles p. 2. Masterman's Case Judgment in the Court at Barnstaple upon an Obligation and assigns for Error that the Condition was to pay Mony at W. which is not within the Jurisdiction of the Court Per Rolls if it appear by the Declaration that the Mony was to be paid out of the Jurisdiction of the Court the Judgment is not good and it is not necessary to swear this Plea Stiles p. 225.
performance of Covenants the Breach ought to be more precise and particular than Actions of Covenants because of the Penalty yet if what is material and the substance of the Covenant be alledged it may suffice as a Covenant was that the Defendant a Bayliff should not let at large any Prisoner that should be arrested without Licence of the Plaintiff an Under-Gaoler The Breach was that the Defendant had let at large at Westminster sans licence c. such an one who was arrested but shews not the place or time of the Arrest Per Cur. he need not the Escape being the material part of the Covenant Siderfin H. 12 Car. 2. f. 30. Jenkins and Hancocks Debt by a Brewer on a Bond to perform Articles against his Clark one was that the Defendant should deliver such Ale and Beer weekly as should be delivered unto him to such Customers as he had in his Charge and to receive the Monies due for the same and should accompt with the Plaintiff every Saturday weekly for such Monies he should receive for Breach the Plaintiff assigns that the Defendant did not account with him for such Monies as he had received on Saturday the 25th c. Verdict pro Quer. Judgment was arrested for the Breach was uncertainly alledged because the Plaintiff doth not shew the Defendant had any Customers in his charge or who they were or that he had delivered Ale or Beer to them or received any Mony of them Stiles p. 473. Arnold and Floid A Covenant that he and his Executors and Assigns would repair a Mill and alledgeth that the Mill was defective in Reparations and the Defendant his Executors and Assigns did not repair it Def. demurs because he did not alledge that he not his Executors or Assigns did not repair it for if any of them did repair it the Action lies not and per Cur. it is naught But upon motion of the Court the Defendant waved his Demurrer and the Plaintiff amended Crook Eliz. p. 348. Cole and How If the breach of the Condition of an Obligation be ill assigned the Verdict shall not aid this Default Sanders 2 part 179. Hele and Wotton Kerby and Hansaker there cited Though the Action be well brought upon the Obligation yet when it appears the Condition was for performance of Covenants there can be no cause of Action without some Covenant broken and so shall not have Judgment though he hath a Verdict Hob. 14. in Sir Daniel Norton's Case Disability wherein the Obligor hath disabled himself to perform the Condition IF a day be limited to perform a Condition if the Obligor once disable himself to perform this although he be enabled afterwards before the day yet the Condition is broken as if the Condition be to enfeoff me before Michâ—mas if before the Feast he enfeoff another yet the Condition is broken 21 E. 4.55 The Condition is if he permit and suffer all his Lands c. to descend remain or revert to such an one his Son immediately after his decease without any Act c. The Obligor â—ells parcel of the same Lands though he purchase them again yet the Obligation is forfeited Benlow n. 34. p. 9. Sir A. Main by an Indenture demiseth Lands to Scot for 21 years and covenants at any time during the Life of Scot upon Surrender of his Lease to make a new Lease c. and an Obligation to reform the Covenants Sir A. Main pleads in Debt upon this Obligation that Scot did not surrender Scot replies that after the said Demise Sir A. M. had accepted a Fine sur omisance de droit come ceo and by the same Fine grant and renders the Land to the Conisee par 80 ans Defendant demurs Per Cur. 1. Sir A. M. by the Fine levied had disabled himself either to take a Surrender or to make a new Lease and so hath broken his Covenant 2. Though the first Act was to be done by Scot viz. the Surrender and Scot may surrender if the term for 80 years be the Interest of a future term yet Scot shall have his Action without making any Surrender for after Surrender Sir A. M. cannot make a new Lease which is the Effect of the Surrender he hath disabled himself 5 Rep. 20. b. Sir Anthony Mains Case Poph. 109. Benl n. 121 125. So if he disable himself to perform it in the same plight as Feoffee on Condition to re-enfeoff grants a Rent-Charge marries a Wife c. this is a forfeiture of the Condition 44 E. 3.9 b. Coke on Litt. But if the Feoffee on a Condition to re-eneoff a Stranger and after another recovers the Land against him by default yet until Execution sued the Condition is not broken 44 E. 3.9 b. One promiseth to perform an Award which is that he shall after deliver an Obligation to another in which he is bound to him without limiting any time when this shall be performed If he bring Debt on the Bond and recover and after deliver the Obligation yet this is not any performance of the Condition for he ought to deliver this as it was at the time of the Award made Tr. 15 Jac. B. R. 1 Rolls Abridg. 447. Nichlâ— and Thomas If no time is limited if the Obligor be once disabled he is perpetually disabled 21 E. 4.54 b. Vid. Cases del Disability 1 Rolls Abr. 447 448. Conditions to perform particular Covenants To make Assurance TO make such Assurance as Counsel shall advise A Condition to make to the Obligee or his Assigns so good a Lease as Counsel shall advise and the Obligee appoints him to make a Lease to J. S. he must do it for it is not as shall be advised by Counsel Per Coke if the words were he shall make as good a Lease as Counsel shall devise he ought to have brought a Lease drawn by the advise of Counsel 1 Rolls Abr. 424. 1 Rols Rep. 373. Allen and Wedgwood To make such Assurance c. as the Plaintiffs Counsel shall devise it is not sufficient to plead he made such Assurance but that the Plaintiffs Counsel devised such Assurance which he had made Crook Eliz. 393. in Hutchinson's Case One covenants to make such Assurance c. as the Plaintiffs Counsel shall advise and he pleads performance of Covenants he cannot afterwards say Consilium non dedit advisantentum in Specot and Sheer's Case Crook Eliz. 828. The Defendant covenants to assure such Lands by such Assurance as by the Counsel of the Plaintiff shall be devised the Breach assigned in this the Plaintiff caused such an Assurance to be drawn and ingrossed and put Wax to it and required the Defendant to execute it and he refused The Defendant demurs per Cur. it is no Breach because the Plaintiff himself devised it Crook Eliz. p. 297. More versus Roswel On Covenant that before such a day he would make sufficient Estate of Lands to such value to the Plaintiff for term of his Life as by the Plaintiffs Counsel
should be advised The Defendant pleads he made Estate in Lands of such a vaâ— c. he must shew what Estate was advised and what Land that so there may be an Issue 28 H. 8.1 b. A Condition to make such an Estate to the Plaintiff as his Counsel shall advise and saith Coâ—câ—lium non dedit advisamentum It was a Quaâ— whether he ought not to say concilium nullâ— dedit advisumentum But it is now setled a good Plea 11 H. 7.23 a. 6 H. 7.4 and need not â—ledge what persons were of his Counsel and that they gave no advise for the Plea is in the negative but if he plead his Counsel gave to him such advice he ought to plead what persons were of his Counsel Then the Replication was that J. W. was of the Plaintiffs Counsel and no more and he made such advice c. which advisement the Plaintiff notified to the Defendant Issue on the Advice 6 H. 7.4 The Defendant by protestation saith that the Plaintiffs Counsel made not any devise and pro placito that he was not required The Plaintiff saith J. S. his Counsel devised a Release and that he required the Defendant to seal it and he refused The Defendant rejoyns he did not refuse it is a departure and the Issue is a Jeofall 28 H. â— Dyer 31. b. The Condition is to make such assurance of this Mannor of D. as the Counsel of the other shall advise and the Counsel deviseth that he shall be bound in a certain Obligation that the other shall enjoy the Mannor peaceably He is not bound to perform this for this is not any assurance within the intent of the Covenant 1 Rolls Abridg. p. 423. part 1. But if a Man be bound to do such Acts for the assurance of the Mannor of D. as the Counsel of the other shall devise and the Counsel adviseth that he shall make an Obligation or Statute that the other shall enjoy this he ought to perform this 1 Rolls Abr. 431. per Poph. To make such assurances of c. as Counsel of c. shall devise and the Defendant by advice of Counsel demanded a Release with Warranty Per Cur. this is not any assurance but a means to recover in value 2 Leon. p. 130. Wyâ— and Throgmorton If a Man covenant to make such assurance as the Counsel of the Covenatee shall devise of an Annuity of 30 l. and of 300 l. in Mony If the Counsel devise he shall make an Obligation to pay the Annuity and the 300 l. at certain days he is not bound to perform it the Obligation being no assurance of the Annuity 1 Rolls Rep. 423. If A. Covenant to make such assurance for the payment of 100 l. to R. as his Counsel shall devise and his Counsel deviseth that A. shall make an Obligation of 1000 l. for the payment of an 100 l. he ought to perform this Otherwise if it had been to make such reason his assurance as the Counsel of the Covenantee shall devise 1 Rollâ— Abr. p. 423. A Conclusion to seal such assurance of Copy-hold as should be devised The Plaintiff devised that the Defendant should seal a Letter of Attorny made to one to surrender the Copyhold for him and also seal a Bond for quiet enjoyment The Defendant may refuse for he is not bound to seal the Obligation and after Verdict Judgment was arrested 1 Brownl p. 93. Stamford and Cookes A. covenants with B. to make such reasonable assurance to B. in Fee of such Land reserving to A. and his Heirs 20 s. Rent per annum as the Counsel of B. shall advise and after B. tenders to A. a Deed poll by which A. shall enfeoff B. of Land in Fee reserving the said Rent to A. in Fee this is not any such reasonable assurance to bind A. to seal it for this is a Rent Seck and the Deed belongs to the Feoffee and then A. without the Deed may not have any Remedy for the Rent 1 Rolls Abr. 423. Guppage and Ascaâ— It ought to have been a Feoffment by Indenture rendring Rent Id. ibid. Sect. 7. If the Condition be to make such assurance in Law of certain Lands to the Obligee as by the Counsel of the Obligee upon Request shall be advised and after J. S. was of the Counsel of the Obligee and gives his advice to the Obligee that the Obligor shall make a certain assurance and the Obligee gives notice to the Obligor of the said advice and requires him to perform it he ought to perform it for its more convenient that the Counsel should give the advice to the Obligee than to the Obligor for that the Obligor knows not whether he be his Counsel in this matter 5 Rep. Higgenbotham's Case A Covenant is to make a Lease on such Covenants as the Plaintiff or his Counsel shall advise the Plaintiff must tender this Lease 3 Keble 183. Twiford and Buckly If the Condition be to assure certain Lands to such a person which the Obligee shall name and after he assures this to the Obligee himself it is a good performance though it be not alledged that the Obligee named himself for this acceptance is a nomination of himself 1 Rolls Abridg. p. 424. Husego and Wild. At whose Costs IF the assurances are to be made at the costs of him to whom they ought to be made he may require the assurance to be made by parcels Aliter when the Covenantor is to be at the charges yet there if the party require an assurance of parcel the Covenantor must do it but then he is discharged from making any assurance of that which remains Crook Eliz. p. 681. Washington's Case A Condition to make a sufficient Lease to the Obligee before such a day the same to be made at the costs of the Obligee It is a good Plea that the Plaintiff did not tender the Costs to him and if then that he was ready More n. 72. That the Covenantor at the Costs of the Covenantee would assure such Lands before such a day the Covenantor is to make the assurance what he pleaseth and ought to give notice what assurance he will make and his readiness that the other may know what costs he is to tender Crook Eliz. f. 517. Halling and Connard Who to do the first Act as Notice Request Tender Vid. infra Deseasance of a Statute that if E. M. and his Wife before such a day should make such good assurance of an House to W. with such Covenants as he should accept and signifie under his hand to be reasonable or should pay to him such a day 350 l. then the Statute should be void E. M. in Audita Querela furmiseth that he and his Wife were always ready to have made the assurance and that the Conisee had not signified what assurance he would accept nor required any and yet he had sued Execution Demurrer adjudged for the Defendant For he is not bound to devise any assurance but it is at
it presently for the Covenant is peremptory 1 Anders p. 122. Case 117. Andrews and Eddon 1 Rolls Abr. 424. Wotton and Crook 2 Rep. Mansers Case The Condition is that he shall make a good absolute perfect Assurance in Fee of Copyhold Lands and after he renders this upon Condition of payment of Mony it is not any performance for the Assurance ought to be absolute so if it were to make farther Assurance if he make Assurance on Condition it is not a performance 1 Rolls Abr. 425. Risbon and Gayre It must not only be an absolute but an effectual Conveyance If a Man be bound to surrender a Copyhold to the use of A. and his Heirs on consideration of Mony if he surrender into the Tenants hands he must get it presented for it must be an effectual Surrender as if a Man be bound to make a Feoffment to me upon Request if I request him him to make a Deed of Feoffment with Letter of Attorny to B. to make Livery to me and he doth so this is a good inception yet if Livery be not made it is a Forfeiture of the Condition 1 Rolls Abridg. p. 425. Shan and Belby A Condition to make assurance of Lands to the Obligee and his Heirs and the Obligee dies yet he must make assurance to the Heir for the copulative shall be taken as a disjunctive 1 Rolls Abr. p. 450. Horn and May. Dubitat in Jones p. 181. Eaton and Laughter For it was the intent the Heir should take by descent and not by purchase A Condition to enfeoff two before such a day and one dies before the day yet he ought to enfeoff the other 1 Rolls Abr. 451. Horn and May. 5 Rep. 22. a. Benl n. 31. contra A Condition to give and grant to him his Heirs and Assigns The Defendant pleads he hath been ready to give and grant ill Plea for he must plead that he did it Aliter if the words had been as Counsel should advise 1 Brownl Kep 75. Chapman and Pescod Condition to enfeoff Lands of such an yearly value The Defendant pleads he enfeoft him of the Mannor of D. in Com. W. and of the Mannor of S. in the County of S. Cave Replication for it cannot be tryed 11 H. 7.14 One is obliged to assure 20 Acres of Land the Acres shall be accounted according to the Estimation of the Country where the Lands lie and not according to the measure limited in the Statute Cro. Eliz. p. 665. Some and Taylor One by Indenture bargains and sells to the Obligee all his Lands in D. and covenants that he will make farther assurance of all his Lands the Breach assigned was because he did not make farther assurance of those Lands and it appears by the pleading that the Bargainor had enfeofâ— the Bargainee before all his Lands there so as he had not any Lands at the time of the Bargain and Sale and if he then had not then the Breach is not well assigned and so held tota Curia But if one enfeoffs another of his Lands and afterwards bargains and sells them by name and covenants to make assurance he is bound to make assurance accordingly Crook Eliz. p. 833. Laâ— and Hodges The Condition was whereas the Defendant had granted an Annuity to the Plaintiff that the Defendant should make farther assurance to the Plaintiff for the enjoying thereof within one Month when he should be thereunto required the Month shall begin from the time of the Request Stileâ— p. 242. Wentworth's Case A Man by Deed indented bargained and sold Lands to another in Fee and covenanted by the same Deed to make him a good and sufficient