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.
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
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
221 225. Blith and Hill Declaration IN the Declaration is omitted ad eandem solation faciend obligo me haeredes meos it was amended Cro. Jac. 147. Forger and Sales Alit if one declare in debet detinet where it ought to be in the detinet only ibid. Winch p. 20. If I declare on Obligation against a collateral Heir the Declaration must be special as Debt against the Brother and Heir the Defendant pleads riens per descent from his said Brother but he had Assets by descent from the Son of his Brother but he must be charged by special Declaration and so Judgment pro Def. Cro. Car. 151. Hill 4 Car. 1. Jenkes Case Judgment and Execution DET port en Lichfield against the Heir he pleads riens c. the Plaintiff replies Assets but shews not in what place whether within the Jurisdiction Judgment was erroneous yet per Dodderidge If the Jury find the Assets to be deins Jurisdiction its sufficient though not so alledged Q. if Costs and Damages shall be given to the Plaintiff on such Judgment 2 Rolls Rep. p. 48. Brown and Carrington In all Courts he must shew the place of Assets Q. Cro. Jac. 502. id Case Co. Rep. 6.46 Dowdales Case Det vers l'heir pendant le Action another Action was brought against the same Heir upon another Obligation of the Ancestor Judgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Judgment first he for whom the first Judgment was given shall be first satisfied but if the Heir after the first Action brought had aliened and the Plaintiff in the second Action commenced his Suit after such Alienation had obtained Judgment before the first Plaintiff in that case the Plaintiff in the first 〈◊〉 on should be satisfied and he in the second Action not at all Mod. Rep. 253. Anonymus In Det vers l'heir by Bill after riens per dâ—sm pleaded tempore exhibitionis Bills the Defendant excepted at the Trial because the Bill was not shewed and the Plaintiff was non-suit Per Câ— the Bill is confest and need not be shewed 1 Kâ—b p. 793. Rogers and Rogers The Heir shall put in Bail on a Writ of Error per Stat. 16 Car. 2. c. 2 Keb. 320. Coâ—ber and Walton Det vers tres Co-heirs two confess Assets the other pleads to Issue and is non-suited it s a Non-suit against them all though the two have confest and so the Plaintiff lost his Debt there being â—n Alienation before a new Original Siderfin p. 378 Blacks Case He ought to confess the Assets that truly descend to him otherwise his own Land shall be charged with the Debt Plow 440. Pepyes Case Dyer â— Henninghams Case Dyer 344. Qu. if upon â—il dicit or non sum informatus Judgment shall be general but in Sc. fac sur Recognizance of the Ancestor against the Heir he pleads riens per descent which is false here Judgment shall be special for he is not charged as Heir but as Terre-Tenant at the end of Popham 1 Car. B. R. 153. Bowyer and Ricots After Imparlance one is estopt to say that he is not Heir being charged in Debt as Son and Heir so to say he is a Bastard 35 H. 6. 36 37. The Heir pleads riens per descent besides one Acre if the Plaintiff please he may have Execution of that one Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land only and not of his Person Where the Heir pleads he hath nothing by descent generally and it s found against him the Land and all other Land that he hath and his Body are â—iable to judgment by Ca. sa Fi. fat or Elegit â—1 Brownl Rep. 254. Qu. what difference between a false Plea and nil dicit 2 Keb. 343. Riens per descent after the death of the Ancestor Prist Such Issue shall be good in a Formedon for if he have Assets at any time he shall be charged and barred of his Formedon intirely in this Case it must be riens jour de brevâ— purchase nec unâ—pâ—is 10 H. 7.8 b. In Det vers 4 Co-heirs on several Issues on riens per descent Assets was found as to one only Judgment given against her that had Assets quod reâ—uperes debitum damâ— sua generally 〈◊〉 de hunis propriis 2 Keb. p. 588. Cary and Brickmâ—r versus Lock On nil dicit the Heirs own Lands and Goods shall be charged i. e. a general Judgment The Heir pleads Lands set out for Portions besides a Reversion of which he hath nothing replies a third part descended Judgment special 1 Keb. 156. Cudmoâ— and Lâ—wis Judgment against the Heir upon nil dicit shall be general and shall extend to his own Lands as well as to those which specially descend Poph. 154. Bowyers Case Mâ—or n. 657. Barâ—r and Borâ—e Capias lies too against the Heir in Case of a false Plea 2 Leon. p. 11. Sir John Lyons Case The Defendant confesseth he hath a seck Reversion beyond which he had no Assets the Plaintiff said he had ouster and were at Issue the Plaintiff comes and prays leave to wave this Issue and to have Judgment of the Reversion quod fuit concessum quando accideret 1 Rolls Rep. 57. Anonymus The Jury find the Defendant had divers Lands in Fee by descent and shews not what yet Judgment good for upon his false Plea Judgment shall be given generally against him if he have any Assets and so the quantity of the Assets is not material but otherwise in Case of Executors for there they must find the value of the Assets for he must there recover according to the Assets found 1 Rolls Rep. 234. Evet and Sucliff M. 13 Jac. 1. B.R. The Judgment and Execution shall be general unless the Heir acknowledgeth the Action and shews that he hath so much by descent Cro. M. 41 and 42 El. 692. Barker and Bourne If the Heir pleads riens per descent and it be a faux Plea it shall be a general Judgment against him and no Writ of Enquiry need to be to enquire what Lands he hath and need have no special Judgment for the Judgment ought to be that the Defendants Body and Goods shall be liable and half his Lands Stiles p. 287 288. Allery and Holden If the Jury find he hath Lands by descent and name them and Judgment accordingly its erroneous Stiles p. 327. Subgrave and Bosvil Cro. Jac. p. 236. Molineux Case Armourer versus Willis 2 Keb. 642 643 667 719. What Bail the Heir shall put in 3 Keb. 803. Lawrence and Blith Bonds of Arbitrament I Shall not here run into the Learning of Awards which is a curious and large Title in our Law and of which Mr. March hath composed a very Methodical Treatise but take notice of some few select Cases which respect the Nature of such
was If Tenant in Tail of the Mannor of D. be bound in a Recognizance to J. S. which Recognizance after comes to the King by the Attaindâ— of J. S. of High-Treason and after Tenant in Tail dies and the Issue in Tail alien the Lands bona fide whether the King may extend the Lands in the Hands of the Alience It was resolved That if Tenant in Tail become indebted to the King by Judgment Recognizance Obligation or other Specialty and dies before any Process or Extent and the Issue in Tail alien the Land bona fide this Land shall not be extended by force of this Statute And also that in this Case in as much as the Debt was originally due to a Subject it is not within the Act to charge the Lands in the possession or seisin of the Heir in Tail or of his Alience for this Act extends only to Debts immediately due to the King originally and not to those which accrew to him by way of Assignment Outlawry Attainder Forfeiture Gift of the Party or any other collateral way 7 Rep. 21. Lord Andersons Case The Statute of 7 Jac. makes Assignments of Debts void other than such as grow originally to the Kings Debtor bona fide it restrains Assignments of Debts which are not due to the Debtors themselves but assigned to or by them to other Persons The purport of this Law was That no Debtor of the Kings should procure another Mans Debt to be assigned which was a common practice but a Man may assign his own Debt tho not to his own Use for what he may himself release and discharge by the same Reason he may assign as B. was bound to C. in a Stat. of 2000 l. C. dies Intestate his Wife administers and marries F. F. with others became bound to the King in 6000 l. F. and his Wife by Deed enrolled in Cur. Ward assign the Statute to the King by payment of the 6000 l. the Assignment was good Hob. p. 253. Brediman and Coles Cro. Hill 16 Jac. p. 524. id Case A Duty which is not naturally a Debt but by circumstance only as Debt upon Bond for performance of Covenants or to save harmless may be assigned over to the King for Debt yet a present Extent shall not issue but a Scire Fac. 2 Leon. p. 55. Beaumounts Case Debt against one as Executor and upon fully administred pleaded it was found pro Quer. who assigned the same to the King 2 Leon. p. 67. Noons Case M. indebted to S. by a Note in writing per me but not sealed such a Debt may be assigned to the Queen 3 Leon. 234. March An Obligation may be assigned to the King sans Deed enrolled 3 Leon. p. 234. South and Marsh 21 H. 7.19 Where the King sues for a Debt assigned to him the Obligor cannot plead nil debet for by the Assignment it s become matter of Record ibid. An Obligation forfeited to the King by the Statute 28 Eliz. c. 8.1 Q. if the King may grant before Seisure 2. There are two Obligees and one forfeits Q. if the King shall have all the Bond 1 Rolls Rep. p. 7 12. Jac. B. R. Cullan and Bets. In Assignment of a Bond to the King the â—ead shall only be liable from the time of the Assignment but in Assignment of a Recognizance or Statute the King shall have the Land at the time of the Judgment rendred Lit. Rep. p. 125. Roy versus Hanton By the grant of bona catalla an Obligation passeth i. e. Paper and Wax yet the Grantee may not have Action upon this for that is not transferable Lit. Rep. 87. Dyer 25 H. 8.5 If a Debt be assigned to the King in this Case no priority of Execution 1 Brownl 37. A Condition to save harmless for assigning a Bond vide the Form Bridgmans Presidens Clark was indebted to A. by Bond and after delivers to Andrews certain Hogsheads of Wine to satisfie the said Debt and afterward Clarks Obligation is assigned to the Queen for A's Debt Per Cur. the property of the Goods by the delivery of them to Andrews before the Assignment was altered 2 Leon. 89. Bridget Clarks Case A. was indebted to B. who was indebted to the Queen B. assigned his Debt to the Queen by all the Barons Process shall be awarded out of the Exchequer to enquire what Goods A. had at the time of the Assignment and not what he had tempore scripti praedict fact 3 Leon. 196. Obligation Of Creditors in respect of Statute of Bankrupts and Assignments OSborn and Bradshaw were Sureties pro Churchman and had Counterbonds to save harmless the Sureties paid the Mony and afterwards Churchman became a Bankrupt Resolved that they were Creditors within the Statute 13 Eliz. Cro. Jac. 127. Osburn versus Churchman If an Obligation be taken in the Name of another to the use of a Bankrupt the Commissioners may well assign that unless the other party hath of his own Mony satisfied Debts due by the Bankrupt Noy p. 142. Caâ—â—hman's Case Debt sur Obligation assigned by Commissioners of Bankrupts and doth not shew the Obligation he need not because he comes in by act of Law and hath no means to obtain the Obligation As Tenant per Statute Merchant or Dower shall have advantage of a Rent Charge sans shewing the Deed. Cro. Jac. p. â—9 Gray and Fâ—â—lder R. is indebted to S. and B. joyntly S. becomes a Bankrupt and the Commissioners assign the Obligation to B. Q. 1 Keb. p. 167. Roylston and Ratcliff If I am bound to J. S. and he before Bankrupcy assigns the Bond this is liable to the after Bankrupcy of J. S. being only suable in his Name 2 Keb. 331. Backwell versus Litcott In Debt sur Bond the Defendant pleads before Action brought the Plaintiff became a Banrupt Per Cur. it 's an ill Plea and until an Assignment made the Debtor is defenceless and payment before Commission sued out is good enough and so it is before his Debt be assigned 3 Keb. 316. Andrews and Spicer In Debt sur Obligat the Defendant pleads that it was in trust for Holt who was a Bankrupt virtute Commission ' c. this Debt was assigned to Ashly and Penning aliis Creditoribus The Plaintiff replies It was not assigned The Defendant demurs specially for doubleness The Court conceived the Bankrupcy traversable as well as the Assignment yet the Issue is well enough 3 Keb. 737. Jones and Bolton Condition to give account to the Creditors c. 1 Keb. 815 843. Selby versus Walker The Disposition by Commissioners of Bankrupts saves the forfeiture of the Obligation 2 Keb. 202. in Robin's Case I shall here subjoyn some things respecting Matters of Tort as Forgery Detinue c. of Obligations Forgery IF a Man forge a Bond in my Name I can have no Action of the Case yet but if I am sued I may tho' I may avoid it by Plea But if it were a Recognizance or Fine I shall
211. To pay the Mony Fidel. 18. Cl. Man 3â—4 326. A Counter-Condition for performance of Covenants 1 Cl. guide 200. A Counter-Condition to save harmless from two Obligations Id. 230. A Condition to save harmless a Surety from a Bond of Arbitrement Id. 204. A Condition to save harmless a Surety from a Recognizance 3 Cl. guide 61. Condition of an Arbitration Bond. WIthout an Umpire Fidel. 19. Compl. Cl. 323. Cl. guide 1 part 223 232. To Arbitrators if not to an Umpire Idem 267. Covenant Bonds A Condition for the performance of one particular Covenant in an Indenture Fidel. 23. For Performance generally Id. 24. Compl. Clerk 328. A Condition to perform Covenants in a Lease and not to seek for a new Lease from the Chief Lord 2 Cl. guide 75. Conditions Special About Lands THat a man and his Wife at the next Copyhold-Court shall surrender and release their Interest Fidel. 21. If Mony be not paid at a Day then to surrender 1 Cl. guide 293. Bridg. Con. 190 233 234 236 265 378. For the making of better Assurance Fidel. 21. For quiet Enjoyment 1 Cl. G. 160. A Condition where a man hath purchased Lands which he intendeth shall be for the Joynture of his Wife that his Wife shall enjoy the same and that they be free from Incumbrances and that the Premisses shall be worth 60 l. per Annum â—ide 22. A Condition that where the Obligor hath sold to the Obligee three Acres which is in Lease for Ten years that the Obligor shall pay 30 s. to the Obligee yearly during the term Id. 23. A Condition that one shall enjoy a Parsonage-House c. free from Tithes and other Incumbrances Id. 26. That the Premisses shall continue free from Incumbrances done by him and that he and his Wife shall do further Assurance Fidel. 27. A Condition where two Brothers are joyntly seized of Lands that if one make a bargain for the sale of the Premisses and that the other shall receive 50 l. for his part that the other will joyn in the Assurance Id. ib. A Condition that whereas Lands are mortgaged that the Mortgageors are seised c. and that the Premisses shall be free from Incumbrances and to do further assurance if the Mony be not paid according to the Proviso Id. 38. A Condition upon Marriage to make a Joynture of 10 l. per Annum to his Wife within one year after Marriage or at his death free of Incumbrances Id. 29. That a man shall within two years assure Lands of 30 l. per Annum for his Wives Joynture or if he die before the time that then his Executors shall do the same or else the Executors shall within ten days after the death of the Obligor enter Bond with Sureties to the Wife for payment of 50 l. within one year after the death of the first Obligor Id. 32. For yielding up a possession Campl Cl. 316. That the Father shall not sell his Land from his eldest Son Id. 308. For the Truth of an hired Servant Compleat Clerk 317. To deliver Possession Id. ibid. That if the Conisors of a Fine being within Age shall reverse the Fine then to repay the marriage Mony Id. 318. That Land shall remain to the Obligors eldest Son Id. 329. That two shall make a Lease to two or three Tenants Id. 330. That a man shall not alien his House but to the Obligee he paying such a sum of Mony Id. ib. To deliver possession of an House Id. 321. To save Land from Incumbrances c. Id. 323. For enjoying of Land for a term Id. 324. To make an Estate in Land Id. 329. To deliver Evidence and perform Covenants upon payment of a sum of Mony to the Obligor Id. 332. For default of payment of Mony at a day to enter upon and hold a Field for certain years Id. 333. For payment of Rent and not committing Waste Id. ibid. To make an Estate in Feesimple by a day Id. 334. Not to claim Dower Id. ib. 2 Cl. g. 91. A Condition to make assurance of Lands upon Request 1 Cl. guide 158 161. To pay all such charges as the Tenant shall be at by reason of the payment of his Rent there being Controversie concerning the Title of the House Id. 226. A Condition for the surrender of Copyhold-Lands and to cause the Obligor to be admitted Tenant 1 Clerks Guide 159. For quiet enjoying a Manor according to assignment Id. 229. A Condition for passing a Fine Id. 160. That one shall not demise or alien sans Consent Id. 188. A Condition not to do any act to prejudice the Estate of the Obligor in a Lease Id. 193. A Condition to pay Rent during a Lease Parol and at the end to