Estate in the said Lands before Christmas next and afterwards before Christmas the Bargainoâ— acknowledged the Deed and the same is enrolled per tot Cur. by the Act the Covenant was not performed for he ought have levied a Fine or made a Feoffment c. 3. Leon. p. 1. Anonymus Condition of Covenant for quiet Enjoyment D. was bound to H. on Condition that H. and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleads the Surrender and that the Plaintiff entred and might have enjoyed the Lands The Plaintiff replies that after his Entry one G. entred upon him and ousted him Per Cur. Replication ill because he did not shew he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer Vaugh. p. 121 122. Hammonds Case The Defendant leased to the Plaintiff an House by the words of Demise and Grant which words import a Covenant in Law and the Lessor covenanteth that the Lessee shall enjoy the House during the term without Eviction by the Lessor or any claiming under him which express Covenant was narrower than the other and gave Bond to perform Covenants The Plaintiff grants his term over to a Stranger The Plaintiff assigned for Breach that one S. entred upon the Assignee and upon Ejectment recovered against the Assignee Debt was brought upon this Bond per Cur. by this Covenant in Law the Assignee shall have a Writ of Covenant and for this breaking the Covenant in Law the Obligation was forfeited but because the Plaintiff did not shew that S. had an ancient Title for otherwise the Covenant in Law was not broken therefore Judgment against the Plaintiff 4 Co. Rep. 80. b. Nokes Case Cro. El. p. 674. id Case If I. covenanteth with B. to enter into a Bond to him for enjoyment of such Lands and do not express what Sum he shall be bound in such a Sum as amounteth to the value of the Land 5 Rep. 78. a. in Samons Case The Defendant pleads performance of Covenants the Plaintiff alledgeth a Breach upon this Covenant that the Lessee should enjoy the Land without any lawful interruption or disturbance of the Lessor or his Executors and shews that the Executors entred upon him and ousted him and shews not any interruption for a just cause and adjudged good 1 Brownl 80. Ratcliffs Case Debt on Bond to perform Covenants the Covenant was for quiet enjoyment without let trouble or interruption c. the Plaintiff assigned his Breach that he forbad his Tenant to pay his Rent Per Cur. it s no Breach unless there were some other Act 1 Brownl p. 81 Witchcot and Liveseys Case Vide Moor n. 156. Broughton and Conrey Where the Defendant is not bound to warrant peaceable possession to the Vendee but only for Acts by himself done or to be done The Condition was If the Defendant warrant and defend an Ox-Gang of Land to the Plaintiff against J. S. and all others that then c. Resolved that the word defend shall be taken as a Defence against lawful Titles and not against Trespasses And per Anderson one Covenants to make a Lease of all his Lands in D. and in D. he hath as well Copyhold as Freehold Lands he is not by this Covenant to make a Lease of his Copyhold Land for
1 Rolls Abr. p. 425. Q. 1. A Condition to perform Covenants in a Lease one was That he should enjoy such Lands let to him quietly without interruption and the Plaintiff in his Replication sheweth in facto that the Defendant the 20th of March 30 Eliz. had disturbed him and in that assigned the Breach the Defendant by Rejoynder sheweth that in the Indenture there was a Proviso that if he paid 10 l. the 31 of March 30 Eliz. that the Indenture and all therein contained should be void and alledged he paid 10 l. at the day but this was after the disturbance supposed and the Plaintiff demurs Judgment pro Quer. for by the Covenant broken before the Condition performed the Obligation was forfeited and it s not material that the Covenants became void before the Action brought but by Wray if the Proviso had been that upon the payment of the 10 l. as well the Obligation as the Indenture should be void â—lâ— for then the Bond was void before the Action brought so where a Parson made a Lease for years in which were divers Covenants and after he became non resident by which the Indenture became void yet he may maintain an Action of Covenant for a Covenant broken before his non Residency Cro. Eliz. p. 244. Hill and Pilkington Dyer 57. Bylones Case The Condition was If the Obligee his Heirs and Assigns shall and may lawfully hold and enjoy a Mesuage c. without the let c. of the Obligor or his Heirs or of every other Person discharged or upon reasonable request saved harmless by the said Obligor from all former Gifts c. the Defendant pleads no request was made to save him harmless Judgment pro Quer. because the Defendant hath not answered to all the the Conditions viz. to enjoying of the Land and there were two Conditions viz. the enjoying and saving harmless Moor n. 756. Creswell and Holmes Debt to perform Covenants in a Lease one was for quiet enjoyment against all claiming Title the Plaintiff assigns for Breach that a Stranger entred but saith not habens titulum Hales habens titulum at that time would have done Dyers Case is another entred claiming an Interest but that is not enough for he may claim under the Lessee himself If the Covenant had been to save him harmless against all lawful and unlawful Titles yet it must appear that he that entred did not claim under the Lessee himself Mod. Rep. 101. 3 Keble 246. Norman and Foster Hob. 34. Tisdale and Essex Moor 861. The Condition was if neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of such Lands by indirect means but by due course of Law 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 Plea good 2 Leon. 197. Dighton and Clark K. was seized and leased for years to J. H. Husband of Isabel and J. H. being so possessed by his Will devised that the said Isabel should have the use and occupation of the said Lands for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired J. H. died Isabel entred to whom the said Kidwilly conveyed by Feoffment the said Lands in Fee and covenanted that the said Lands from thence should be clearly exonerated de omnibus prioribus barganiis titulis juribus omnibus aliis oneribus quibuscunque Isabel married and the Son entred Per Cur. this possibility which was in the Son at the time of the Feoffment though it was not actual yet the Land was not discharged of all former Rights Titles and Charges by the Marriage of the said Isabel it s become an actual Charge and the Term is not extinct by the acceptance of the Feoffment 1 Leon. p. 92. n. 120. Hamington and Rydear I am bound in a Statute and afterwards sell my Land with Covenant prout supra here the Land is not charged but if the Condition in the Defeasance be broken so as the Conusee extends now the Covenant is broken 1 Leon. p. 93. ibid. On Covenant to enjoy absque legali molestatione of the Defendant the Defendant pleads performance the Plaintiff replies by entry of the Defendant Lessor which is intended tortious and and so no breach for which cause the Defendant demurs Per Moreton Entry and lawful Entry are all one as to the Lessor and Rainsford conceived a general Entry no Breach the general Covenant being restrained by special Covenant against any lawful let 2 Keb. 717. Lee and Dalfton Debt on Bond to perform Covenants one of which was That the Plaintiff should not be interrupted in his possession of certain Lands by any Person that had lawful Title and particularly that he should not be interrupted by one Thomas Antony by vertue of any such Title the Defendant pleads performance the Plaintiff replies 1 No. 20 Car. The Defendant made the Lease to the Plaintiff and 3 No. he entred and that 17 Aug. 20 Car. before the Defendant made a Lease to Antony for years yet to come who 20 Aug. 20 Car. entred the Defendant pleads the Lease to Antony was on Condition of re-entry for non-payment of Rent and that before the Lease made to the Plaintiff the Rent was behind legitâ— demandat secundum formam Indenturae and he re-entred and made the Lease to the Plaintiff upon general Demurrer per Cur. the Demand was not sufficiently alledged for he ought to set forth when and where it was made that the Court might know if it were legal but for a â—w in the Plaintiffs Replication because he alledged his Entry after the Lease made to Antony so that it appears not he was interrupted by him the Opinion of the Court was against the Plaintiff Allen p 19. Colman and Painter Debt on Bond conditioned that if the Obligee his Executors and Assigns from the time of the Obligation may enjoy such Land c. The Defendant pleads that post obligationem until the day of the Bill the Plaintiff had enjoyed that Land Plaintiff demurs 1. Because the Defendant doth not say a die confectionis scripti obligatorii semper post non allocatur a Bar is good to common intent and it shall be taken he always enjoyed it unless the contrary be shewn which must come on the Plaintiffs part 2. Because he does not plead the Plaintiff and his Assigns enjoyed it non allocatur for it shall not be intended the Plaintiff made an Assignment unless he himself had shewn it Judgment pro Def. but it was moved to have the Plaintiff discontinue his Suit for otherwise he should be barred of his Debt whereas he had good cause of Action and the Court adjourned it till next Term that in the interim he might discontinue Cro. Car. 195. Harlow and Wright The Plaintiff
by Deed indented leased to the Defendant a Farm called D. except one Close by Name Lessee Defendant was bound in a Bond to perform all the Covenants and Agreements in the said Indenture and pleaded he had performed all the Covenants the Plaintiff assigns for breach that the Defendant entred into the Close excepted the Defendant demurs Per Cur. the Obligation is not forfeited by this disturbance this Exception is not such an Agreement as is within the intent of the Condition it s an Agreement that the Land excepted shall not pass by the Demise but no Agreement that he shall occupy but sometimes an Exception is an Agreement that shall charge the Lessee but this when he agrees on his part that the Lessor shall have a thing dehors which he had not before as except a Way or Common or any other Profit a Prender that is Agreement of the Lessee that he shall have the Profit and if he bound to perform all Covenants and Agreements if he disturb him in this he shall forfeit the Obligation Cro. Eliz. p. 657. Lady Russel versus Gullwell Moor n. 713. id Case In a Lease for years the Defendant Covenants that the Plaintiff should enjoy it during the Term on Demurrer the Case was Tenant pur vie levies a Fine to him in Reversion come ceo c. the uses were to the Conusee and his Heirs on condition to pay to the Tenant pur vic 4 l. per ann during his life and upon default that it should be to the use of the Conusor for his life the Conusee made a Feoffment to the Defendant who leased to the Plaintiff the 4 l. was not paid nor demanded the Tenant pur vie enters on the Plaintiff this is a breach of the Condition without any demand of the Rent for its a Sum in gross and not issuing out of the Land the Covenant is that the Lessee shall absolutely enjoy it and this Condition is properly to be performed by him who hath the Freehold and it was held that this Feoffment had not destroyed the future use which is to arise for non-performance of the Condition Cro. El. 688. Smith and Warren Two make a Lease for years by Indenture and covenants that the Lessee should not be disturbed nor any incumbrance made by them one of the Lessors makes a Lease to a Stranger who disturbs on Bond to perform Covenants it s a breach of the Condition for them shall not be taken jointly Lach. p. 161. Merritons Case Condition of the Obligation was That the Plaintiff should have hold and enjoy Lands acquitted from all Charges and Incumbrances and for breach the Plaintiff shew there was a Rent-charge granted by the Predecessor under whom the Defendant claimed which is yet undischarged the Defendant demurred because the acquittal goes to the having and holding the Land and it s not shewed that the Plaintiff was ever in possession nor that he was charged or endamaged to which Twisden and Keeling agreed but by Windham the Defendant ought to shew how he had discharged and acquitted from the very Rent and not to let it perpetually hang over him but by all the Court if the Acquittal refer to the Land it self or to the Person the Defendant must shew how 1 Keb. fol. 927. King and Standish A Covenant that the Indenture of a Lease at time of the Assignment is a good true and indefeasible Lease and that the Plaintiff shall enjoy c. without the let or interruption of the Defendant or of any claiming by from or under him and shews for breach that before he that made the Lease had any thing one J. S. was seized in Fee and that he which made the Lease entred upon him and disseised and leased prout and that J. S. re-entred upon him upon which Replication the Defendant demurs per Cur. the word indefeasible Lease shall be construed as a distinct Sentence from the last words that he shall enjoy it without the interruption of the Defendant Siderfin p. 328. Gainsford and Griffith 1 Sanders p. 51. Johnson and Vavisor Joyntenants of a Mill by Lease for years Vavisor assigns all his Interest in the Mill to another without Johnsons assent or privity and dies Johnson after recited this Indenture by Lease and that all came to him by Survivorship grants the said Mill and all his Estate Title and Interest to Procter and covenants that he shall quietly enjoy it notwithstanding any Act done by him and Bond of Covenants Act. de Det sur Bond. Johnson pleads that the Plaintiff had enjoyed this notwithstanding any Act done by him Procter replied that Vavisor Joyntenant with Johnson assigned his Estate to J. D. who entred and expelled him The Defendant demurs adjudged against the Defendant for the Grant was never good for he had no power to grant one Moiety and yet he had expresly granted the Mill to Procter And the Condition of the Obligation being to perform all Grants the Grant being defective at the first as to a Moiety which is the Substance of the Agreement of all the Parties this is not qualified by the Covenant ensuing and it is not like to Nokes Cass 4 Rep. for there the Grant was good for the whole and becomes ill by Eviction afterwards and therefore the Covenant ensuing qualified the general Covenant Yelv. p. 175. Johnson and Procter Lit. 206. 1 Bulstr 3 4. A Covenant that the Lessee shall enjoy against the Lessor and all claiming under him The Defendant exhibited a Bill whereby the Lessor appeared to be in Trust and adjudged this was no Breach Selby and Chute cited 2 Keb. 288. 1 Brownl p. 23. The Covenant was if the Defendant sued or troubled charged or vexed the Plaintiff Per Cur. a Suit in Chancery is within the Condition 2 Keb. 288. Ashton and Martin A Condition to surrender a Copyhold and that the Plaintiff shall enjoy this without the let of any claiming under the Defendant and of one Lancelot Simons The Defendant pleaded Surrender and that the Plaintiff had quietly enjoyed this The Plaintiff replies that one Jane Simons claiming under Lanceolet ousts him Demurrer and Judgment pro Quer. The Case was this Copyhold was granted to Patience Hussy for Life the Remainder to Lanceolet S. in Fee and that after and before the Obligation Lancelot surrenders his Remainder to the use of Patience for Life and after to the use of Lancelot and Jane for their Lives and after to Lancelot's Heirs Lancelot and Patience dye and after the Obligation Jane enters The cause of Demurrer was that Jane took nothing by the Surrender for the Surrender to P. H. pur vie was void she having an Estate pur vie before and consequently the Remainders by notice upon this void Estate are void also Dut per Cur. the Estate limited to Jane S. shall be by way of present Estate and mediate Settlement and not by way of Remainder 1 Sanders p. 150. Wade and Balch 2 Keb. 341. Id. Case