depart leaving the Goods and Housholdstuff mentioned c. Id. ib. A Condition where the Seller is bound that the Land is free from Incumbrances Id. 229. A Condition for renewing a Lease when the Lessor comes to the Age of 21 years 2 Cl. guide 96. A Condition to gather Rents and yield account thereof Id. 82. A Condition to make true account of ones Bayliffship Id. 84. To pay a sum of Mony within three days after Request if the Obligee may not enjoy a Mesuage Id. 85. Conditions reciting an absolute Bargain and Sale made to one for the indempnity of a Bond if the Mony be paid on the Bond the Grantee to reassure Id. 149. Conditions reciting the Surrender of Lands upon Condition that if the Mony be not paid according to the Condition the Obligee may enjoy the Lands 2 Cl. guide 141. Conditions reciting the release of an Annuity that it is free from former engagements Id. 152. To pay Rent Quarterly for certain Rooms Id. 155. To surrender Lands to uses Id. ib. A Condition to permit the Obligee to receive Rents c. to his own use and not to discharge a former Agreement made between A. W. of the one part and the Obligor and Obligee of the other part Id. 163. To assure the moiety of such Lands as shall be recovered by Law Id. 165. A Condition not to sell Lands had in Marriage 3 Cl. guide 307. A Condition that the Lessee shall not carry away the Wainscot or Cupboards c. Id. 310. Cl. Vade mecum 386. A Condition to pay Rent reserved on a Lease according to the Covenant 3 Cl. guide 161. Conditions to settle fettle Lands of such a value Bridgman's Convey 227. Conditions to free the Lands from all Incumbrances by a prefix'd time Id. 11. Conditions to Seal a Lease by a day according to a draught thereof already made Cl. Vade mec 398. To procure Lands to be passed in Fee-simple from his Majesty and the Patentee to convey it to the Obligee by a Day he then paying the Patentee a sum of Mony Cl. Vade mecum 399. Conditions to enjoy Lands discharged of Rents Hern. 308. Conditions that the Heir shall make no claim 2 Cl. guide 238. To assure a Sum of
shall be said parcel of the Condition and what not 43 Conditions against Common Law 45 46 Against Statute Law as Against Stat. 32 H. 8. Of Leases made to Alien Artificers 50 Against Stat. 5 E. 6. c. 16. Of buying Offices 51 Against Stat. 16 Car. 2. Of Gaming 53 Against Stat. 31 Eliz. cap. 6. Of Simony 54 Against Stat. 13 Eliz. c. 20. 14 Eliz. c. 11. Of Non-Residence 58 Against Statutes of Usury 59 60 61 62 Against Stat. 23 H. 6. cap. 10. Of Sheriffs Bonds Vid. tit Statutes 67 Of Conditions Repugnant 90 Of Conditions impossible 92 93 Of Conditions insensible and uncertain 100 Conditions copulative ibid. Conditions disjunctive105 Exposition of Conditions About payment of Mony 110 Persons to whom payment to be made or performance done ibid. What persons are to pay or do a thing by the Condition 112 Of payment of Mony by the Condition of a Bond in general ibid. In what Cases a collateral thing may be given in satisfaction of a Condition or payment of other things in lieu of Mony 113 Time of payment or performance where time is limited 116 Where no time is limited 124 During the Lives of the Parties 125 On Request ibid. Place of payment or performance where a place is limited 127 Where no place is limited 128 Particular Conditions and their Expositions Of Conditions to pay Mony on Marriage 131 Of Conditions to pay Mony concerning Children and Bastards 132 Conditions to pay Mony upon Proof 133 Special Conditions to pay Mony on Contracts Agreements c. and of Pleadings thereon 133 Conditions to pay Mony on Warning 137 To pay Mony at several days 138 To pay Mony on a Voyage and Pleadings thereon 139 To pay Mony yearly during Life 140 To perform Covenants generally 141 To perform Covenants where some are void and some are good 45 A Condition to do a thing which is malum in se 46 Of Breaches of Covenant Bonds and Pleadings 149 Disability of the Obligor to perform the Condition 155 Conditions to perform particular Covenants To make Assurance 159 At whose Cost 161 For quiet Enjoyment 169 To acknowledge a Fine 184 To pay Rent 115 189 On Covenants on a void Lease or void Covenants 175 195 On Covenants in a Mortgage 196 On Covenants for Reparations 197 Pleadings on Covenant Bonds 199 Variance ibid. Release pleaded to Bonds of Covenants 202 Issue Tryal on Bonds of Covenants 205 Conditons to save harmless 207 Of Counterbonds 215 Condition to permit an act or thing suffer 175 221 Conditions to surrender Copyhold 223 To satisfie embezilled Goods 224 To enjoy Offices ibid. To procure Office Place or Benefice 225 To procure deliver and execute Writings 226 To deliver Possession 228 Conditions concerning Wives 229 Condition to accept a Lease 232 To appear at a place ibid. Not to alien 234 Not to continue a Suit ibid. To convey Lands upon Marriage235 To perform a Promise ibid. To do things belonging to a Trade 236 To deliver Goods or pay the value ibid. To reap and carry Corn over the usual way 237 To give an Account ibid. Conditions concerning Wills and Legacies 238 General Rules of Expositions and Constructions of Conditions and what shall be said a good performance 240 According to the very Words and Circumstances 241 Of being performed in substance ibid. And that exactly and not in shew 242 Improper Words shall not vitiate a Condition242 No intention of the Parties to be construed against the express words 243 Conditions construed according to the intent 243 253 If it may constare 236 When a Man is bound to do or permit a thing he ought to do and permit all which depends upon this in the performance of the thing 246 A Condition to be performed as near as may be 247 In many Cases endeavour shall excuse ibid. If there be an indifferent construction which may be taken two ways that way shall be taken to make the Obligation stand 248 A Man shall be supposed by the Condition to do what properly belongs to him ibid. One may be said to forfeit a Bond if he do what in him lies to break the Condition ibid. Where a Condion of an Obligation shall be expounded by a matter dehors 249 Expositions of Words Sentences and References in Conditions 259 As During the Time ibid. As Debito modo 173 As Being reasonably required 251 As Then living ibid. As At all times 125 As Payments ibid. As Acres 168 As Either 252 As Until he be advanced 120 As Bearing date ibid. As Defend 170 As Miles 252 As Assigns 110 As Them 181 As And also 186 As Then to be void 245 Condition void and the Obligation single 90 91 92 93 Conditions Copulative 100 If it be not set down in the Condition who shall do a thing if the Obligee have more skill he shall do it if the Obligor he shall do it 112 136 To do a thing as Counsel shall advise 126 c. 157 158 167 To pay Mony concerning Children 132 Difference between Conditions affirmative and negative as to Pleading 142 143 147 Bonds of Covenants Vid. supra At whose Costs Assurances to be made 161 Covenants special specially to be answered to 200 What things will excuse the performance of a Condition 353 Actions on Bond brought by a Corporation 355 Where a Recital in a Condition shall be an Estoppel 384 Difference where the Condition is to pay a Sum of Mony and where to do a Collateral Act 6 Concord pleaded in Bar 406 Costs upon Verdict 465 In what cases discharge of part of the Condition shall be a discharge of the whole 479 Conditions to convey Lands Vid. tit Assurance D. COsts and damages on a Verdict 465 Damnification Vid. Pleadings on Bonds to save harmless 216 Date of Obligations 20 Of Declarations on Bonds In respect of place 369 In respect of time 370 Form of the Declaration ibid. Declarations for outlandish Mony 375 Variance between the Original and the Declaration 376 Variance in the Sum ibid. Variance in the Names and Additions 378 Variance in time of Payment and Entry 380 Declarations against the Heir 297 Declarations on Statutes Recognisances 262 Of Defeasances 28 The Notion of a Defeasance 287 Difference between a Condition precedent and a Defeasance 136 What amounts to a Defeasance and what not 289 Demand actual where necessary or not 29 30 Delivering of Obligations 22 Detinue of Obligations 346 Conditions to deliver Writings 226 To deliver Possession 288 To deliver Goods or pay the Value 236 Disability of the Obligor to perform the Condition 155 Of disjunctive Conditions 101 Obligations void per Duress 107 E. EXception in a Conveyance where void 295 Where the Obligor hath Election and where the Obligee in disjunctive Conditions 103 115 Condition for quiet Enjoyment 169 Deed delivered as an Escrow 24 439 Error 272 282 What things will excuse the performance of a Condition 353 Estoppel and Pleadings Recital in Conditions 201 441 Exposition des parols 110 250