Siderfin p. 360. The Condition was whereas J. F. claimed to have Lease for years of the M. of D. made to him by W. If the said Defendant keep without damage the Plaintiff from all Claim and Interest to be challenged by J. F. de tempore in tempus during the years c. The Defendant pleaded after making the Obligation until the Action brought The Plaintiff was not damnified ratione dimissionis Plea good for if he were not damnified ratione dimissionis then he was not damnified by reason of any Claim or Interest 3 Leon. 118. Brainthwait's Case To enjoy absque legali impedimento of J. S. the Breach is that J. S. habens jus entred it is a sufficient Breach 2 Keble 878. Procter and Newton On Covenant to acknowledg a Fine A Covenant that the Vendor should make farther Assurance at the Costs and Charges of the Purchasor It was alledged for Breach that a Note of a Fine was devised and ingrossed in Parchment and delivered to the Vendee to acknowledg the Fine at the Assizes which he refused to do and the Plaintiffs Breach was demurred upon because he did not offer Costs to the Vendee and per Cur. its ill 1 Brownl Rep. p. 70. Preston and Dawson On a Covenant for farther Assurance the Breach is Advice and Request of a Fine by such a Counsel and shews Dedimus Potestatem to A. and to revive the Conusance and the Obligor being requested refuseth though he shew not any Writ of Covenant was depending or that the Writ was delivered to the Commissioners and though the Fine was with Warranty yet because the Covenant is not to levy a Fine but to do such Acts as shall be required Judgment pro Quer. Latch p. 186. Tindal's Case If one do covenant generally to levy a Fine of Lands he is not bound thereby to go before Commissioners by Dedimus Stiles Pract. Reg. 75. I am obliged that J. S. who is a Stranger shall levy a Fine to the Obligee the Obligee is bound to sue out a Writ of Covenant Aliter if I am obliged to you that J. S. shall levy a Fine to J. N. Winch p. 30. Hill and Waldron The Condition was the Obligor shall levy a Fine to the Obligee the Obligee ought to do the first Act viz. to sue a Writ of Covenant 5 Rep. Palmer's Case The Condition was J. S. shall levy a Fine to the Obligee before such a day The Defendant pleads the Obligee had not sued forth a Writ of Covenant The Plaintiff replies that before the Obligation made J. S. had made a Feoffment to J. D. of the Land and the Feoffee was in possession at that time Here the Obligee need not sue a Writ of Covenant for by the Feoffment J. S. had disabled himself at the time of the Obligation Sed Quaere Winch. p. 30. Eill and Waldron A Condition to levy a Fine at the Costs of the Obligor c. The Defendant pleads no Fine was levied by c. according to the Condition The Plaintiff demurs because it is not averred the Defendant brought any Writ of Covenant Sed non allocatur Per Cur. the Law is now changed and the Fine levied before any Writ entred and therefore must be done by the Plaintiff without any Writ 1 Keb. 816. Culpepper versus Austin A Condition that Baron and Feme being Lessees for Life should levy a Fine to a Stranger at the Costs of the Stranger and also that they should levy a Fine of other Lands to a Stranger at their Charge The Obligor saith the Baron and Feme did offer to levy the Fine if the Stranger would bear the Charges The Plaintiff demurs and pro Quer. because the levying the second Fine had not reference to the other for and also make them two distinct Sentences 1 Brownl 94. Hollingworth and Huntly A Condition that he and his Wife would levy a Fine upon reasonable Request of the Obligee he made the Request the Wife being very sick so as she could not travel Resolved her Sickness saved the Obligation from the Forfeiture More n. 256. A Condition that such a Woman should make such farther reasonable assurance to J. D. as J. D. should devise J. D. devised a Fine and required her to come before the Judge of Assize to acknowledg she came and the Judg refused her as non compos mentis Per Cur. the Condition was not broken because it is to make a reasonable assurance Aliter if the words had been special to acknowledge a Fine 1 Leon. p. 304. Pet and Cally. If a Man be bound to another to make such assurance of Lands as the Obligee shall devise it is not sufficient for him to devise a Fine and to take out a Dedimus c. upon it and require his Conisance in that for this is but a special way of taking the Conisance But if there were a Proviso that he should not go above five miles from his House then if his House be above five miles from Westminster he is bound to make his Conisance on the Dedimus this hath been the difference Allen p. 69. One covenants for farther assurance to levy a Fine of all his Lands in D. which was four Houses and tenders a Fine The Defendant pleads at the time of the Covenant he was only seised of two Houses and that the other two descended to him afterwards and good A Covenant to levy a Fine of two Acres and the Fine is of four Acres by the name of two Acres comprehended in the Indenture it is not good 1 Rolls Rep. 103 117. Wilson and Welsh 2 Bulstr p. 317. 1 Rolls Abr. 425. A Covenant to make farther Assurance and to do any Act or Acts c. and shews he demanded of him and tendred a Note of a Fine comprehending that he would levy a Fine of three Messuages c. and that he required him to acknowledg it before a Judge of Assize The Defendant pleads in the Note were more comprised than he intended to assure it is no Plea Cro. Jac. 251. Bonlay and Curtes If one be bound to levy a Fine to another he is not bound to sue forth the Writ of Covenant but he who is to have advantage of the Fine is to do it and in the Case aforesaid he ought to levy a Fine upon this Note notwithstanding there was no Writ of Covenant then hanging and in the said Case though the Note contained more Acres than the two yard-Yard-Lands this is good 1 Bulstr 90. Id. Case For performance of Covenants one was to marry S. the Daughter another that Sir E. S. and his Wife should levy a Fine of such Lands to the Defendant and to the Plaintiffs Daughter S. and to the Heirs of their Bodies 3. That the Inheritance of the Premises should remain in the said Sir E S. or himself until the Fine levied 4. Whereas he had granted a Lease for years to S. the Plaintiffs Daughter that he bad not made any former Grant nor
would afterwards make any Grant thereof without the Plaintiffs assent The Defendant quoad the last Covenant in the negative pleads that he had not made any former Grant of the Lease nor had made any Grant after the Obligation without the Plaintiffs assent Et quoad alias omnes Conventiones that he had performed them The Plaintiff demurs 1. Because the Covenant to levy a Fine c. is an Act to be performed by a Stranger and it is an Act to be performed on Record in both which Cases he ought to plead and shew how he performed it and it is not sufficient to plead general performance for Acts of Record ought to be shewn specially and the Answer to them is nul tiel record and no other Issue can be taken 2. Because the Covenant being in the disjunctive he ought to shew specially which of them and not generally 3. He pleads he did not grant without the Plaintiffs assent which is a negative pregnant and so not good and all allowed per Cur. and against the Plaintiff Crook Jac. 559. Lee and Luthiel On Covenant to pay Rent ON Condition performed pleaded the Plaintiff assigns the Breach for Non-payment of Rent and pleads in this manner that in December he demised to the Defendant one Wine-Cellar for one year and if the Defendant would hold the Wine-Cellar for three years paying 40 l. yearly during the said term and alledges Non-payment of the Rent for one Quarter of the first Year Per Cur. the Reservation had reference as well to the first year as to the two years following 1 Brownl 61. Young and Melton Debt on Bond to perform all Covenants Payments and Agreements contained in a pair of Indentures The Defendant pleads the Indenture and performance The Plaintiff assigns the Breach that the Defendant had not paid half a years Rent The Defendant replies the Plaintiff had entred into part of the Premises the day before the day of Payment and so at Issue Exception was taken because the Plaintiff had alledged no demand to be made and the Court held that was implyed by the Issue and that it was not necessary in this Case the Issue arising on a collateral point which admitted the Rent not paid 1 Brownl p. 76. Baker and Pain Hob. p. 8. Crook Eliz. p. 332. Dr. Aidir versus Wood. Debt on an Obligation to perform Covenants of a Lease The Defendant pleaded he had performed The Plaintiff assigns a Breach and the Defendant demurs Upon Demurrer the Case was A Lease was made for one year the Lessee covenants for him and his Assigns to pay the Rent so long as he and they shall have the possession of the thing let The Lessee assigns over his Term the Term expires and for Rent behind by the Assignee after the Expiration of the Term the Lessor brings the Action Per Cur. though here be not an Assignee strictly according to the Rules of Law yet he shall be accounted such an Assignee as is to perform the Covenants made between the Parties Stiles p. 407. Bromfield and Sir John Williamson Debt lies for a Rent reserved on a Lease for years without demand and if the Lessee be bound to pay the Rent at the day he ought to tender it at the day before demand otherwise it is where the Lessee is bound to perform Covenants 1 Rolls Rep. 216. Moses Den's Case If a Man be bound to pay Rent which is reserved upon a Lease made to him he ought to pay it at his peril but if it be to pay it according to the Lease there he said it is not payable but upon the Bond and if the Land be evicted in the interim before the day of Payment the Obligor shall help himself by pleading it upon such an Obligation But if the Condition is to perform Articles The Defendant cannot say there are no such Articles So bound to pay 10 l. per annum Rent reserved upon a Lease of Lands in D. the Defendant shall not plead the Plaintiff had not any Estate in the Lands Quaere de hoc Popham 114. Stroud and Willis The Condition was if the Obligor shall pay the Rent of c. according to the intent of certain Articles c. that then c. The Defendant pleads the Articles did contain that the Obligor demisit c. to the Defendant omnia talia domus c. in Y. in quibus the Obligee had an Estate pur vie per Copy habend pur 21 aâ—s rendant rent Per Cur. no Rent is to be paid for the Lease did never begin But per Popham the Obligor is to pay the Rent though nothing be demised to him for by the Bond he hath made it a Sum in gross Fenner contra More n. 521. Stroud and Willis A Condition to perform Covenants in a Lease The Lessee doth not pay the Rent at the day and the Plaintiff without making any Request sues the Bond upon this matter pleaded in Bar the Plaintiff replied that he was not demanded Demurrer If the Bond be for Rent precisely there the Lessee ought to seek the Lessor and tender on the Land will not excuse him but an Obligation to perform Covenants doth not alter the nature of the Rent 2 Brownl Rep. 176. Manly and Jennings Quaere in Hobart p. 8. Baker and Pain Debt on Bond the Condition to perform Covenants Performance pleaded Non-payment of Rent assigned in the Replication The Defendant rejoyns the Plaintiff entred before the Rent-day Per Cur. it is a departure 1 Keb. 115 178 185. Granger versus Lemborough This point in Hobart p. 8. Baker and Pain 's Case was not stirred there The Condition was to pay quarterly an Annuity so long as the Defendant continues the occupation of the Land Defendant pleads payment till the 24th of June before which day the Plaintiff entred and brought Ejectment in Trin. and had Judgment in Michalmas Term. The Plaintiff demurred because he saith not expulit or amovit nor that the Plaintiff continued in possession as it ought to be being pleaded by way of Suspension but by way of Eviction it were well enough which the Court agreed in case it were payable as a Rent But per Cur. the Entry shall be intended continuing and there shall be no apportionment on a Bond as it might upon a Lease 3 Keb. 453 515. Arnold and Foot The Plaintiff assigns a Breach for Non-payment of Rent but shews no demand at the day The Defendant demurs and adjudged for the Plaintiff For when the Defendant pleads performance of all the Payments Covenants and Agreements it shall be intended he had really performed them and so had paid all the Rents and when the Plaintiff replies he had not paid such a Rerit he need not alledge a demand for the Defendant may not say it was not demanded for that would be a departure yet the Obligation being general for performance of Covenants doth not alter the nature of the Rent but that it ought to be demanded Crook
Car. 76. Chapman and Chapman But because the Defendant pleaded generally quod perimplevit omnes conventiones c. which implies a Payment of the Rent and the Plaintiff assigns for Breach that it was in arrear such a day The Defendant demurs and so confesseth it was not paid The Plea was ill though in such Case the Obligation is not really forfeited unless there be a demand of the Rent Crook Eliz. p. 828. Specot and Sheeres A Condition to perform Covenants in an Indenture whereby he lets Land rendant 10 l. per annum or within six days after the Feast The Defendant pleads performance The Plaintiff assigns a Breach that he such a day being the sixth day after the Feast before Sun-set demanded 3 l. Rent then due and that neither the Defendant nor any for him was ready to pay it for which c. Per Cur. 1. He need not shew the certain time when he came nor how long he remained there 2. Whereas it was objected this demand was not good because he demanded it as a Rent then due for he ought to have demanded it as a Rent due the last Feast But per Cur. it is not due to be demanded till the sixth day though the Tenant if he will may pay it before 3. The Condition being for performance of Covenants Payments and Agreements the Non-payment of Rent upon demand on the last day was a Breach of the Bond Crook Jac. 499. Thompson and Field Debt on an Obligation conditioned to perform Covenants and to pay Rent The Defendant on Oyer pleads performance to which the Plaintiff demurs as being no special Answer to the Rent which per Cur. is ill Judgment pro Quer. 3 Keb. 60. Betent and Frim Per Hales If the Lessee covenants to perform Articles in an Indenture it is sufficient to say the Rent was demanded but if there be an express Covenant to pay the Rent there needs no demand 3 Keb. 299. in Drew and Baylies Case A Condition to perform Covenants in a Lease The Defendant pleads Conditions performed The Plaintiff assigns a Breach for Non-payment of Rent The Defendant pleads to this a Release of all Demands Per Cur. this Rent is not released by all Demands Siderfin p. 141. Hen and Hanson In Debt on a Bond the Condition to perform Covenants of payment of Rent and another particular The Defendant pleads Covenants performed generally Plaintiff demurs because he should have pleaded to each particular performance or other particular Plea and so whereever particulars are specified but when it is to perform Covenants in an Indenture performance according to the Indenture is sufficient 2 Keb. 362. Brown and Talderly On performance pleaded the party cannot after plead Rent was not demanded Aliter on a particular Covenant to pay Rent for perimplevit implies actual performance not by way of excuse 2 Keb. 848. Forth and Lewin The Lessee covenants to pay his Rent to the Lessor and he pays it before the day the same is not any performance of the Covenant Aliter of a Sum in gross 1 Leon. p. 136. in Littleton and Pernes Case The Condition was that the Defendant should pay to the Plaintiff 10 l. which is for Rent of certain Lands The Defendant alledged the Plaintiff had entred upon the Land and so a suspension The Plaintiff demurred and adjudged for him for this being but a recital that it was for Rent is not material it seems the same though he had applied it by pleading to the Lease Heb. p. 130. St. John and Diggs On Covenants in a void Lease THE Covenants depend upon the Lease and the Bond upon the Covenants If a Lease be made and after surrendred all the Covenants and Bonds for the performance of them are void also in Sapeans and Skurro's Case Yelv. p. 19. Quaere A Grant or Assignment of so much of a Term as shall be unexpired at his death and a Covenant that the Grantee shall quietly enjoy the Grantor dies in Bond for performance the Action of Debt is brought against the Executor though the Assignment be void but this is a Covenant by it self and the Breach was that the Executor entred on the Grantee Per Windham the difference is where a Deed is void in the Fabrick there the Covenants on it are void as when a Freehold is to commence in future and where there is only want of Interest in the party Grantor which the Court agreed 2. The Condition was to keep and perform all Covenants generally which being void the Bond is single if there had been no Indenture the Bond had been good single 1 Keb. 130. Cavenhursts Case A Parson made a Lease for years and became bound to the Lesse to perform the Covenants in the Lease The Defendant pleads the Lease is void by the Statute of 14 Eliz. because he was absent from his benefice above the space of 80 days Per Cur. the Plea is good as to that Point 3 Leon. p. 102. Cox's Case One that is mere Laicus being instituted and inducted made a Lease for years of the Rectory which was confirmed by the Patron and Ordinary In Debt for performance of Covenants Per Cur. this Lease shall bind the Successor Incumbent Crook Eliz. Costard and Windet To perform Covenants in a Lease against Stat. 32 H. 8. Leases made to Alien Artificers void Siderfin p. 357. Freeman and King 1 Sanders Javans and Harweck Siderfin p. 309. An Obligation to perform Covenants of an Obligation void by the Statute of 14 El. c. 11. 1 Lâ— p. 100. St. John and Petits Case If the Indenture of Covenants be made void as by Release c. the Bond is void 2 Keble 116. On Covenants in a Mortgage A Grant Bargain and Sale of certain Lands with a Proviso that if the Defendant did not pay 40 l. such a day then it should be void The Condition was to perform all Covenants Clauses Payments and Agreements contained in the Deed This doth not extend but to compulsory Payments and not to the voluntary Sum in the Proviso for if he choose not to pay he may forfeit the Land to the Plaintiff Yelv. p. 206. Bristow versus Knipe 1 Bulstr 156. Id. Cro. Jac. 281. Id. Case Debt on an Obligation to perform all Conditions Covenants Payments in the Indenture The Defendant pleads one Condition was of a Lease to pay on a Mortgage or to be void and that he was not bound to perform it The Plaintiff demurs Vid. 3 Keb. p. 387. adjudged for the Defendant because the Land was to be lost for Non-payment 394. Per Hales the word Conditions would be idle if this were not effectual aliter if the word Conditions was not in and then it would be at the Mortgagors Election to pay or forfeit But here perhaps the Lessor had no Title and so it is requisite the Mortgagee should have his Mony 437. Per Cur. were it a Condition in the Indenture specially recited in the Bond though thereby the Mortgage was
this Verdict is found against the Defendant the Plaintiff is not estopt to say that the Deed shewn is not the Deed of the Baron and Feme but he is estopt by the Condition to say that there is not any such indenture Cro. Eliz. p. 796. Ship and Steed Release Pleaded If before the breach of any of the Covenants the Obligee releaseth the Covenants and afterwards one of the Covenants is broken the Obligation is not forfeited for there is not now any Covenant which may be broken and so the Obligation is discharged but if the Release had been made after the Covenant broken aliter 3 Leon. 69. What is confessed by pleading Conditions performed Obligation to perform Covenants the Covenant was If the Plaintiff pay the Defendant 100 l. at Michaelmas that the Defendant would pay him yearly after 10 l. for his life and averred he did not pay him 10 l. yearly but did not mention the payment of 100 l. by him which was assigned for Error Per Cur. it s no Error because the Defendant by pleading Conditions performed had confessed the payment of the 100 l. to him by the Plaintiff Moor n. 474. Goodwin and Isham If the substance be answered though not the very words its good as the Condition was if he perform all the Covenants Conditions Agreements and Articles and when the Defendent cited them in his Plea which are all the Covenants Conditions Agreements and leaves out Articles and so hath not pleaded performance of the Condition but per Cur. Agreements is all one with Articles and if many words contain one thing in signification if he answer to them in substance its good and the Condition was If the Defendant and T. and their Assigns perform c. and he pleads he and T. had performed but saith not he and T. and their Assignes had performed c. and it may be they had assigned it over but per Cur. it appeareth not there is any Assignee and it shall not be intended except it be specially shewn and a Bar it good to common intent Cro. Eliz. p. 255. Eniot and Cole Where an Act is to be done according to a Covenant he who pleads the performance of it ought to plead it specilly but where no Act is to be done but only a permittance permifit is a good Plea one Covenant was That the Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have free ingress c. at his pleasure the Defendant pleads quod permifit D. querentem habero intrationem exitum c. in tales tâ—rtâ— quales tunc jacobant frisca secundum conâ—uetudinem pâ—triae he need not shew in certain what Lands did lie fresh and it shall come on the Plaintiffs part to shew in what Lands the Defendant non permifit 1 Leon. p. 136. Littleton and Perne The Defendant is not bound to plead performance of any more than his own Grants and Covenants vid. Dyer 26 H â— 27 b. One Covenants with J. S. that he shall enjoy the Land and farther that A. a Farmer of the Tithes shall pay 8 l. per annum and is bound to performance in Debt on Bond its good to plead performance of the Covenants ex parte sua perimplend for this implies the Farmer had paid the 8 l. and express mention of that needs not be Dyer 23 El. 372 373. In Debt for non-performance of Covenants the Plaintiff ought to shew how the Covenants are broken and if it be in non-payment of Rent he ought to shew in certain what day the Rent was arrear 9 H. 6.18 Debt to perform Covenants one was to many the Plaintiffs Daughter before such a day 2. That Sir E. S. and his Wife should levy a Fine of such Lands c. 3. Whereas he granted a Lease of c. to S. that he had not made any former Grant nor would afterwards make any Grant thereof without the Plaintiffs assent the Defendant quoad the last Covenant in the negative pleaded that he had not made any former Grant of the Lease nor had made any Grant after the Obligation without the Plaintiffs assent Et quoad omnes alias conventiones that he had performed them the Plaintiff demurs 1. Because the Covenant to levy a Fine is an Act to be performed by a Stranger and to be performed on Record and it s not sufficient to plead general performance 2. Because the Covenant being in the disjunctive he ought to shew specially which of them and not generally 3. He pleaded he did not grant without the Plaintiffs assent which is negativa prognans Per Cur. for these Causes the Plea not good Cro. Jac. 560. Lee and Luithil Issue Trial. COvenants in a Lease of an House the Defendant pleads he was an Alien born at Paris in France and an Artificer and so by 32 H. 8.16 the Lease void the Plaintiff replies The Defendant was not an Alien and Artificer the Defendant demurs Per Cur. Alien and Artificer are but the same Person and but one Breach 2. This Issue cannot be tried because the Replication should have been that he was a Denizen born at Islington in England and that he is no Alien generally 2 Keble 315. Freeman and King 98. On performance generally pleaded the Plaintiff may reply with particular Breach hoc paratus c. and leave the Issue to the Defendant contra on Condition to pay Mony at several days the Defendant pleads particular payment the Plaintiff replies he did not pay such a day certain hoc paratus c. it s ill 1 Keble 759. Charleton and Fine The Defendant pleads Covenants performed the Plaintiff assigns a Breach in not delivering up an House the Defendant rejoins before the end of the Term the Plaintiff gave him leave to continue it longer Per Cur. it s a departure the parol Agreement was pleaded in Bar 1 Keb. 678. Brooks and Lake The Defendant pleads the Obligation was for performance of Covenants and shews what and alledgeth farther that in the said Indenture is a Proviso si aliqua lis vel controversia oriatur imposterum by reason of any clause that then before any Suit thereon the Parties should choose four indifferent Persons for the ending thereof which being done the Obligation to be void and in facto saith that Controversy did arise the Plaintiff demurs per Cur. because the Defendant hath not shewed what strife and what clause the Bar is not good for it extends not to every Covenant only where strife ariseth 1 Leon. 37. Parmort and Griffin A Condition for performance and sets forth the Covenant and shewed farther that the Plaintiff after sealing procured J. S. to rase the Indenture and shews wherein and so the Indenture became void Per Cur. it s against the Defendant the Rasure not being in a place material an the Rasure trencheth to the advantage of himself who pleads it and if the Indenture had become void by the Rasure the Bond
had been single 1 Leon. p. 282. The Lord Darcy and Sharps Case A Condition to perform Covenants one was To give an account just and true being a Brewers Clark the Defendant pleads performance the Plaintiff replies by receipt of 30 l. The Defendant rejoins that it was stollen out of the Plaintiffs Counting-house the Plaintiff demurred the Robbery is a good â—ar but the Plaintiff per Cur. discontinued because a Rule for Trial of the Robbery was disobeyed 2 Keble 761 779 830. Vere and Smith A Condition to perform Covenants one was not to take a new Lease without assent of the Plaintiff the Defendant pleads he took no new Lease contra fâ— Indentur The Plaintiff replies he did take a new Lease but saith not without assent of the Plaintiff the Defendant demurs per Cur. the Replication is good for the Plaintiff is misled by the Defendant and the Issue is good enough 3 Keble 524. Perry and Wâ—itby A Condition to perform things for which he was bound in a Recognizance the Defendant pleads specially that he acknowledged a thing in nature of a Recognizance but upon special matter it appeared to the Court it was not any Recogniâ—ance male for it amounts to the general Issue 1 Rolls Rep. 83. Fletcher and Farrer A Condition to pay unto the Plaintiff all such Legacies which he had given to him when he should come of his full Age c. The Defendant pleads he paid omnia talia Legata qualia ad tale tempus generally without shewing the particulars and time when and so the Plea not good 1 Bulst p. 43. Stone and Bliss To do or permit other Acts to save harmless A Condition for saving the Plaintiff harmless from all Legacies and shews for Breach there was a Suit commenced against him in Chancery for a Legacy Per Cur. this Declaration is not good because he doth not shew such a Legacy was devised or that he was chargable with it 2. Because he doth not shew any place where Chancery was in all Cases where a Man pleads any thing out of Chancery or any thing to be done in Chancery he ought in pleading to shew the same certainly and to say in Caâ— apud Westen otherwise upon Issue no Venue can arise 2. Bulâ— 19. Dowty and Fawn Yelv. 226. id Caâ— â— Brownl 117. id Case vid. 1 Rolls Abr. 430. A Condition if he save harmless and indempnifie the Plaintiff and his Lands in Sale from an annual Rent of such a Lease during the said Term the Defendant pleads quod a tempore confection script obligation hucusque exoneravit indempnem conservavit the Plaintiff and all his said Lands from the said Rent Et hoc c. Plaintiff demurs he ought to shew quomodo exoneravit it being a Plea in the affirmative had he pleaded non dampnificavit it had been good Cro. Jac. 634. Horseman and Obbins Winch. To save harmless from Incumbrances vide antea A Condition to save harmless from such a Bayl in such an Action the Defendant pleads quod libere absolute exoneravit c. and shews not how he had discharged him and therefore ill aliter if he had pleaded non dampnificatus Cro. Jac. p. 363. Codner and Dalby 2 Bulst 270. A Condition to save the Plaintiff harmless against J. Roberts of one Obligation the Defendant pleads non dampnificatus the Plaintiff replies that J. R. had sued him to the Exigent and then he appeared and R. had Judgment against him issint dampnificat the Defendant rejoins that he had retained Attorn pro Plaintiff and the Plaintiff was at no Expences nor was arrested nor Lands or Goods seised and that after Judgment he was not dampnified the Plaintiff demurs Cur. pro Quer. for immediately upon the Judgment given he was dampnified for all are liable to execution and if the Defendant after Judgment had paid the Debt it would not serve for he was dampnified before Cro. El. p. 264. Bush and Ridgely Act. port by High-Sheriff versus Under-Sheriff The Defendant pleaded he saved him harmless the Plaintiff demurs male Pleâ— for he may save him harmless in many things and yet the Plaintiff may be dampnified in some other he ought to have pleaded non dampnificatus Stiles p. 23. Car. 1. fol. 16. Wroth and Elsey that he saved harmless and shews not how Cro. Jac. 165. Alingtons Case The Defendant pleads non dampnificatus the Plaintiff replies and shews a Breach on the Defendants part wherein he was dampnified the Defendant demurs because the Breach was assigned to be at Westminster and doth not shew in what County Westminster is and good Stilâ— p. 142. M. 24 Car. B. R. Nelson versus Tompson A Bailiff conditions to save the Under-Sheriff harmless in executing Process c. and assigns a Breach that the Bailiff had not executed his Warrant upon Process directed out of the Exchequer to levy Issues on Lands in the Mannor of A. but he doth alledge that the Mannor is within the Hundred where he is Bailiff quod aportuit and a good exception for a Bailiff cannot execute a Precept out of his Hundred Stilâ—s p. 18. Pasch 13. Car. 2. Stoughton and Day Allen p. 10. id Case The Condition of a Bond to save the Obligee harmless concerning his buying of certain Goods at such a price extends not to the Price but to the Title Allen p. 95. A Condition to save the Plaintiff and Inhabitants of N. harmless from all Charges that may happen by placing A. in a Cottage the Defendant pleads non dampnificatus the Plaintiff replies they were forced to provide Necessaries by reason of a Rate set on the Inhabitants by Justices and Overseers good without shewing any particular Inhabitant was charged the possibility that they may be charged by the Rule is a sufficient dampnification 1 Keble 392. Tavernor and Quatorman A Condition to save harmless from all Damage that may happen by non-payment of Legends being Executor of J. S. the Plaintiff alledgeth damage in Suit by Legatee in Chancery the Defendant demurs Judgment pro Quer. 1 Keb. Hill 14 15 Car. 2. p. 464. Gibs and Tailor A Condition to save harmless of being Bail for an appearance the Defendant pleads non damnificat on Oyer the Plaintiff replies the Defendant did not appear per quod the Sheriff did prosecute him per dubitum logis cursum here being a Suit alledged is a sufficient Breach per Twisden Q. 2 Keble fol. 625. Pas 22 Car. 2. Baker and Porter A Condition was to save the Plaintiff harmless from all Actions and Damages that might arise upon the release of the Defendant out of Execution being then in execution at the Plaintiffs Suit from all Persons that might trouble him concerning the said Release the Case was The Plaintiff sued N. in the Court at Y. for 100 l. the Defendant and one H. became Bail the Plaintiff had Judgment against N. and also the Bail the Defendant was thereupon taken in Execution but before the Defendant was