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
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
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
his Election to accept the Estate tendred or the Mony and there cannot be an acceptance but where there is a tender on the other part Therefore the Conisor ought to have devised the Estate and procured the Conisee to accept thereof otherwise he ought to pay the Mony Crook Eliz. p. 718. Mills and Wood. A Covenant to make a Lease on such Covenants as the Plaintiff or his Counsel shall advise the Plaintiff must tender the Lease 3 Keble 183. Twiford and Buckly The Covenant is to make a Lease for three Lives before Michaelmas the Defendant pleads that none of the Lives were named by the Plaintiff The Plaintiff demurs Judgment was for the Defendant the Plaintiff must name them 3 Keble 183 203. Twiford and Buckly The Defendant pleads the Condition was if the Defendant make an Estate to the Plaintiff of certain Land before such a day in Fee by Feoffment Fine or otherwise as his Counsel learned in the Law shall advise The Plea was Concilium non dedit advisamentum The Defendant is not bound to request his Counsel to make advice and the advisement doth not come on the part of the Plaintiff but on the part of the Defendant This is not like the Case of Obligors being bound to pay to the Obligee 10 l. or enfeoff him of the Mannor of S. he ought to make tender of the Monies and in the other Case he oughâ— to tender that he will make a Feoffment because all comes from the Defendant 6 H. 7.4 as in this Case The Plaintiff replies J. S. was of his Counsel and no more and he made such advice which advisement the Plaintiff notified to the Defendant so it is good ibid. If I am bound to make you such an assurance as J. S. shall devise I am bound at my peril to procure notice but if I am bounden to make such assurance as your Counsel shall advise there notice ought to be given to me 1 Leon. p. 105. Case 141. in Atkinsons Case A Condition to perform Covenants Breach assigned whereas the Covenantor covenanted with the Covenantee that he at the costs of the Covenantee would assure such Lands unto him before such a day that the day was past and no assurance tendred by the Covenantor not costs by the Covenantee Per Cur. the Covenantor is to make the assurance and to give notice what assurance he will make and his readiness that the other may know what Costs to tender Crook Eliz. 517. Hallings and Connard The Covenantor ought to do the first act viz. notifie the Covenantee what manner of Estate he will make so that the Covenantee may know what Sum of Mony to tender and it is all one whether the Covenant be general or particular as to make a Feoffment c. and so if nothing were done before the day the Obligation is forfeited 5 Rep. mesme Case 22. b. The Obligor having election what manner of assurance he will make ought first to give notice to the Obligee that he will make such assurance More n. 595. mesme Case W. covenants for himself his Heirs Executors Administrators and Assigns within seven years upon Request to convey to the Plaintiff a Copyhold Estate for life W. dies a Request must be made to his Executors though W. was seised in Fee the Executors are bound to see it done 2 Bulstr 158. Thursdens Case A Condition to perform Articles one was the Defendant covenanted before such a Feast to make to the Plaintiff and his Wife a Demise of c. Hebendum immediately after the death of E. F. for 30 years if E. W. to this assent then Habend after the death of E. F. for 21 years The Defendant pleads E. W. denied his assent and farther that the Plaintiff did not require the Defendant to make him the Lease for 21 years Demurrer and Judgment pro Quer. For the Plaintiff need not make Request but the Defendant at his peril ought to have made the Lease for 21 years before the Feast 1 Anders n. 124. f. 49. Henry Cage versus Tho. Furtho The Condition is if the Obligor make all reasonable Acts c. which shall be for assurance c. to be required by the Obligee before such a day c. a general Request is sufficient Aliter if the assurance were to be advised by the Obligee or his Counsel there he must shew he had required such a particular assurance as Fine c. and as to this the Case was thus The Condition was if the Defendant before M. do make acknowledg and suffer c. all and every such reasonable Acts and things whatsoever they be for the good and lawful assuring and sure making of the Mannor of D. to J. S. and his Heirs that then c. The Defendant pleads that before M. the Plaintiff rationabiliter non requisivit le def ad faciend c. aliqua rationabilia actum acta quae forent pro bona legitima assurantia del mannor de D. c. The Plaintiff replies that such a day before M. he requested the Defendant quod ipse conveiret assuraret manerium de D. al J. S. c. secundum tenorem conditionis And Issue found pro Quer. Moved in arrest of Judgment that there was no sufficient Breach for that the Plaintiff ought to have required an assurance in certain viz. Fine or Feoffment but per Cur. the Condition is broken for by the Condition the Defendant is to do all and every act whatsoever c. so that if the Plaintiff request a Fine Recovery Feoffment Bargain and Sale the Defendant ought to do all but not to make any Obligation or Recognisance for the enjoying the Mannor for that is but collateral Security and not any Assurance Then when the Plaintiff requests the Defendant to convey the Mannor in the generality the Defendant ought at his peril to do this by some kind of Assurance and if upon this Request the Defendant makes a Feoffment of the Mannor yet if after this the Plaintiff request a Fine he ought to acknowledge a Fine also and so upon every several Request Yelv. p. 44. 1 Brownl p. 84. More n. 889. Pudsey and Newsam The Condition was to make an Estate of Inheritance to the Obligee at such a day and place The Defendant pleads he was ready at the day and place to make it c. The Plaintiff demurs Per Cur. ill Plea he ought to have shewed that he gave notice what Estate of Inheritance he would make him Stiles p. 61. Allen p. 24. Brook and Brook 5 Rep. 22. If a Man be bound to make a Conveyance of certain Lands if a Warranty or Covenant be put into the Deed he is not bound to seal it 1 Rolls Abr. p. 424. sect 13. The Condition is to make such Assurance to the Obligee as the Obligee shall devise and after the Obligee deviseth an Indenture and tenders this to him and he requires time to shew it to his Counsel he must seal
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
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
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
Session pacis in Comitâ— praedict tenend ad stand â—ct in Curia siquis versus cum loqui voluerit de diversis feloniis transgressionibus unde idem R. B. judicatus existit ut dicitur ad respondend dicto Domino Regi de iisdem prout debet dat c. Recognisance of Bail Kanc. ss Memorandum Quo â—quinto die A. D. de c. G. H. de c. J. K. de c. personaliter venerunt coram nobis C. D. E. F. Justiciar dicti Dom. Regis ad pacem suam in Com. suo praedict conservand assignatâ— recogneverunt se deberâ— eidem Dom. Regi modo forma sequen viz. praedict A. B. 20 l. legalis c. uterque praedictorum G. J. 10 l. confiâ—lis â—nita de seperalibus bonis catalliâ— terris tenementis sâ— seperalis fieri le vari ad opus usum dicti Dom. Regis hared successor suorum si defult fieret in performatione conditionis indors Condition for appearance for Felony or suspicion of Felony The Condition of the Recognizance is such That if the within bound A. B. do personally appear before his Majesties Justices of Gaol-delivery at the next general Gaol-delivery to be holden for the within named County of Kent then and there to answer to our Sovereign Lord the KING for and concerning the felonibus taking and stealing of c. or for suspicion of his felonious taking c. wherewithal he standeth charged before c. and to do and receive c. and do not depart the said Court without licence for the same then c. If it be to appear at Sessions say Do personally appear before his Majesties Justices assigned to keep his Peace in the within named County of K. at the next General Sessions of the Peace to be holden for the said County of T. in the County aforesaid then and there to answer c. If the Party thâ— is bound to appear on Surety for the Peace be so sick that he cannot appear the Justices in their discretion have forborn to certifie or record such Forfeiture or Default and that they have taken Sureties for the Peace of some Friends of his present in the Court till the next Sessions If the Husband be bound that he and his Wife shall appear at such a Sessions and that they shall keep the Peace in the mean time c. and at the day the Husband appears alone Qu. if the Recognizance be forfeited A Supplicavit out of Chancery directed to the Sheriff and Justices to bind F. and two others to the Good Behaviour the Sheriff returns that the two non sunt inventi and quoad F. that such a Recognizance was taken before the Justices and that he had broken the Good Behaviour and F. pleaded to Issue in Chancery the Record being sent into the Kings Bench per manus Dom. Cancellaris thereupon a Writ of Nisi Prius issued and found for the Defendant this Recognizance was not well certified into the Chancery for they who take the Recognizance ought to certifie it Cro. Jac. 669. Ford against the King If a Man find Sureties for the Peace before the Justices of the Peace in the County yet if the same Party come in B. R. and there make Oath that he was afraid he shall be hurt by the said Party he may have surety of the Peace there against the Party and a Supersedas to the Justices to discharge the Bond taken before them for the Peace and Behaviour Moor n. 126. Upon motion on Affidavit that he was bound to the Peace for Malice his Recognizance was discharged Stiles p. 364 Sir Tho. Revels Case It s the Course of the Court when any are bouâ—d over to appear in B. R. and in the mean time to keep the Peace or be of Good Behaviour the Cause is to be exprest in the Recognizance also when ever the Court binds any Man to the Peace or Good Behaviour it s always for a year 1 Keble Hill 16 and 17 Car. 2. B. R. Sandford versus Atkinson What is or amounts to a Breach or Forfeiture THE Surety of the Peace is not broken without Affray made or Battery bujusmodi 2 H. 7.2 b. Words which threaten a Battery of the Body may forfeit a Recognizance but not to call one Lyar Drunkard and to say I will make him a poor Kirton Moor n. 378. If he threaten to beat him to his Face it s a Forfeiture or if he threaten in his absence and afterwards lies in wait to beat him Keb. Inst 615. If he that is bound do but command or procure another to break the Peace upon any Man or to do any other unlawful Act against the Peace if it be done it s a Forfeiture of his Recognizance 7 H. 7.34 a. There is a Surety of the Peace and a Surety of the Good Behaviour the Surety of the Peace cannot be broken without some Act as an Affray or Battery or the like but the Surety de bono gestu consisteth chiefly in doing nothing that may be cause of the Breach of the Peace the word Lyar Drunkard c. are not Breaches nor entring his Close nor taking Goods What is a Breach of the Peace is a Breach of the Behaviour riding with War-like Weapons but that is not Law now or in Company with riotous Malefactors Cro. El. 86. k. 4 Inst 180 181. Kings Case In Sc. Fac. upon a Recognizance for the Good Behaviour taken in the Crown Office the Breach is assigned because he assaulted land bâ—t â—ne on the Way and he saith not vi aâ— and for this Cause after Verdict Judgment was stayeth Cro. Jac. 412. The King and Hutchings Scire Facias upon a Recognizance of the Good Behaviour Breach assigned was That he said to a Constable in executing his Office thou art a lying Rascal and to a Woman that she was a Whore and a Jade c. The Defendant pleaded not guilty and found for the Defendant though the manner of speaking may be good cause in discretion to bind one to his Good Behaviour yet one being bound words only which tend not to the Breach of Peace terrifying others or to sedition c. shall not be sufficient cause of Forfeiture Nota In this Case the Witnesses in the behalf of the King did not prove that these words were iâ— disturbance of the Execution of his Office Cro. Car. 498. The King versus Hayward Farther Considerations of Bonds in respect of Assignment Statute of Bankrupt and Forgery c. Assignments of Obligations Vide Creditors as to Statute of Bankrupcy IF a Man assign an Obligation to another for a precedent Debt due by him to the Assignee that is not Maintenance but if he assign it for a Consideration then given by way of Contract this is Maintenance Noy 53. Harvey versus â—man Alit in Case of the King 3 Lion 234. Scoth and Marsh Upon the Statute of 33 H. 8. cap. 39. the Case
De vicineto Civitatis Lincoln ' the Trial is good and it s a Rule where it doth not appear upon the Record that there is a more proper place of Trial than where the Trial was that there the Trial is good but here is not a more proper place and it could not be tryed in the Body of the County because the payment was to be in the City March Rep. 124 Thorndike and Turpington Debt upon an Obligation in London against J. S. of Wakefield in Com' praedicto Conditioned for the payment of 100 l. at Wakefield The Defendant pleads payment at Wakefield aforesaid in Com' Ebor ' The Plaintiff saith Non solvit and so at Issue The Trial was De vicineto de Wakefield in Com' Eborum It was Error because he is named of Wakefield in Com' prad ' which shall be intended London and the payment at Wakefield aforesaid shall be so intended and the words added in Com' Ebor ' are idle Cro. Eliz. 867 Sackvill and Roades Venue THe Margent of the Count is Nott ' and the Count it self contains that the Obligation was made at the Town of Nott ' which is a County it self on Non est factum Venue was of the Town of Nott ' and tryed by a Jury of the County Per Cur ' in arrest of Judgment though the Town of N. be a County of it self yet it may be some part of the Town may be within the County and for that possibility they would not arrest Judgment 2 Brownl p. 165. Browning and Shelly The Plaintiff declared on a Bond made in London The Defendant pleads an Usurious Contract in Staffordshire and the Bond made for the same Contract The Plaintiff replied the Bond was made bond side non pro usura The Issue was tryed in the County of Staff And per Cur ' it was well tryed 1 Leon. pag. 148. Case 206. Kinnersley and Smart The Plaintiff Leased to the Defendant certain Lands in Cambridgshire rendring Rent and the Defendant became bound in a Bond for the payment of the Rent Debt on the Bond is brought in the County of Northampton to which the Defendant pleads payment of the Rent without shewing the place of payment It was tryed per Nisi prius at Northampton and well 2 Leon. 146. Coney and Beveridge's Case Debt brought in London which on Oyer was to perform Covenants which were to enjoy a Walk in a Forest On pleading the Venue was of the Walk though the Venue be ill yet it s aided after Verdict per Stat. 16 â— 17 Car. 2. cap. 8 2 Keb. 212 216. Sterk and Bates Condition was that if he appeared such a day it may be tryed per Pais Cro. Eliz. 131. Hoc and Marshall Debt on a Bond In the Imparlance-Roll the Bond was alledged to be made at Newcastle and in the Issue-Roll it was alledged to be made at York and tryed Error was brought The Court would not grant that the Imparlance-Roll might be amended 1 Brownl Rep. 66. Fetherston and Tapsale A Bill Obligatory to be paid within ten days after J. L. went by five days undivided from London to York and returned from York to London The Defendant pleads that J. L. did not go five days immediately from London to York and return from York to London Issue and Venue was awarded from the Parish of Bow in Warda de Cheape where the Bill was alledged to be made and found pro Quer. Judgment was arrested because it is not alledged to what Parish in London he Returned but to London generally that so a Venue might have been 2. As this case is the Venue must be from London so de corpore Comitatus and not of the Parish where the Bill was made Cro. Jac. 137 150. Normanvile and Pope Debt on Bond Conditioned to pay 20 l. and saith not where The Defendant pleads Solvit ad diem and Verdict and Judgment The Court denied to affirm the Judgment because here is no Venue and so no Trial. This was in Durham on Error brought 2 Keb. 620. Norcliffe and Anderson Condition to pay a Moiety of Charges c. The Defendant pleads Payment and saith not where The Plaintiff demurs because no Venue can be Per Hales no place is here necessary the Pleading being in the Affirmative 2 Keb. 762. Cantor and Hurtnell Condition to be paid at his Mansion house c. this may be paid at any place 3 Bulstr 244. In Debt on Bond Trial in Issue shall not be stayed on