had satisfied so much or that was not molested Crook Eliz. p. 393. Hutchinson and Leâ—son The Condition is if R. C. acquit R. F. and J. B. of such Sureties they have made to N. that then c. pleaded that R. F. and J. B. were bound to N. in 15 l. and R. C. did procure Acquittances of N. to R. F. and J. B. for the same See the form of pleading Quaere if good Plea 1 H. 7.30 a. The Condition was to secure him harmless against J. S. in an Action for 53 l. for which he was Bail for him The Defendant pleads he had paid to J. S. 20 l. in satisfaction of the 53 l. and so kept him harmless but for that the Plaintiff might be damnified before the payment to which he doth not answer the Plea is ill Crook Eliz. p. 136. Davies and Thomas In Debt on a Counter-bond for Security of Bail given for appearance of the Defendant The Defendant pleads non damnificatus The Plaintiff replied Non comparuit The Defendant rejoyns that the first Bond given was void per 23 H. 6. and that there was no Latitat issued forth per Cur. this is a departure But notwithstanding the Bond the party is not estopt to say there was no Latitat but the Non-appearance is a damnification be the Bond void or not 1 Keb. 59 98. Cook and Morgan Condition to permit WHere no Act is to be done but only a Permittance he need not plead it specially and non permifit or permisit is a good Plea A Covenant that the Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have free ingress c. The Defendant pleads quod perâ—nisit Querentem intrare c. in tales terras quales tunc jacebant frisco secundum consuetud patriae he need not shew what Lands did he fresh 1 Leon. p. 136. Littleton and Perne L. covenants with S. that he would suffer him and his Assigns to have free ingress c. into his House and Shop without let or interruption of the said L. and that S. appunctuavit one T. ut servientem suum in Messuag c. intrare in usum de S. super quo praedict T. intravit praedictas L. expulit Moved in Arrest 1. It is alledged L. expels the Servant and this was the expulsion of the Master 2. Appunctuavit intrare and doth not say what time for perhaps his Licence to enter might be determined 3. It is not said at what time he entred but super quo intravit all these Exceptions were over-ruled 2 Rolls Rep. 78. Snelling and Lowe The Condition was if A. a Stranger would render himself to an Arrest in such a place The Defendant pleads A. was a Servant to a Parliament-Man and pleads Priviledge The Plaintiff demurs Pro Quer. for A. might render himself and let it be at their peril if they will arrest him 1 Brownl Rep. 91. Jackson and Kirton A Condition to perform all Covenants in a Lease made by her Husband of a Warren one whereof was to do no Act to disturb the Lessee she after marries another Husband who entred on the Plaintiff and cut his Nets no Title being shewed by which he entred The Plaintiff demurred and Judgment pro Quer. It is not requisite that the Husband be Assignce of the Estate but her Assignce of Contract which she might have avoided the Husband acts in her Right 1 Keb. 348 512. Hall versus Creswel Uxor One is bound to permit his Tenants to use the Common and that he shall not alter the Course of the Common quod permisit and that he shall not alter c. is a good Plea generally 11 Eliz. Dyer 279. Condition to surrender Copyhold Lands THE Condition was that the Obligor should surrender his Copyhold Land to the use of the Obligee he pleaded he had surrendred it ill Plea because he had not shewed when the Court of the Lord was holden Winch p. 11. Llewellins Case The Condition reciting whereas such Copyhold Lands were to be surrendred by A. S. at her full age to the use of the said Hammond and Guy and their Heirs and that Gay should pay to Hammond 33 l. at such a day and if he failed it should be to the use of Hammond and his Heirs It was conditioned that if the Obligor procured the said A. S. at her full age to surrender to the use of Hammond and his Heirs and if Hammond and his Heirs might have and enjoy the said Lands to him and his Heirs then the Obligation c. The Defendant pleads Gay paid not the 33 l. and that A. S. came of full age such a day and afterwards at such a Court in full Court did surrender release and quit claim to the Plaintiff being in possession all her Estate Right and Interest in the same Tenements and that the Plaintiff always after might have enjoyed the same Tenements The Plaintiff replies quod bene verans est that the said A. S. did surrender prout c. but that afterwards such a day the said Gay entred and expelled him The Defendant demurs per Cur. the Replication is not good because he hath not shewed he was evicted by lawful Title for otherwise this Bond doth not extend to it and per Cur. the Bar that shall be surrendred and released in Court is good and certain enough according to common intendment And although it be not said she surrendred to the use of the Plaintiff yet it being alledged it was surrendred in Court and accepted by the Plaintiff and confessed by the Replication it is good Crook Car. first Case Hammond and Dod. The Condition whereas F. held Copyhold Land of Sir J. K. if he within six Months after the death of F. granted the Land to the Plaintiff and two others whom the Plaintiff should name for three Lives according to the Custom of the Mannor that then c. The Defendant pleaded the Plaintiff nominated no Lives The Plaintiff replies Sir J. K. within the sixth Months granted it to J. S. and two others for their Lives who are yet alive the Defendant pleads non conâ—ossit and found against him It is not Error that the Plaintiff in his Replication shows not that the lands are Copyhold for the Condition reciting it is Copyhold Land he is estopt Crook Jaâ— p. 275. Sir J. Kernes Case To satisfie Imbeziled Goods ONe was bound to satisfie for Goods he had imbeziled he pleads that upon suit for those Goods he was taken in Execution for the damage No Plea 33 H. b 47. Hillaries Case Hob. p. 59. The Condition if A. turned over Apprentice should waste the Goods of his Master to pay what the Master was damnified no damage pleaded Plaintiff sets forth goods wasted but it s forth no notice given to the Defendant no notice is necessary when any one undertakes for a third person he must answer for him at his peril because the imdesilment is
not in the Conisance of the Plaintiff and the particulars of the Goods wasted need not be set forth 1 Keb. 467.471 French and Beirce To enjoy Office A Condition Whereas the Plaintiff and Defendant be now jointly seised of the Office of the Registry of the Court of Admiralty if the Defendant shall permit the Plaintiff to use the said Office and take the profits of it to his own use during his Life without let or interruption done by him then c. the Defendant pleads That the Custom of the Realm of England is that the Lord Admiral might grant the said Office during his own Life and the Lord Clynton did grant it to the Plaintiff and Defendant and dyed and the Lord Howard granted to Wade who ousted him before which time the Defendant suffered the Plaintiff to enjoy the said Office and to take the Profits the Plaintiff demurs male plea for if it be the custom of England then its common Law and this cannot be tryed for no Venue can be from the Realm of England also he doth not answer to any time after the grant of Admiral Howard for though Wade might lawfully put him out yet the Defendant could not 2 Leon. 114. Parker and Harrold Condition if the Plaintiff had possessed and enjoyed the Office of Ecadleship c. that then c. Defendant pleads quod habuit gavisus fuit occupâ—vit c. Jury find the Plaintiff did exercise and occupy that Office but whether that shall be said having and enjoying they doubted Per Cur. diversity between an Office in verity and an Office in reputation for of Office in reputation there can be no other possession but by occupation for it is no Office in Interest as Office of Marshal of Justice of Assize Cro. Eliz. p. 382. Dudly and Kingâ—n To procure an Office Place Benefice THe Condition was if S. procure a Grant of the next Avoydance of the Arch-Deaconry of Staff to be made to the said Bingham so that the said Bingham to such next Avoydance may present that then c. the Case was by the means of S. the Grant of the said next Avoydance was made to Bingham but before the next Avoydance the present Arch-Deacon was made Bishop so as the Presentment to the nâ—t Avoydance appertained to the â—en Per Cur. the Condition was not performed and that by reason of these words so that Bingham may presented 3 Lâ—on 151. Bingham and Squire Condition if the Defendant do not lawfully procure Market to be granted within six Months of a return of an ad quod damnum to be sued out for that purpose that them if the Obligor pay 20 l. to the Obligee then c. it was returned to be ad damnum and so no Market procured Obligee shall recover the 20 l. Rationem vide 2. Rolls Rep. 467. J … and March Conditions concerning Writings to procure to deliver to execute to make IF a Man bind himself to procure a Stranger to make a Release of all his Right and Title to Land the Obligor must procure him to make such a Release de facto though he had no right 1 Sâ—â—ders 216. Doughty and Neal. Vide there the Form of the Condition and the Pleadings A Condition if J. S. make Obligation to the Plaintiff before Michaelmas that then c. the Defendant pleads J. S. made the Obligation and sealed it and delivered it to another as his Deed to the Use of the Plaintiff Per Cur. it s no performance for perhaps the other will not deliver it to the Plaintiff Cro. Eliz. p. 143. Bease and Draycot Condition to pay 100 l. to the Plaintiff when he shall take a sufficient discharge from A. and B. for the payment of Legacies an Acquittance from one by the others consent is no sufficient discharge 1 Keb. 739. Forquer and Fraâ— Condition that the Daughters when they come to full Age shall give Releases it shall be taken diâ— 2 Keb. 591. â—osviles Case Condition to give such a Release and Discharge from and against him and his Heirs for receipt of a hundred Marks as by the Judge of the Prerogative Court of Canterbury shall be thought meet the Defendant pleads the Judge did not appoint any release or discharge c. no Plea for it should be alledged he caused a Release to be drawn and tendered to the Judge to be allowed of for it is on his part in discharge of his Obligation to draw such a Release as the Judge shall allow Cro. Eliz. p. 716. Lamb and Brownwent 5 Rep. 23. b. The Judge is a stranger to the Condition and he hath taken it upon him to do it at his peril he ought to procure the Judge to direct it Lambs Case A Condition if Obligor deliver to the Plaintiff an Obligation in which he was bound to the Defendant before such a day that then c. the Defendant sueth the Plaintiff upon the Obligation and recovereth and afterwards and before the day he delivers it to him this is no performance though the words were performed yet the intent was not for the intent was he should have the Obligation for his discharge which is not by the delivery for tranfit in rem judicatam and he may have the benefit of the judgment Cro. Elz. p. 7. Teales Case If a man not Lettered be bound to make a Deed he is not bound to seal and deliver any Writing which shall be tendred to him unless there be some body present that may read this to him or expound it if he request it 2 Rep. 3. Mansers Case The Condition was to seal and execute a Release to the Plaintiff The Defendant demurs because the Plaintiff in his Declaration did not alledge a Tender the Condition not being to make but to seal and execute Per Cur. he is bound to do it without a tender Mod. Rep. 104. Baker and Bulstrode Condition was That the Obligor shall deliver all Writings concerning such Land it s a good Plea to say generally that he had delivered all the Writings 28 H. 8. Dyer 28. 4 H. 7.12 Condition to enfeoff the Obligor of certain Lands at such a day and place Pleaded that the Defendant was present there all the day to enfeoff the Plaintiff and that the Plaintiff came not there to accept of this Plaintiff replies he was there present all the day to accept the enfeoffment without that that the Defendant was there it s a good Replication Doct. pl. 323. 22. Ed. 4.43 Condition to deliver Possession COndition if R. H. upon request by the Plaintiff his Heirs or Assigns should deliver the Possession of such a Farm to the Plaintiff his Heirs or Assigns c. The Plaintiff assigns the Reversion by Deed to Richard and Henry P. in Fee At the day H. P. alone came and demanded the Possession without notice given of â—s coming c. Per Cur. 1 The deâ— of H. P. is the demand of both and the delivery of the Possession to one
had been delivery to both 2 The two Bargaâ—es need not give notice to the Defendant that they had the Reversion by Bargain and Sale for being the condition of a Bond it is at his Peril to take notice being obliged to deliver it to him or his Assigns Cro. Jac. p. 475. Hingen and Pain Bridgman Rep. 128. The Condition was that the Defendant should not deliver Possession to any but the Lessor or such persons as should lawfully recover The Defendant pleads he did not deliver but to such persons as lawfully recovered it Good Plea he need not shew he delivered to J. S. by lawful Title 1 Keb. 380 413. Nicholas and Pullen Conditions concerning Wives COndition not to sell the Apparel of his Wife it s a good condition If a man bind himself to a stranger to pay 20 l. per Annum to his Wife this is good 1 Rol. Rep. 334. Smith and Watson The Condition was to permit his Wife to make a Will and dispose such Legacies the Defendant pleads she made no Will it was found she made a Will but that she was Covert c. Per Cur. This is a good Will within the intent of the Condition and it is but her appointment which the Husband by his Obligation is bound to perform Cro. Car. 219. Marriot and Kinâ—an The Condition was to permit his Wife to make a Will and to dispose of one hundred pounds of her Husbands Goods 〈◊〉 paid within one year after her decease The Defendant pleads â—e permitted his Wife to make a Will the Plaintiff demurs Per Cur. he ought to have pleaded that he had paid accordingly otherwise he doth but answer to one part of the Condition Cro. Car. 597. Sherman and Lally The Condition was if he should survive A. S. his Wife that if within three Months after her decease there were paid to the Obligee 300 l. to and for such uses and purposes as the said A. S. by any Writing under her Hand and Seal subscribed c. should nominate and appoint that then c. The Defendant pleads she did not limit c. any use for the imployment of that mony The Plaintiff replies she by her Will in Writing c. did appoint such Sums to be paid The Defendant demurs because she ought to have made a Deed in Writing and not a Will But Per Cur. this Declaration was good and though the pleading was that A. S. Voluit devisavit and not that it was appointed by her yet Per Cur. well enough for it is not properly a Will that is made by a feme Covert but a Writing in nature of a Will Cro. Car. 376. Tille and Petre. Authority was given to the Wife to â—lso 300 l. and she disposeth 200 l. by fifties and well Condition to make a Will in the presence of her Husband or if he refuses it such person as her Husband should appoint Qu. If refusal ought to be alledged or notice to the Husband 1 Keb. 347. Harris versus Beffie To procure a Marriage between the Plaintiff and B. P. such a day or before The Defendant pleads the Plaintiff before that day called B. P. Whore and used other base Language by reason whereof the Defendant could not procure the Marriage no Plea for he hath not shewed his endeavour to procure the said Marriage and notwithstanding such words they might have inter-married Cro. El. p. 694. Blandford and Andrews A Condition to pay such a Sum as E. B. should appoint after Marriage with the Defendant by her last Will or other Writing signed in tiel form the Defendant saith she made no Will nor any other Writing c. the Plaintiff sets an appointment in Writing forth the Defendant saith it was after revoked this is no departure because its a fortification of the Bar and could not be foreseen and its revocable contrary to Hobert Ormonds Case 1 Keble p. 821. Shepard and Spencer A Condition not to meddle with the Goods of the Feme which were her first Husbands but that she and her Children might enjoy them sans disturbance claim or interruption of the Defendant Breach assigned that the Defendant took and detained the Goods of the first Husband and Issue pro Quer. and the Breach well assigned Cro. Car. p. 204. Crawle and Dawson A Condition to pay so much yearly to his Wife it good as well as to give her a Gown 27 H. 8.27 Condition to accept a Lease A Condition If the Obligor accepted a Lease by Indenture of such Lands upon the Plaintiffs request and sealed a Counter-part thereof then c. The Defendant pleads the Plaintiff did not request him to accept a Lease the Plaintiff replies he had caused an Indenture to be drawn and ingrost according to the said Condition and a Label affixed cum sera appensa and required and offered it to the Defendant to accept thereof and he refused Issue upon the request found pro Quer. Error 1. Sera is not Wax sed non allocatur 2. Because he avers not the Lands mentioned in the Indenture are the same in the Condition but because he pleads non requisivit and he replied it was secundum formam Conditionis it shall be intended the same Lands and if they were other Lands the Defendant ought to shew it Cro. Car. 560. Lee versus Russel Condition to appear at a Place THE Condition was That S. and his Wife should appear at the Marshals Court S. appears and pleads that at the time of the Obligation he was solus innuptus Judgment pro Quer. sur demurer Stiles p. 17. Pain and Skelton To appear within eight days after warning warning ought to be shewn to be given of the Action brought Cro. Jac. 46. Yelv. p. 52. Hargrave and Rogers In Debt on an Obligation to appear at a certain day Imprisonment is no Plea 2 Rolls Rep. 136. Anonymus In a Recognizance to appear c. Imprisonment by Commissioners of the Adâ—ralty is an excuse Moor n. 251. Lacies Case A Condition to come to the Kings Head c. on the 12th of October and there elect two Arbitrators who with two others to be elected by the Plaintiff should arbitrate of all Sums c. the Defendant pleads on the 12th of October he came to the Kings Head c. and there elected two Arbitrators but the Plaintiff was not there Plea not good because he shewed not at what hour of the day he came nor how long time he continued there for he ought to be there so long time before the last instant as the Arbitrament may be made neither doth he shew that his two Arbitrators were there present Cro. Eliz. 549. Edmonds versus Marks The Under-Sheriff took a Man by Attachment out of Chancery who took Bond of him to appear at the day contained in the Attachment Per Cur. the Bond is void for that the Defendant was not bailable upon the Attachment 3 Leon. 208. Bland and Riccards Debt upon an Obligation taken in the Kings Name in