infra aetatem but this must be pleaded and the party cannot be aided on Non est factum but a Feme Covert may 3 Keb. p. 228. Cole and Delawne Debt on Bond in Norwich and Cognovit Actionem by custom a Writ of Enquiry was awarded de vero debito and good 3 Keb. 212. Brightman and Parker 251. Rogerson and Jacobson A Man recovers Debt on Bond If A man will bring Action of Debt for the Sum recovered he must lay it in the County of Middlesex and where the Judgment was given which hath made Novationem contractus Hob. p. 196. in Hall and Winkfield's Case Joyning Issue on payment COndition to pay tantas denarionum summas as he should receive by such a day The Defendant pleads payment generally The Plaintiff replies he did not pay 50 l. such a day hoc paretuâ— c. and good for the Defendant must rejoyn and conclude Et hoc petit c. 2 Keb. 230. Tr. 19 Car 2. Hansal and Nurse Condition to pay a lesser sum the 24 of June in such a year The Defendant pleads he paid this praedicto 24 die Junii quod ei solvisse debuit secundum formam effectum Conditionis The Plaintiff replies quod non solvit praedictam summam c. pradicto 14 die Augusti quod ei solvisse debuisset hoc petit c. The Jury find the Defendant non solvit praedicto 14 die Junii And the Plaintiff had Judgment Error assigned because no Issue joyned The Plaintiff ought to have replied quod non solvit praedicto 14 die Junii and not 14 die Augusti Per Cur. its good Had the Plaintiff replied quod non solvit praedicto 14 and omitted August this had been good then the addition of August is idle and surplusage 2 Rols Rep. 135. Halse and Bonithan Condition to pay 10 l. 10 s. The Defendant pleads payment of 10 l. Secundum formam c. upon which Issue and Verdict pro Querente and yet Repleader Awarded Hob. p. 113. Kent and Hall On Colateral Point COndition that the Obligor shall find three men to go with him to Y. and he â—urmiseth they went with the Obligee if the Obligee saith they did not go with him this is no Issue for if one of them fail the Obligation is forfeited 4 H. 7.8 per Vâ—visor Condition If M. W. the Plaintiff doth not depart out of the Service of the Defendant without License of the Defendant nor Marry her self but with his consent then if
Rowel and Roo The Court seemed in doubt tho' the Secondary said it was in mia ' generally Cro. Jac. 420. Ashmore and Ripley Precedents are both ways 2 Keb. 704. Mortlock and Charlton Judgment in Debt where the demand is in the debet detinet is to recover Debt Damages and Costs of Suit and the Defendant in mia ' but if the Defendant denies his Deed then a Capias pro Fine issues out 1 Brownl p. 50. The Earl of L. pleaded non est facium and found against him The Judgment was ideo Capiatur and good tho' he be a Peer of the Realm for a Fine is due to the King and none shall have Priviledge against him Cro. Eliz. 503. Earl of Lincoln against Flower Condition If Henry and Robert H. pay c. The Defendant Robert pleads solvit ad diem and found against him and Judgment pro Querente quod recuperet debitum damna against the said Robert praed ' Henricus in misericordia where it should have been Robert for Henry was no party to the Record this was ore tenus assigned for Error and it being a misprision of the Clerk it was amended Cro. Car. 594. Pelham and Hemming The Defendant confest the Action and it was entred non potest dedicere actionem quis non solvet Per Cur. he having confest the Action the words quin non solvet are not material but surplusage and the Plaintiff had Judgment Cro. Eliz. p. 144. Long and Woodliff The Defendant pleads per minas the Plaintiff saith he did it spontanea voluntate and Traverseth the minas and at the Nisiprius the Defendant cognovit actionem non potest didicere but that he made it at large which is to a Plea per duress But per Cur. in regard it is entred quod cognovit actionem it is not necessary for him to acknowledge the point in Issue and that which comes after the the cognovit actionem is but surplusage Cro. Eliz. p. 840. Brown and Holland Debt against Baron and Feme on Obligation on made to the Wife dum sola On non est factum and found pro Querente Judgment shall be Capiantur for both Cro. Eliz. p. 381. Perey's Case The Plaintiff declares upon a Bill quod reddat ti imum dolium ferri deliberand within such a time and on non est factum pro Querente Judgment was quod Querens recuperet dolium ferri vel valorem ad damna c. and upon this a Writ Issues ad distringend ' the Defendant quod reddat praedictum dolium ferri vel valorem ejusdem si non reddat dolium tunc per Sacramentum inquiratur quantum idem dolium valet And before any return of this Writ of enquiry the Plaintiff takes out a Capias upon the Judgment Its Error 1. because the the Judgment is in the Disjunctive it ought to be quod recuperet dolium ferri si non valorem inde as in detinue for the Plaintiff is not to have Election which he will have 2. The Judgment is not perfect before the Writ returned and so nothing certain to ground a Capias or other Execution on Yelv. p. 71. Paler and Bartlet versus Hardyman In old times after Judgment given in Debt the Obligation was demanded because the Duty was changed into another Nature but since Writs of Error and Attaints have been so frequent the Judges thought it dangerous to Cancel the Deed 6 Rep. 46. Higgins Case Execution IN Scire fac ' on Judgment in Debt upon a Bond Course of the Rings-Bench is never to recite the Term of the Judgment given aliter in the Common-Bench 1 Keb. Tr. 13 Car. 2. fo 104. Hatton and Jackson A Writ of Error is no Supersedeas to stay Execution without Special Sureties to pay the Condemnation Mony Cro. Jac. 350. Goldsmith versus Lady Platt The Action was laid in Comberland in Debt on Bond and Judgment to Recover against Administrator The Plaintiff cannot bring a Scire facias in Westmorland but in the same County where the first Action was laid Hobart p. 4. Musgrove and Wharton Two are bound in an Obligation joyntly and severally and the Obligee Sues one of them in the Common-Pleas and the other in the Kings-Bench and a Capias against him in the Kings-Bench and took him in Execution and after took Elegit against the other and had Lands and Goods delivered in Execution as he might the other who was in Execution by his Body had an Audita Querela and was delivered and because the Judgment in that case must be that he be Discharged of the Execution he shall never be taken again tho' the Land taken in Execution be Evicted Hob. p. 2. Q. tho' in Elegit the pernancy of the profits be Executory yet it s a present Interest and so a Satisfaction 1 Rolls Rep. â— Cowley and Lydiatâ— If Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath Judgment to Recovery a joynt Execution ought to be sued against both But if the Suit were by one Original and several Praecipe's Execution may be sued against any of them 1 Leon. 288. agreed per Cur. 1 Rols Rep. 44. Bâ—nks Case A. and B. are joyntly and severally bound to C. C. took-out a Process against them by several Praecipe's and had two several Judgments and took out two several Executions of one Test viz. Fieri facias against A. and Ca. Sa. against B. Q. if the Writs are well awarded here the Fieri facias was Executed for all and therefore no Ca. Sa. shall Issue out Winch Rep. p. 112. Holts Case If two are bound joyntly and severally to me and I Sue them joyntly I may have a Capias against them both and the death or escape of the one shall not discharge the other But I cannot have a Capias against one and another kind of Execution against the other because tho' they be two several persons yet they make but one Debtor when I Sue them joyntly But if I Sue them severally I may sever them in their kinds of Executions But yet so if once a very Satisfaction is had of one or against the Sheriff upon an escape of one the rest may be releived upon an Audita Querela Hobart p. 59. in Fosters Case One of the Obligors was in Execution by Ca. Sa. and the Sheriff voluntarie permisit ad Lurgum This was pleaded by the other Obligor Judgment pro Querente for the Execution against one is no Bar but that he may Sue the other and tho' he escaped so as the Plaintiff is entitled to an Action against the Sheriff yet that shall not deprive him of his remedy against the other aliter if he had pleaded the Sheriff c. by the License or Command of the Plaintiff Cro. Car. 75. Whittacre and Hamkinson Two are bound joyntly and severally in an Obligation one was Sued and taken in Execution and afterwards the other was Sued and taken
in Execution and afterwards the first escaped and the other brought Audita Quâ—rela it lies not And though the entry be quod Vnica fiat Executio yet that shall be intended to be an Execution with Satisfaction and tho' one dye in Execution yet the taking of the other is lawful And the difference is where one is discharged out of Execution by the act of the party himself to whom he was indebted as by a Release making him Executor c. there it s a discharge of both but not where one is discharged by his own act or the act of a Stranger 5 Rep. 86. b Cro. Eliz. 573. Blomfeilds Case Tho' these words are not entred where two Obligors are Sued by several Pracipes and several Declarations and Jugdments vnica tantum fiat Execution yet it s no Error 1 Rols Rep. 44. Banks and Chamberlain Smith recovered against C. in Debt on Bond 40 l. and 110 l. in another Action and in another Action C. recovers against Smith 100 l. Smith desirous to be out of trouble moved the Court that all shall be defaulted out of his Damages which he had recovered against C. but C. would not consent and because C. was not dwelling in any certain place Chamberlein and Doddrige Order that Smith shall pay his Mony to the Sheriff and the Sheriff to bring it into Court to remain there so that Smith might have his Execution as well against C. as C. against him 2 Rols Rep. 327. Smithson and Cage Where and by what means an Obligation is good in its Creation may be defeated gone extinct or discharged by matter ex post facto in deed or Law By Concord or Agreement Vid. supra By Defeasance Vid. tit Defeasance By Release in Fait Vid. titulo Pleading Releases By Release in Law IF a Feme Obligee takes the Obligor or one of the Obligors to Husband it s a Release in Law of the Debt but if Feme Executrix takes the Debtor to Husband it s no Release in Law but only suspended during the Coverture For otherwise it might be a Devastavit which is a wrong the Law will not suffer 8 Rep. 136. Sir John Needhams Case Cro. Litt. 264. b. If there are two Women Obligees and one of them take the Obligor to Husband it s a good Release in Law Co. Litt. 264. b. If the Obligee make the Obligor or one of the Obligors his Executors it s a Release in Law of the Debt yet it is not absolutely a Discharge of the Debt for the Debt remains as Assets in the Hands of the Debtor Executor and is quasi a Release in Law because he cannot be Sued but it s a meer suspension of the Action But where Feme Debtee takes Debtor to Husband or a Man Debtee takes the Debtor to Wife this is a Release in Law for ever and personal Actions once suspended are ever suspended But when the Obligee makes the Executor of one of the Obligors who is chargable to that Debt his Executor it s not a Release in Law of that Debt for he hath nothing thereby in his own Right but is only to use an Action in Right of another Cro. Car. 372. Dorchester and Web. The granting of Letters of Administration to one or more of the Obligors is no Discharge of the Obligation or if the Obligor make the Obligee his Executor it s no Discharge 8 Rep. 136. Sir John Needhams Case 1 Keb. 313. Locker and Smith When it s said if once suspended ever suspended that is meant where the Action is suspended by the act of the Obligee Obligee makes the Wife of one of the Obligors Executrix and dies the Action is suspended and extinct The Release and Discharge in Law of one Obligor Dischargeth the other Hob. p. 10. Fryer and Guildridge If Obligee makes the Obligor Executor this is a Release in Law of the Action but the Duty remains for which the Executor may retain so much Goods of the Testator Co. Litt. 264. b. In what Cases Extinguishment or Discharge of part of the Condition shall be a Discharge of the whole IF a Man be bound to Build an House and the Obligee Discharge him of part it s a Discharge of the whole 4 H. 7.6 b. So if a Man be bound to go with A. B. and C. and the Obligee Discharge him of C. he is Discharged by this to go with A. and B. the Condition is entire ibid. If the words consist of two parts in the Disjunctive c. and both are possible at the time of the making and before the time of performance one of the things becomes impossible to be done by the act of God of the Law or of the Obligee in such case the Obligation is discharged for ever Vid. supra sub titulo Disjunctive Conditions and Tender and Refusal If the Condition be in Advantage of the Obligor there if be discharged of part he shall do the remainder As one is bound to Till all my Land in D. and I discharge him of parcel he shall do the remaining but if I let 20 Acres to a man rendring Rent and after an Obligation is made for payment of it if Obligee enter into parcel the Obligation is dissolved in the whole for all this is in Advantage of the Obligee 4 H. 7. b. If the Obligation depends upon some other Deed and that the Deed becomes void in this case the Obligation is become void also as Bond conditioned for performance of Covenants in an Indenture and afterwards the Covenants are discharged or become void by this means the Obligation is discharged for ever So Condition to pay Rent on a Lease pur Ans and the Lâ—â—see is evicted by Eigne Title whereby the Rent in Law is gone the Obligation is gone also but aliter if Eviction be of part of the Land Vid. supra Bond void by Interlineation Vid. supra sub titulo non est factun 2 Balst 247. 11 Rep. 27. 1 Rols p. 39 40. Cro. El. 626. By breaking off one of the Seals Vid. supra sub titulo non est factum By Rasure Vid. supra tit non est factum 1 Leon. 182. Discharged by Act of Oblivion DIscharge of part is a discharge of the whole 2 Keb. p. 788. Vere and Langley against Cumbden c. If a Deed be delivered to be Cancelled to the party himself yet if it be not Cancelled and the other gets it again it remains a good Deed Cro. 38. Eliz. Trin. Cross and Powel A TABLE OF REFERENCES TO All the Approved Presidents of Declarations Pleadings c. that are Extant concerning the Obligations and Conditions digested under their proper Titles Narrationes in Debito Sur Bill SUper Bill Penal payable sur demand Modus Intr. p. 169. Sur Single Bill 1 Browne 81. Sur Bill versus 2. Clark's Manual 213. Sur Bill sine Penalitate Cl. Man 201. Sur 2 Bills Penal Hern. pled p. 300. Sur Bill Penal sine die solutionis Tompson p. 118. Sur
Mony in lieu of a Joynture 3 Cl. g. 308. To save harmless where one attorns Tenant with a Covenant to grant a Lease when the Premisses are setled in the Obligee Id. 157. To procure a Lease for years in consideration of a Sum of Mony given Cl. V. m. 387. To repay mony on misliking of a Bargain Id. 396. Other Special Conditions TO maintain one for life Fidel. 24. If a mans Wife shall out-live her Husband not having Issue of her Body and that the Husband shall have received 300 l. her Portion that the Wife shall make her Will of 100 l. and that the Executor of the Baron shall pay it according to the Will Id. 25. A Condition that one nor his Family shall become chargeable to a Town Id. 26. Sh. Presid c. 4. Sect. 27. A Condition where a man is to marry a Woman Widow who was Executor to her former Husband that the party which is to marry shall pay 100 l. to one of her Children according to the Will of her former Husband Fidel. 23. A Condition to pay 200 l. within two Months after one shall use the Trade of a Barber Id. 35. That whereas three are bound to J. for several Sums of Mony if any of the Obligors die before the same shall be due that the survivor will upon request become bound with new Sureties for such of the Mony as shall be then due Id. 36. That whereas one as Factor to two men takes Goods to sell and after sale of them doth account with one of the parties and with the Assignee of the other and payeth the Mony remaining of the Sale to the one Partner and to the Assignee of the other who makes several Acquittances to the Factor that they will free him from all Actions c. to be brought against him by the other Id. 37. Cl. Vad. m. 530. 1 Cl. guide 17 186. 2d Part 188. A Condition for an Apprentices Truth and to restore what shall appear on Proof imbezelled Fidel. 30. Shep. Presid cap. 4. sect 17. If the Obligee deliver to the Obligor a true Note of such Mony as he owes for Wares and to whom the same is owing that the Obligors will pay all such Sums Fidel. 