the Court of Requests with a Condition to appear before the Master c. the declaration is general that the Defendant such a year and day by his Obligation did acknowledge himself to be bound to the King in 60 l. to be paid c. and naught because it did not appear to be taken in a Court of Record 1 Brownl p. 68. Rex versus Castle Not to alien A Condition to perform Covenants one was That the Lessee his Executors or Assigns nor any other who shall come to have the Estate or Interest in the Term shall not alien their Estate sans licence of the Lessor but only to his Wife or Children the Lessee deviseth it to his Wife she alieus the Covenant is broken it extends to the Lessee and his Assigns and she is Assignee express so although there was once an Alienation by Licence yet that Assignee cannot alien sans Licence Where a Condition is in a Lease that neither he nor his Assigns should alien without Licence the Lessee died Intestate the Administrator was bound by this Condition Cro. El. 757. Thornil and Adams versus King sa Feme A Condition not to alien without the consent of the Lessor the Lessee makes his Executor and deviseth this to him the Executor enters generally the Testator not being indebted to any this is a Forfeiture 1. Rolls Abr. 429. Dampâ— and Symons Not to continue a Suit A Condition that he shall not continue such a Suit If he continue it by an Attorny it s a Breach alit if the Attorny enters the Continuance without his privity Cro. Jac. 525. Gray and Gray To convey Land upon Marriage THE Condition was That after Marriage of the Plaintiff and having a Son by his Wife that if he conveyed Lands to the 〈◊〉 of â— l. per aâ—n in Tail to the Son to enjoy after the death of the Obligor that then c. the defendant shews the day of the Maâ— and the having of a Son and that he made 〈…〉 to a Stranger to the use of himself 〈…〉 after to the use of the Son in Tail the Plaintiff replies quod non feoffavit the Bar is ill for the Infant was not made party to the Conveyance nor had any Deed to prove his Estate but the Plaintiff by the Replication hath admitted the â—ar to be good and he may traverse the Feoffment or the Uses Cro. Eliz. p. 825. Statfield and Somerset A Condition if the Obligor pay 200 l. by the first of December 1634. that then the Surrenderce should reconvey on request the Plaintiff alledgeth a Request in 1644. the Defendant demurs Per Cur. the Surrender being absolute and in trust only for payment there being no payment at the day this Mortgage is irremediable Judgment pro Defendente 3 Keb. 786. Hancocks Case To perform a Promise A Condition to perform such a Promise made by the Obligor to the Obligee but it not appearing when the breach of Promise was made it was Error Stiles 17. Sanderson and Martin Condition to do things belonging to a Trade A Condition to make all such Linnen as he should want during his living single the Sempstress is not bound to find Linen nor a Tailor Materials the Intent may guide the Contracts contra of a Shoe-maker Gold-smith c. 1 Keble 466. Oates versus Thornel Condition to deliver Goods or pay Value A Condition to deliver all the Tackle of a Ship mentioned in an Inventory under the Hands of four Men or in default thereof to pay so much Mony to the Plaintiff before such a Feast as the four Men should value the Tackle at the Defendant said they did not value the Tackle no Plea for he had election to do two things and if he cannot do the one he is to do the other and it is at his peril to procure the Men to value the Tackle Moor n. 844. More and Morecomb A Condition at the end of the Term of a Lease of Lands and Goods to deliver the said Goods to T. or make him such satisfaction for them as shall be by two indifferent Persons to be elected for review of them thought fit the Defendant pleads two Persons were not elected the Plaintiff replies two were elected the Defendant rejoins that they were not chosen by consent of both for the Defendant conseâ— noâ— to the election Per Cur. the election by the Plaintiff is sufficient for the word indifferent shall be referred to the Parties elected and not to the election of the Parties aliter if it had been by two Persons indifferently to be chosen 2 Rolls Rep. 86. Talbot and Benson 5 Rep. Hungates Case Condition to reap and carry Corn c. over the usual Way A Condition to permit and suffer J. S. quietly to reap and carry c. without any disturbance or interruption of him the Defendant pleads permisit the Plaintiff replies there were some Acres sowen with Rye and shews the certainty and coming to reap he prohibited him saying these words Moneo prohibeo te quod neque metes ibid. neque abcarriabis c. this disturbance is a Breach 1 Anderson n. 188. fol. 137. Bur and Higs Condition to give an Account A Condition for a sub-Collector of the Subsidy to give a sufficient account in the Exchequer of all such Sums he had received and to discharge and save harmless the Plaintiff of these Receipts against the Queen and to procure to the Plaintiff a sufficient Acquittance or Discharge out of the Exchequer as in the like Case is used that then c. the Defendant pleads he had accounted c. and had discharged and saved harmless the Plaintiff c. and had procured Acquittance the Plaintiff demurâ— for he pleads in the affirm actâ—e he had discharged and shews not how 〈◊〉 This being a multiplicity of things if the general pleading be not good Cro. El. p. 253. Actâ— and Hill A Condition to give account of all Monies gathered by vertue of a Brieâ— c. the Defendant pleads he gave account of all such Monies ill Plea he ought to specifie what he had received or else to say he had received nothing 1 Keb. 760. Woodcot versus Cole A Condition to give a just and true account being a Bâ—s Clark the Defendant pleads performance the Plaintiff replies by receipt of 30 l. the Defendant rejoins it was stollen out of the Plaintiffs Count house the Plaintiff demurs the Robbery is a good Bar 2 Keble 761 779 830. Vere and Smith A Condition was to render a full account to the Plaintiff of all such Sums of Mony and Goods which were due and owing to W. N. at the time of his death which shall any ways come to the hands of the Defendant and shall upon such account within the space of one Week when required make an equal dividend of all such Sums of Mony and Goods and pay the Plaintiff his proportion of the same the Defendant pleads no Goods or Sums of Mony came to his
hands Et hoc paratus c. the Plaintiff replies a Silver Bowl belonging to the said W. N. at his death came to the Defendants hands such a day and place Et hoc paratus est verificare the Defendant demurs Per Cur. the Replication is ill for the Plaintiff hath not shewed a Breach for he ought to shaâ—e the Defendant had 〈◊〉 made a dividend or paid the proportion 1 Sanderâ— 100. Heymaâ— and Gerrard Conditions concerning Wills and Legaciâ— A Condition to suffer his Wife to make her Will vide antea A Condition to observe perform fullfil and keep the Will of M. D. in all Points and Articles according to the true intent and meaning thereof that then c. and D. M. by his Will bequeathed to the Poor of such a Town 10 l. and to J. S. 3 l. The Defendant pleads he had paid the 10 l. to the Poor and as to the 33 l. he is and always was ready to pay the same to the said J. S. if he had demanded it a good Plea for this Obligation the Condition of which being general to perform the Will hath not altered the nature of the payment of the Legacy but the same remains payable in such manner as before upon request 1 Leon. p. 17. Fringe and Lewis A Condition to find J. S. till he come to the Age of 21 years sufficient Meat Drink and Apparel he pleads he had found sufficient Meat Drink and Apparel all the time at W. it s good though he alledge it generally and Issue was taken upon the Apparel for he durst not take Issue upon all the things for the doubleness 12 H. 7.14 A Condition to have free ingress egress and regress he pleads he had ingress â—egress and regress and saith not frank male Bar Latch 47. Climson and Pool A Condition to have all the Debts and that the Defendant should not release any in a certain Schedule mentioned the Defendant pleads performance generally but doth not set forth the Schedule he should have shewed what were the Debts mentioned and then have averred performance de omnibus singulis quod non relaxâ—vit Qu. 1 Keble 680. Barcroft and Doughty A Condition If the Defendant should make composition with one E. for Lands c. then he should pay the Plaintiff 30 l. The Defendant pleads he made no composition the Plaintiff replies that the said E. did grant unto the Defendant a Rent-charge of 5 Marks in Fee in satisfaction of his Title c. which the Defendant did accept c. and so he made composition the Defendant protestando E. non concessit c. pro placito c. that the Defendant did not accept it in satisfaction c. a good Plea it s no composition without consent which depends upon the acceptance Hob. p. 178. Earle and Tuck A. bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make and that the Defendant did not observe it the Defendant pleads that the King and his Councel did not make the Decree no Plea Marsh Rep. 78. Smithson and Simpson Expositions and Constructions of a Condition I shall now shew how Conditions are to be expounded and construed by some special Rules and Cases and what shall be intended a good performance Et vide supra sparsim sub multis titulis Sometimes Conditions must be performed according to the very Words and Circumstances A Condition to stand to the Award of J. S. so as the said Award be made in Writing indented under his Hand and Seal the Award shall not bind if it be not indented though it be under Hand and Seal 1 Rolls Abr. 409. Holmes and Hoâ— Vid infra plus tit Pleadings Where a Man is to plead according to the express Words of the Condition If the Condition be performed in substance it is good though it differ in words Where one is bound to deliver the Testament of the Testator if he pleads he hath delivered Literas Testamentarias it is good 7 E. 4.3 When the Condition is to make a Feoffment Lease and Release is a good performance 17 E. â— 3 Though this be a collateral Condition yet it is well performed for it amount in Law to a Feoffement Co. Lit. 207. a. If the Covenant be to grant the Reversion of the Tenant for Life or Years and he enters upon the Lessee and makes a Feoffment and the Lessee re-enters the Condition is performed for the Effect is performed 1 Rolls Abr. 426. The Condition is to give Licence to the Obligee to carry Trees c. and he gives him Licence the Condition is performed though a Stranger who has Right disturbs him for this extends but to the person of the Obligor by these words 18 E. 4. 20. b. Aliter if the words had been he shall have Licence But it must be performed in substance exactly and not in shew for the performance of a Condition ought to be true full and effectual according to Goodal's Case 10 Rep. And not illusory Lit. Rep. 130. Brockhams Case A Condition is to retract such a Suit a Discontinuance of this is no performance because it differs in substance for a Retraxit is a Bar in another Action and so is not a Discontinuance 20 E. 4.8 Aliter in Case of an Award as if it be awarded he shall withdraw his Suit Discontinuance is a good performance of the Award for the intent of the Arbitrator was not that he should make a legal Retraxit but prosecute the Suit no farther 21 E. 4.38 Improper words shall not vitiate a Condition words by which the intention of the parties may appear are sufficient to make the Condition of a Bond. A Condition to stand to an Award ita quod the Award be made on or before c. but if the Arbitrators shall not agree upon the Award that then they shall choose and elect an indifferent Man and they shall stand to his final end c. Per Cur. the Condition is good enough though not so properly expressed And that the Defendant had forfeited his Obligation for Non-performance of the Award of the Umpire and though such construction will prejudice the Defendant and Conditions being for the benefit of the Defendant shall be construed favourably yet the Law may not be altered But no intention of the parties shall be construed contrary to the express words 39 H. 6.10 a. The Condition was that if the Defendant do not pay so much Mony the Obligation shall be void it was naught though the intention was he should pay the Mony 1 Sanders 66. Bâ—er and Wigg The Condition was to appear c. and the Conclusion was then the Condition of this Obligation shall be void and so no words to make the Obligation void but per Cur. It is a good Condition though these words â—id been omitted 2 Sanders p. 78. Maleverer and Hawksby Conditions construed according to Intent NO intention of the parties shall
construe â—e contrary to the express wâ—ds Vid. aâ—a 9 H. 7.20.17.22 Conditions ought to be construed according to the intent of the parties if it may constare and Conditions of Obligations are not broken unless the intent be broken A Condition to appear such a day in such a Term and the Obligoâ— appears at a day in the same Term before the day mentioned in the Condition at the Suit of another Man which is 〈◊〉 appearance in Law for all Suits which shall be commenced against him the same Term yet because this is but an appearance by fiction in Law and not an actual appearance at this day the Condition is broken for peradventure had he appeared actually special Bail might have been required 1 Roâ— Abr. 426. Sir Richard Bullers Case If the Lessee of an House covenant not to lease the Shop Yard or other things pertaining to the House to one that sells Coals and after he lets all the House to one that sells Coals he had broken the Condition for he had broken the intent 1 Rolls Abridg. 427. Bonner and Langley A Condition that the Lessee shall not do any wast and the Lesse suffers the House to fall for want of covering and repairing though this is not a Feasance but only a permission yet the Condition is broken 1 Rolls Abr. 428. Qu. The Condition of the Obligation was if the said R. â— shall not at any time or times be aiding or assisting to T. E in any Actions Suits Vexations c. The Plaintiff assigns a Breach that before the Obligation he brought Trespass against the said T. E. and R. T. and that he had Judgment against both and that after the making the Obligation T. E. and R. T. brought Error Per Cur. it is no Breach for it is not the intent noâ— reason he should be barred to defend himself by joyning with T. E. against the unjust proceedings of the Plaintiff And so if after Verdict the Plaintiff had released and yet took Judgment by Execution they two might have joyned in Audits Queâ—el Hobart p. 30â— 1 Rolls Abr. 429. Lamb and Tompson This is not properly 〈◊〉 Action but a Suit to discharge him of a â—oâ—tio Action wherein they must joy A Condition if the Plaintiff might quietly take and enjoy Woods sold and if the ground where upon it groweth be four Miles distant from Rye c. then c. The Defendant pleads the Plaintiff had quietly c. and that the said Land by the next high and usual way for Carriages is 4000 Paces from the Town of Rye Per Cur. the intent was that the Plaintiff by selling that Wood should not inour the danger of the Statute of 23 Eliz. c. 4. And it ought to be pleaded that it is every way distant four Miles from Rye and not not by usual ways and the four Miles by 4000 Paces is well 2 Leon. p. 113. Mingâ— and Barl. The Condition was that if the within bounden J. L. shall happen to dye without Issue of his Body lawfully to be begotten that then if the said J. L. by his last Will or otherwise in Writing shall in his Life time lawfully assure c. The Condition being made in benefit of the Obligor shall have Construction according to the intendment of the parties to be collected out of the words of the Condition and the intention of the parties was that a Conveyance should be made by the Obligor in his Life time by his Will or otherwise of the Lands Jones Rep. p. 180. Eaton and Laughter The Condition if the Obligor pay so much then the Obligation to be void or otherwise it shall be lawful for the Obligee quietly to enjoy such Lands The Defendant pleads quiet enjoyment The Plaintiff demurs for that the Condition depends on the Payment or Non-payment and that concerning the Land is idle Per Cur. Conditions are to be taken according to the intent of the parties if it may constare but as these words then to be void are placed here it cannot refer but to that which precedes and not to the Land which ensues Regula Words in the beginning or end of things refer to all but those in the middle refer ad media tantum as Lease for Life Remainder for Life rendring Rent this goes to both Estates but Lease for Life rendring Rent Remainder for Life aliter Siderfin p. 312. Ferres and Newton In the Condition it was recited that the Sheriff had constituted the Defendant Bailiff of an Hundred within the County If therefore the Defendant shall duly execute all Warrants to him directed then c. Warrants shall only be intended Warrants directed to him as Bayliff oâ— the Hundred Horton and Day cited 2 Sanders 414. And such only as are to be executed within the Hundred And the Plaintiff must shew the thing to be done was within the Hundred Allen p. 10. Sâ—angâ—on and Day mesme Case A Condition that his eldest Son shall marry the Daughter of the Obligee and the Son lye the second Son shall not marry her that was not the intent 27 H. 4.14 When a Man is bound to do or permit a thing he ought to do or permit all which depends upon this in the performance of the thing 11 H. 4. 25. b. 1 Rolls Abr. 422. Collateral things must be done or permitted a Covenant to levy a Fine it shall be at his Costs who levies it A Man is bound to carry my Corn it is no Plea for him to say he had no Cart for he is bound by implication to provide a Cart and all other necessaries for the Carriage So to mow my Grass he must find Instruments to cover my Hall he is bound to find necessary Stuff 16 H. 7.9 A Condition that J. S. shall have ingress into his House he ought to have a common entrance at the usual Door and shall not be put to enter in by a hole backward or by the Chimny nor may the other make a Ditch before the Door If a Man hath Right to a Chamber he must not be barred of his ingress and yet the Doors ought not to stand open at Midnight If I am bound to suffer J. S. to have a Way over my Land if I lock the Gates I have broken the Condition Latch p. 47. Climson and Pool A Condition is to be performed as near as may be The Condition is that J. S. and R. G. shall come in their proper persons before such a Feast to London and to bring two Sureties to be bound with them to the Plaintiff in the Suit contained in the Obligation then c. J. S. dyes yet R. G. must do this and although 〈◊〉 Condition be not performed in the whole yet 〈◊〉 he may perform this by any possibility he must do it 15 H. 7.2 4 H. 7.3 A Condition that he or his Heir shall surrender c. before such a day to the use of the Plaintiffs Executors his Heirs and Assigns c. The Defendant pleads the
Plaintiffs Executor dyed after the making of the said Bond and before the said Feast viz. c. The Plaintiff demurs and Judgment for the Plaintiff 1 Brownl Rep. 7â— Horn and May. In many Cases Endeavour shall excuse The Condition was to enfeoff Baron and Feme of Land if Baron die if he do it as near as he can it is good 15 H. 7.2 13. If there be an indifferent construction which may be taken two ways that way shall be taken which is most reasonable to make the Obligation to stand in force The Condition was that whereas the Defendant had granted an Annuity to the Plaintiff that the Defendant should make farther assurance to the Plaintiff for the enjoying thereof within one Month when he should be thereunto required Per Cur. the Month shall be after the Request and not within a Month after the date of the Bond Stiles p. 242. Wentworth versus Wentworth A Man shall be supposed by the Condition to do what properly belongs to him The Condition of the Obligation was that the great Bell of M. should be carried to the House of the Obligor in W. at the Costs of the Men of W. and there to be weighed in the presence of c. and of this the Obligor to make a Tenor to agree in tonâ— sono with the other Bells of M. In this Case the Obligor ought to weigh this for it belongs to his Occupation 9 Ed. 4.3 b. 1 Rolls Abr. 465. If a Man be bound to carry my Corn he must find a Cart so to mow my Grass he must find Instruments so to cover my Hall he is bound to find necessary Stuff 16 H. 7.9 A Man may be said to forfeit a Condition if he do what in him lies to break it or if he do such an Act which may consequently produce a Forfeiture though in strictness it be not broken by him A Condition not to devise a Lease to any person but to his Child or Children and he deviseth this to a Stranger the Executor never consents to the Devise yet this is a Forfeiture for he that had done all that was in his power to pass this by Will and put it in the power of the Executor to exeâ—ute it 1 Rolls Abridg. 428 429. Burton and Horton The Condition is that the Grantee of a Reversion shall not grant this over to J. S. If he grant the Reversion to J. S. by his Deed though the Lessee never attorn yet this is a Forfeiture Id. ibid. A Condition not to assign his I ease that so it may come to J. S. and after he assigns this to J. D. the Condition is broken for as much as by this means it may come to J. S. 1 Rolls Abr. 429. Cummin and Richardson Where a Condition of an Obligation shall be expounded by a matter debâ—rs The Condition was to save the Plaintiff harmless from all Actions and Damages that might arise upon the Release of the Defendant out of the Execution being then in Execution at the Plaintiffs Suit from all persons that might trouble him concerning the said Release The Defendant pleads the Plaintiff sued one N. for 100 l. and that he and Hart became his Bail and that the Plaintiff had Judgment against N. and the Bail and the Defendant was taken in Execution and thought the Plaintiff released him c. The Plaintiff replies and confesseth the Bail and Judgment but saith that Hart gave him Security for his Mony and the Plaintiff promised H. he might lay the Execution on the Defendant and that he would not release him sans consent of H. on which H. procured him to be taken in Execution and moved the Plaintiff to discharge him who aâ—quainted him with his promise to H. ut supra and thereupon the Defendant made him this Bond and so he discharged him H. brought an Action against him for Breach of Promise and recovered 150 l. damages and so he was damnified The Words are apparent to save harmless from some damage that might arise not upon the Release alone but upon some collateral thing besides the Release and yet by means and occasion of the Release Hâ—bart p. 269. Wild and Wilkinson Expositions of Words Sentences and References in Conditions During the Time THE Condition was whereas the Lord A. had deputed T. J. to be his Deputy Post-Master to execute the said Office from c. for the term of six Months following Now if the said T. J. shall and do for and during all the time that he shall continue Deputy Post-Master execute and pay such Mony c. Per Cur. the Condition refers to the Recital only whereby the Defendant was bound only during the six Months and no longer and the indefinite time shall be construed during the six Months 2 Sanders 413. Lord Arlington and Merrick Condition faithfully to execute the Office of and quarterly to make Accompt of all Monies by him received c. and pay all Monies by him received and do Accompt such times as he shall he reasonably required The Defendant pleads performance to all but the Accompt and for that he saith he was never reasonably required to do this Per Cur. this Clause being reasonably required goes only to the payment of the Mony bring the last antecedent and the Accompt is limited to be made quarterly Lit. Rep. 101. The King and Points Then living The Condition was if it happen the said J. M. to dye before the Feast of c. without Issue Malâ— of her Body by R. B. begotten then living that the Obligation shall be void The Defendant pleads post confectionum obligationis and before the said Feast the said J. M. dyed sans Issue Male of her Body then living The Plaintiff replies she had Issue H. B. and before the said Feast J. M. dyed the said H. B. then living and that H. B. dyed before the said Feast Per. Cur. the Plea is good the words then living shall not refer to the time of J. M. death but to the Feast mentioned in the Condition 1 Anderson Bold and Molineux Payments A Condition to perform all Covenants Payments and Agreements contained in a Deed Poll. The Defendant pleads the Deed Poll in haec verba in which was contained one Grant of Lands for 100 l. and 200 l. to be paid in which was a Proviso If the Defendant should not pay for the Plaintiff to one J. S. 40 l. at such a day the Bargain should be void The Defendant pleads performance of all Covenants the Plaintiff assigns a Breach in not payment of the 40 l. The Defendant demuâ— Judgment pro Defendente The word payment in the Condition shall have relation only to such payments mentioned in the Deed as is compulsory to the Defendant but this was not for the Defendant may if he will forfeit his Land 1 Brownl Rep. 113. Briscoe and King Condition to pay when the Kings Majesty shall be Restored by Conquest Accomodation or otherwise the difference
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.
into the Court by the Plaintiff nor appears to be in Court omnino Per Cur ' This is aided per Stat. 27 Eliz. c. 5. upon general Demurrer but per Cur ' the Defendant ought to have shewed the Deed and not the Plaintiff by Law although the Court sometimes will compel the Plaintiff to give a Copy of an Indenture to the Defendant if he swear that he never had a part or had lost it But this is ex gratia Curiae not ex debito Justiciae for the Entry always supposeth this to be brought in Court by the Defendants and so 7 H. 4.1 that the Plaintiff in such case ought to shew the Indenture is no Law at this day 1 Sanders 8 9. Jevans and Harridge 2 Keb. 1 16. mesme Case Demand Oyer to save the advantage of Demurrer pur Variance 1 Keb. 426. Billage and Blake The Defendant prays Oyer of the Condition which is for performance of Covenants in an Indenture made between the Plaintiff on the one part and H. H. on the other part on the part of the said H. H. to be performed and upon Oyer of the Condition the Defendant pleads that the Indentures were made between the Plaintiff and the said H. H. such a day and place and one part under the Seal of the Plaintiff the Defendant brought in Court and further that there were not any Covenants in the said Indenture of the part of the said H. H. to be performed Et hoc paratus c. The Plaintiff prays Oyer of the Indenture per the Defendant brought in Court which is entred in haec verba and upon this it appears that there are divers Covenants to be performed on the part of H. H. and upon Oyer of the said Indenture being so entred the Plaintiff demurs It was urged for the Defendant That the Plaintiff ought to have shewed a breach of one of the Covenants to maintain his Action But per Cur. when the Defendant brought the Indenture into Court and saith there are no Covenants in it c. Now upon Oyer of this the Indenture is made parcel of the Plea and by this it appears Judicially to the Court he had pleaded a faux Plea and had taken an Averment against the truth of that that appeared to the Court by the Indenture it self and so the Plaintiff need not shew any matter of Fact in his Replication to maintain his Action but a Demurrer was more proper 1 Sander's 316. Smith and Yeomans Condition to perform Covenants in an Indenture i. e. to pay 300 l. and to Repair as three shall award The Breach was that Award was made and the Defendant had not Repaired The Defendant prays Oyer of the Indenture which was well and of the Award and sets it forth untruly The Oyer was set aside because Irregular and if the Award be not at first truly set forth the Defendant might traverse it but cannot pray Oyer of any thing not in Curia prolat ' 3 Keb. H. 28 Car. 2. p. 716. Sands and Tâ—mlinson Le Defendant demand Oyer del Oblig ' de Condition la form 2 Sanders 75. Le Defendant demand Oyer des 2 Oblig ' Demur ' 1 Sanders 282. Defendant ad Oyer de Condition de Oblig ' apres ad Oyer des Instructions 2 Sanders Le Defendant sur Oyer del ' Condic ' a performer Covenants amesne en Court le Indenture plede Conditions performe 1 Sanders 52. Monstrans de Obligation Rast Entr. 180. b. Condition Where a Recital in a Condition shall be an Estoppel BY a bare Recital in an Obligation one shall be Estopped 13 Ed. 4.4 A Recital by a single Bill shall estop the party 25 Ed. 4.54 Recites by an Obligation that he made a Will he is estopped to say the contrary 2 3 El. Dyer 190. As to Estoppel by Recital there is a difference where it goeth in the generality and where in the particularity For where it is in the generality as to enfeoff one of all the Lands descended to him or to be Nonsuit in all Actions depending in the Common Pleas he shall not be estopped to say that he hath not any Land or that he hath not any Action depending there 18 Ed. 4.4 Against a Condition to perform all Covenants a man may say there were not any Covenants 21 H. 4.54 Condition to pay Rent reserved upon a Demise according to such Articles The Defendant pleads he hath not any thing in the Land demised by such Articles Per Cur. upon demand he shall be estopped to plead that Cro. El. 3. p. 362. Strowd versus Willis Popham p. 114. Condition whereas E.W. hath commenced divers Suits in B. R. against W. H. If the said W. H. shall without delay by his lawful Attorney appear and make answer to all Actions and Declarations commenced against him that then c. The Defendant pleads That postea viz. such a day W. H. appeared and paratus fuit respondere C. but that there were not any Actions there depending Upon Demurrer per Court ill Plea He is estopt to plead that there were not any Actions there depending As if a man be obliged to perform the Covenants in the Indenture on his part to be performed it 's no Plea to say there were not any Covenants on his part to be perform'd 3 Eliz. Dyer 196 279. Cro. El. p. 756. Willoughby versus Brook p. 42 Eliz. C. B. Condition to perform Covenants in Indentures between W. S. and A. his Wife of the one part and the Plaintiff on the other part The Defendant pleads the Indenture as the Indenture of W. S. and A. his Wife whereas in truth the Feme never sealed The Plaintiff replies That the Indenture shewn by the Defendant non fuit fact ' inter W. S. A. his Wife on the one part and the Plaintiff on the other Per Cur. the Plaintiff is not estopped to say that the Deed shewn is not the Deed of the Baron and Feme but he is estopped by the Condition to say that there is not any such Indenture Cro. El. p. 769. Ship versus Steed Condition was Whereas the Plaintiff had carried so many Thousand of Billets for the Defendant to D. amounting at so much a 1000 to 100 l. If the Defendant therefore should pay the 100 l. The Defendant pleads upon Oyer that the Plaintiff did not carry and deliver so many Thousand of Billets c. Per Cur. this Recital in the Obligation is an Estoppel to the Defendant to plead the contrary Stiles 103. Allen 52. Hill 23 Car. 1. Hart versus Buckminster The Defendant pleads in Abatement that he is Earl of Nova Albion in Ireland and ought to be impleaded by that Name and not by the Name of Edmund Plowden Kt. Per Cur. He pleads he was Earl of Nova Albion in Ireland before he entred into the Bond which he cannot now plead for he is estopped to plead so by his own Deed which testifies the contrary Stiles p. 187.
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
332 Condition to pay Rent 189 Bond of Covenants for Reparations 197 Where a Recital in a Condition shall be an Estoppel 384 Of Recognizances in Chancery 266 Recognizance for Bail 267 Of Recognizances for the Good Behaviour 309 310 311 Recognizance to appear and answer for Felony 313 Release pleaded to Bonds of Covenants 202 Release pleaded to Bonds 417 One may not release a personal thing as an Obligation on a Condition subsequent 418 A Possibility not to be released 422 Where it shall be said a Covenant and not a Release 423 What amounts to a Release in Law of the Debt as by Intermarriage or making Executors 473 478 Release by an Infant Executor 359 Retraxit a good Bar 420 Of Repugnant Conditions 90 Request to do a thing within one Month after he shall be requested how construed 123 Not before Request to be performed 125 Where Request is necessary 164 Action against a Receiver or Servant 367 S. SEaling of Obligations 27 Seals broken off a Bond and non est factum pleaded 433 Bond from Under-Sheriff to High-Sheriff 50 Of Sheriff's Bonds 67 Explaining Stat. 23 H. 6. c. 6. 68 The Sheriffs Return upon that Statute 71 What Obligations are void by that Statute and what not in respect of the persons to whom made and in what Courts 73 to 77 Pleadings on Sheriffs Bonds 80 Bond to be a true Prisoner 88 Bond to be a true Prisoner for Fees ibid. Statute for performance of Covenants not to be preferred before a Bond 2 Of Statutes and Recognizances Of Statute Merchant and of the Staple 254 The manner of making them 255 By whom acknowledged and how 257 Before whom taken 258 Of Actions brought on Statutes and Recognizances 259 Of Scire Fac. and Process 261 Declarations on Statutes 262 In what Courts taken and sued 264 Sureties Vid. Counterbonds 214 Condition to surrender Copyhold Lands 222 To satisfie embezilled Goods 224 Not to continue Suit 234 Scire Fac. on Bail Bond 269 Suits on Obligations 355 Per Bodies Politick ibid. Per Joint Obligees 356 Per Baron and Feme 357 Per Alien ibid. Per Executor or Administrator 358 Against Executor or Administrator 361 Against Baron and Feme 363 Against Joint Obligors 364 Against a Servant or Receiver 367 Bond where suable 368 T. TEnder and Refusal pleaded 425 426 Time of Payment or Performance 116 Time convenient given 124 Traverse 36 367 386 Condition that a Tradesman shall not use his Trade 48 49 Condition to do things belonging to a Trade who shall do them 236 Tryal Issue on Bonds of Covenant 205 Bond where tryable when made beyond Sea 453 Or at another place of Payment in the Condition 455 Joining Issue on Payment 461 On a Collateral point 462 Bonds in Trust 419 423 V. BOnd 's void by Statutes of Usury and good Learning of usurious Contracts 59 60 61 62 Variance on Bonds of Covenants 199 Variance between the Original and Declaration 376 Variance in the Names and Sum 376 378 Variance in the time of Payment 380 Tender uncore prist pleaded 430 Venue 453 455 Verdict 463 Condition to pay Mony on a Voyage 139 W. COndition to pay on Warning 137 When Warning ought to be given of the Action brought if it be to appear within eight days warning 23â— Condition to reap and carry away Corn over the usual way 237 Of Witnesses to a Bond 27 Words written in a Bill after the In cujus rei testimonium how to be taken 12 Conditions concerning Wives 135 229 Conditions concerning Wills and Legacies 239 A Will cannot release a thing created by Deed and so discharge Creditors 422 THE LAW OF Obligations and Conditions The Nature of an Obligation and with what respect it stands in the Eye of the LAW AN Obligation is taken in the Common Law for a Bond containing a Penalty with a Condition for payment of Mony or to do or suffer some Act or Thing c. And a Bill is a single Bond without a Condition Co. Lit. 172. a. How they differ farther vide infra Tit. Bill It s not a Debt simply by the Obligation but the performance or breach of the Condition makes it to be a Debt for the Obligation is guided by the Condition Yelv. pag. 192. 1 Brownl p. 109. Neal and Sheffield A single Obligation is taken most in favour of the Obligee but an Obligation with a Condition is taken most in favour of the Obligor 10 H. 7. o. 16. It s a Debt presently upon the sealing and delivery it is debitum in praesenti though solveur dum in futuro It is a chose in Action Therefore if a Bond be made for payment of Mony to a Feme Sole Feme takes Husband and dies the Debt due upon the Bond becomes not a Debt due to the Husband but to him that administers Stiles Rep. 205. Cowley and Lockson Nov 149. Norton and Glover A Bond is to be paid before a Statute for performance of Covenants not broken 5 Rep. 28. Harrisons Case When none of them were nor ever perhaps shall be broken such possibilities shall not bar present Debts Cro. Eliz. p. 467. A Bond for a long continuing Duty will not hinder payment of a Legacy 2 Keble 759. Davis Case It is a Debt where the Obligation is at the time of the decease of the Obligee and not where the Obligee inhabits and accordingly shall be accounted bonae not abilia 1 Sanders 274. Cro. Eliz. Byrons Case By grant of omnia bona ontalla felonum Obligations do pass by the Kings Grant but by a particular Persons Grant of omnia bona catalla Obligations do not pass 1 Keble 417 467 497. Corporation of Southampton against Richards 1 Siderfin 142. mesme Case If a Man grant to J. S. all his Goods and Chattels in such a Box and in this Box are Obligations there the Obligations pass by reason of the special Reference exprest by the Grant Yelv. p. 69. Chanels Case Two Executors to J. S. one Executor had a Bond wherein A. B. was bound to their Testator he in satisfaction of his own proper Debt to C. D. by word dedit deliberavit the Obligation to C. D. and dies the Plaintiff being surviving Executor brings Doâ—e against C. D. per three Justices the Executor may give away the Instrument as well as release a Debt but is ascribed to the Deed before the sealing it s a good part if after sealing it s a Condition per Crew Bulst 3. p. 302. Tompson and Butchor As for Declarations on Bills Obligatory and Pleadings see in their proper places In respect of Obligors Obligees I shall consider Obligors What persons may make Obligations By what Name Who are bound though not named What persons may or may not make Obligations EVery natural Person or Body politick not prohibited by the Law may bind themselves But some persons are incapacited by the Law to bind themselves and some Obligations are void and others only voidable If a Monk make an
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
that he cannot do sans Licence Moor n. 294. Crocock and White An Action is brought against the Heir of Edmund A. the Condition Whereas the said Ed. A. such a day hath granted and given to the Plaintiff the Presentation to the Church of D. if therefore the said Ed. A. from time to time shall make good the said Grant from all Incumbrances made or to be made by him and his Heirs that then c. the Grantor died the Church became void the Heir of the Grantor presented this tortious Presentation is no Breach but this extends only to lawful disturbance by the Heir for it appears by the pleading the Heir had no right to present his Father having granted that before Per Hobert the words shall be construed as if it had been said that he shall enjoy the same from any Act or Acts made by him or his Heirs and in this Case there ought to be a lawful Eviction to make a breach of the Condition but otherwise if the Condition had been that he shall peaceably enjoy from any Act or Acts made by him or his Heirs for in this Case a tortious disturbance would have been a Breach of the Condition Winch p. 25. Dr. Hunt versus Allen. The Condition was That he should enjoy such Lands sans Eviction the Breach was assigned in the Recovery by Verdict in Ejectione Firmae upon a Lease made by one Essex and doth not shew what Title Essex had to make the Lease but avers that Essex had good Title and it might be he had Title derived from the Plaintiff himself after the Obligation made and therefore he ought to shew that he had good and eigne Title before the Lease made and in the Exchequer-Chamber the Replication held ill Cro. Jac. p. 315. Kirby versus Hansaker 2 Sanders Hele and Wotton though this was after a Verdict 2 Sanders 177 178. Id. The Condition was If the Obligee peaceably enjoy an Acre of Copyhold Land according to the Custom of the Mannor the Defendant pleads by Custom of the Mannor the Obligee ought to pay to the Lord a Rent and for non-payment the Lord to re-enter and that the Obligee did not pay it and the Lord entred and demanded Judgment si Actio bon Plea Benl p. 32. The Condition was to enjoy peaceably against M. Breach assigned that M. had entred and cut down five Elms upon Evidence it was A. Servant of M. by commandment and in the presence of his Master had entred and cut and good 1 Leon. 157. Seaman and Browning Debt on Obligation for performance of Covenants Breach assigned was the Defendant Lessor covenanted that it should be lawful for the Plaintiff being Lessee quietly to enjoy the Land and that the Lessor himself ousted him this illegal ouster was a Breach of the Covenant Cro. El. 543. Corus Case The Condition is If such Lands be discharged of all Incumbrances made by him except the Estate and Title of Jointure of his Wife Elizabeth that then the Breach is assigned that the Defendant before the Obligation made had surrendred these Lands to the use of Elizabeth his Wife it s no Breach vide Cro. El. p. 761. Woodward vers Dannock In Debt on Bond against Baron and Feme being made in her Widowhood with Condition that she her Heirs or Assigns keep Contracts and Covenants made between former Husband and his Lessee the Plaintiff and there was an Agreement that the Plaintiff should enjoy a Warren of the Demise of the former Husband and that he entred till put out by the Defendant Issue on the Agreement found pro Quer. Jones moved there was no Estate alledged in the former Husband in jure Uxoris whereby though the second Husband be assigned in Law yet he enters of his own wrong and not as claiming under her but per Windham it s not requisite that the Husband be Assignee of the Estate but her Assignee of Contract 1 Keble 348 512. Hall versus Creswel and his Wife Judgment pro Quer. A Covenant to save harmless from lawful Eviction the Defendant pleads performance the Plaintiff replies That J. S. took out a Writ of Hab. fac poss in B. I. debito modo exeunt ' and by vertue thereof entred and expelled him per Cur. debito modo is not sufficient without shewing particulars he ought at least to recite the Term of the Judgment but not the Title of him that evicted 1 Keble 379. Nicholas and Pullâ—n The Condition was That the Obligor should not enter nor claim a certain House the Defendant said he did not enter nor claim the Plaintiff replies he claimed no Plea he should say he came to the Land and claimed the Land and entred into the Land and nothing shall be traversed but the Claim 4 H. 7.13 not the Entry A Condition to discharge a Mesuage of all Incumbrances there one may plead generally that he did discharge it of all Incumbrances but if it be to discharge it of such a Lease he must shew how 1 Brownl 63. The Condition was That he shall suffer his Lessee for years to enjoy c. and that without the trouble of him or any other Person a Stranger enters per eigne Title the Condition is not broken for this word suffer is a passive and all the rest is to be referred to this but if any procurement or occasion of disturbance be by the Lessor his Executors or Assigns then he forfeits the Obligation 2 Ed. 4.2 b. 1 Rolls Abr. 425. Q. 1. A Man is bound to warrant Lands by Obligation in Action de Det port pacifice gavisus est is no Plea for it s but an Argument that he had warranted and it s but a fallible Argument for the Party may enjoy peaceably without having Warranty Dyer 42. b. 43. a. 2 Co. fol. 3. A Condition peaceably to enjoy from the 1st of Febr. usque Michaelmas-day Tithes paying half yearly during the Term and on default of payment the Defendant Lessor to be free from all Obligation to the Plaintiff he replies he assigned a Breach in non-payment of Rent at Michaelmas which is after the Term ended and so the Defendant demurs Also the substance of the Suit is quiet Enjoyment and therefore ought not to be taken by protestation sed per Cur. enjoyment need not be answered where it s defeasanced by payment of the Rent yet Judgment pro Def. 3 Keb. 594. Biggin and Bridge A Condition that he shall suffer his Lessee for years to enjoy his Lands during the Term and that without trouble of him or any other Person a Stranger enters per eigne Title per Cur. the Condition is not broken for that this word suffer is a passive and all the residue is to be referred to this but if any procurement or occasion of disturbance by the Lessor his Executors or Assigns then he hath forfeited the Obligation a Man is bound to permit Land to descend to his Son he need not aver that this had descended to him
Marriage of W. N. Id. ibid. 462. A man is bound to H. to pay him 1000 l. after that he had married his Daughter and afterwards he married her and brought Debt upon this Bond and it was not averred that he had given Notice to him of the marriage but demanded the Mony Here is no need of Notice the Request seems to imply Notice P. 2 Car. B. R. Hodges and Moore If I am bound to be Attendant upon you at every time that you shall come to the Manor of D. I am bound to take Notice when you come at my peril 8 Ed. 4.1 b. Condition was where the Obligor is Lessee for years of the Obligee of certain Lands if he render back the possession of the Land at the end of the term to the Lessor his Heirs and Assigns upon request then c. and after the Lessor assigns over his Reversion the Assignee at the end of the term requests him to render back the Possession to to him He is bound to do this without any Notice given who is Assignee 1 Rol. Abr. 465. Linghen and Paine Condition to pay the Damages which shall be recovered by J. S. against him there needs no Notice 1 Rol. Abr. 468.3 Condition was to pay the Second day of May at the Defendant's House giving Thirty days warning Defendant pleads the Plaintiff did not give thirty days Warning The Plaintiff demurs First Because no Notice is requisite but surplusage the day and place of payment being certain without it Secondly If Notice be necessary the Obligor must give it to which the Court agreed 3 Keb. 222. Johnson and Muller Condition of Obligation is to acquit of several Bonds entred into c. Defendant pleads performance Plaintiff replies He was sued and retained and Attorney c. Defendant demurs for that the Plaintiff had not alledged to him particular Notice of the Suit per Cur. particular Notice is not requisite in this case because he hath taken upon him to acquit him Siderfin p. 442. King and Atkyns Where by common Intendment the thing to be paid or done cannot lye in the conusance of the Conizor there Notice is requisite A Man is bound to pay an 100 l. two Months after A. returns from Rome He ought to give Notice of his Return before A. can have an Action on this Bond for he may land at Newcastle or Plimouth Agreed per Cur. in More and Hodges p. 2 Car. B. R. If I am bound to enfeoff such persons as the Obligee shall name he ought to give Notice to me whom he will name 8 Ed. 4. Arbitrement 15. Vide pluis sub titulo Who to do the first Act. Who is to do the first Act. WHere the Obligor is to do such an Act by the direction of a Stranger he ought to procure the Stranger to give the direction Lit. Rep. 13 14. Vide suprà sparsim Kelw. p. 53. a b. One is bound to carry all the Timber in such a place before such a time and lay it in such a place by the direction of a Stranger he ought to procure the Stranger to give the direction Condition to give such a Release as the Judge of the Prerogative Court shall direct Defendant pleads Dr. L. was Judge of the said Court and quod idem Judex nec devisavit nec appunctuavit aliquam relaxationem c. secundum formam c. it s no Plea for the Judge is a Stranger to the Condition and the Condition is for the benefit of the Obligor and the performance thereof shall save his Bond he hath taken upon him to perform it at his peril and he ought to have procured the Judge to have devised it and directed it Otherwise if it had been as the Obligee or his Counsel should devise 5 Rep. 23 b. Lamb's Case Condition to levy a Fine to the Obligee he is not bound to levy it if the Obligee doth not sue a Writ of Covenant against him 5 Rep. Palmer's Case 127. 1 Rol. Abr. 458 5. 5 Rep. 22 b. Halling's Case Condition is A. shall deliver to B. a certain quantity of Hops well pick'd and that B. shall have election of them out of 204 Bags of Hops of A. of his own growth B. ought to do the first Act i. e. he ought to require A. to shew him the 204 Bags for he cannot make election without view of the 204 Bags which are in A's custody 1 Rol. Abr. 466. Brook and Booth versus Woodward March 24. id Case Condition that the Obligor being a Parson shall resign to the Obligee within a certain time for a Pension as they shall agree The Obligee must agree and tender a Deed of this to the Obligor before he is bound to resign Q. 14 H. 4.18 b. cited in 5 Rep. 21. b. What things will excuse the performance of a Condition and what not Act of God Vide supra Act of Law supr Act of the Obligee supr Acts of a Stranger REgularly If the Condition be to be performed by a Stranger and he refuse the Obligation is forfeit for the Obligor hath taken upon him that the Stranger shall do it or accept it Condition is that the Son shall marry the Daughter of the Obligee if the Daughter refuse yet the Condition is broken 1 Rol. Abr. 452. 5 Rep. 23 b. Lamb's Case A. and B. submit to the Arbitration of C. by Bond. C. awards A. to pay 10 s. to B. who tenders this and B. refuseth The Obligor is not excused for B. is not a meer Stranger but is privy 22 Ed. 4.25 b. cited 1 Rol. Abr. 452. Q. I take the Law to be otherwise Condition to assure a Copyhold to A. and B. his Wife who are Strangers to the Obligation for the Life of C. and the Obligor at the request of A. surrenders this to A. to the use of such persons as he shall nominate this is not any Performance For A. who is a Stranger may not dispense with or alter the Agreement but to do as limited in the Condition 1 Rol. Abr. 457 T. Stile and Smith Defendant is bound that his Son that is a Stranger to the Bond shall seal a Release He must seal it at his peril and shall not have time to consult it or demand it to be read if he be not Lettered himself 2 Rep. Manser's Case Suits upon Obligations How they are to be brought In respect of the persons who bring the Action against whom it is brought Action brought by a Body Politick THey must be named by the true Name of their Corporation yet if the Essential part of a Corporation be named it is sufficient in an Action As ad respondend ' Majori Burgensibus de Lyn Regis in Com' N. and it was found they were Incorporated Majores Burgenses burgi de Lyn non peraliud nomen Per Cur. The omission of this word Burgi shall not bar the Plaintiffs 1 Brownl Rep. 57. Mayor and Burgesses of Lyn versus
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