33. That whereas one is lawfully assigned Guardian to an Infant by the Commissary for the recovering and receiving of a portion of Goods and hath received of the Register 5 l. Decreed by the Commissary to the Infant that at the age of the Infant the Guardian shall pay to the Infant the 5 l. and shall save and keep harmless the Bishop Commissary and Register Idem 40. A Condition to be entred in Chancery upon the taking out a Commission of Bankrupcy Id. 34. This Bond to be entred in to the Chancellor A Condition that whereas an Administrator hath delived into the hands of the Guardian of an Infant 800 l. that the Infant at her full age shall give an Acquittance to the Admistrator c. Id. 34. Bond from the Creditor to save the Commissioners harmless Id. 171. Condition not to release a Statute Compleat Cl. 314. Not to revoke a Letter of Attorny made by the Obligor Id. ib. Bond for the good Behaviour Id. 315. Not to sue for Lands or Goods Id. 316. Not to claim a Child's part Id. ib. For the Truth of an hired Servant Compleat Clerk 317. For delivery of Wheat Id. 318. That one shall account for and pay the Proceed of Mony lent to Trade with Idem 319. Not to release a Letter of Attorney Id. ibid. That a man shall leave to his Wife at his death so many Goods Id. 320. Not to impeach an Extent Id. ib. To deliver Writings up upon payment of a sum of Mony Id. ib. That the Obligor shall justifie such Actions as the Obligee shall commence Idem 322. That a Bayliff of an Hundred shall duly execute his Office Id. 323. A Condition in case of Divorce or Separation where the man and wives Friends are bound for not intermedling one with another Id. 327. That a Woman Divorced shall not make claim to her Husbands Lands or Goods Id. ibid. To make a General Release Id. 330. To procure a Surety to seal a Bond Idem 331. To redeem a Pawn by a day or lose it Id. 331. For payment of Mony to Orphans Idem 332. To save harmless Shepherds Presid c. 4. sect 17. To keep a Child Id. c. 4. s 17. To make a Joynture Id. ib. To lay out a Marriage-Portion Idem cap. 3. sect 40. To repay part of it if she dye Id. ib. To give Dyet Id. ib. c. 4. s 17. To leave so much to his Wife Idem cap. 3. sect 40. That his Wife shall have leave to make a Will Id. ib. That if he sell her Land he shall buy as much again Id. ib. That if Land be not of such a Value it shall be made up Id. ib. To give so much by his Will Id. ib. To perform a Will Id. c. 3. To procure a Release Id. c. 3. s 39. To keep or breed up a Child Id. c. 3. sect 36 40. A Condition to make an Apprentice free of the City of London at the end of his Apprenticeship 1 Cl. guide 34. A Condition for the Truth of an Apprentice and to restore the value of all such Goods as by Proof shall appear he hath imbezelled Id. 2â—4 A Condition to ackowledge satisfaction on a Judgment 2 Cl. g. 90. A Condition to find one his Dyet by the year 1 Cl. g. 158. A Condition to discharge the Church warden and Parishioners of a Bastard Child 1 Clerks guide 158. To save harmless from a Recognizance taken for ones Appearance Id. 164. To save one harmless for the Bailing of one in two several Actions Id. ib. A Condition concerning Marriage Idem 16. To deliver Hay and Oats at a day Idem 161. from Legacies Id. 189. To justifie all such Actions as shall be commenced by reason of a Letter of Attorny Id. 197. Condition to save harmless from a Letter of Attorny Id. 199. Condition not to molest or sue for any Matter or Cause before past â— Clerks guide 86. To seal a Counter-part by a day Cl. guide 190. To deliver an Obligation by a day Idem 191. Condition where Mony is given by a Will to a Wife and her Children and the Mony being paid by the Executors to the Husband to be employed for their benefit the Husband is bound to employ it well Id. 194. A Condition to save harmless an Executor he not medling with the Executorship Id. 195. A Condition to discharge an Executor from an Orphans Portion in London being received without consent 1 Cl. g. 196. To justifie all such Actions as shall be commenced by reason of the Assignment of a Bill Obligatory Id. 197. â—ondition for the Truth of an hired Servant Id. ib. Condition to discharge Executors from the payment of Legacies to Non-ages Idem 198. To save harmless from a Letter of Attorny Id.
that otherwise his Election shall be taken away by the Act of God and the Condition is for the advantage of the Obligor and shall be taken beneficially for him One was bound that if after Marriage he and his Wife sold the Lands of the Wife if then he did in his Life time purchase to his said Wife and her Heirs Lands of such Value or else do and shall leave to her as Executrix or by Legacy or other good Assurance as much Mony c. He married her and she dyed and he survived her he is excused from the Bond 5 Rep. 22. Laughter's Case Crook Eliz. 398. mesme Case But if a Condition consist of two parts whereof one was not possible at the making of the Condition to be performed he ought to perform the other as if the Condition be to enfeoff J. S. or his Heirs when he comes to such a place he is bound to enfeoff J. S. when he comes for that the other is not possible for he may not have an Heir during his Life and so he had not any Election 21 E. 3.29 cited in Laughter's Case If the Condition of an Obligation be to enfeoff two before such a day and one dies before the day yet he ought to enfeoff the other 1 Rolls Abr. tit Condition p. 451. Horn and May. Vid. contra Expressement Bendl. p. 8. n. 31. Dyer 347. pl. 10.15 H. 7.13 5 Rep. 22 c. If the Condition be to enfeoff J. S. within a certain time if J. S. dies before the time be past the Obligation is discharged 1 Rolls Abr. 451. I am bound to enfeoff the Obligee at such a day and before the said day I dye my Executors shall not be charged with it for the Condition is become impossible by the Act of God for the Land descended to the Heir 2 Leon. p. 155. Kingwel and Chapman 2. By the Act of the Law If a Man be bound in a Recognisance for the appearance of another in a Scire-Fac he shall not avoid this Recognisance by saying that he which ought to appear was imprisoned at the day 1 Rolls Abr. p. 452. 2 Leon. p. 189. Wood and Avery If a Man be obliged to repair an House or build a Mill he is excused if the Obligee will not suffer him to do it or if a Stranger by the Command of the Obligee disturb him and will not suffer him 1 Rolls Abr. 453.3.4.5 A Condition that the Son of the Obligor shall serve the Obligee seven years if he tender the Son and the Obligee refuse it is no Forfeiture 22 E. 4.26 2 E. 4.2 So if he take him and after within the Term command him to go from him Vid. ibid. 1 Rolls Abr. 455. If the thing to be performed by the Condition may not be performed without the presence of the Obligee there his absence shall excuse the performance 12 H. 4.23 b. cited 1 Rolls Abr. 457. As if the Condition be to make a Feoffinent to the Obligee Aliter if it be to enter into a Statute to the Obligee for that may be performed in his absence A Condition to enfeoff the Obligee though the Obligee disseise him of the Land yet this shall not excuse the performance of the Condition for he may re-enter and perform it but if he keep it with force till after the day of performance it shall excuse 1 Rolls Abr. 453 454. Frances's Case 8 Rep. 92. If the Obligor by his own Act hath made the Condition impossible it is a Forfeiture 4 H. 7. 3 4. Vid. Keilway p. 60. Abbot of Glassenbury's Case Where a Refusal of one of the Obligors shall be a Refusal of both Two are bound in a Statute with Defeasance that they two shall make such assurance as shall be devised c. If an Assurance be devised and tendered to one and he refuse to seal this the Condition is broken by both for he need not make Request to both at one time 1 Rolls Abridgâ— 454.13 The Condition is to pay 20 l. to the c. or before such a day render the Body of a Stranger c. so as the Plaintiff may declare against him the Defendant pleads before the day the Stranger died a good Plea though the Obligor undertakes for a third person which differs from Laughter's Case Payment or Tender are to be at the same time therefore a discharge of one a discharge of both Contra if the Acts were to be done at different days The Condition was to run a race or pay by a day and adjudged that the Defendant was discharged by the death of the Horse 3 Keb. 738 761 770. Warner and White If one is bound to pay 20 l. before the 1st day of May or to marry A. S. before the 1st of Aug. if he do not pay the 20 l. before the 1st of May and A. S. dies before August so that it is become impossible yet the Obligation is forselted Quaere He hath undertaken to do one and it was in his power Crook Eliz. p. 864. More 's Case 3. By the Act of the Obligee If A. be bound to B. that J. S. shall marry Jane G. by such a day and before the day B. himself marry with Jane G. hereby the Obligation is discharged and B. shall never take advantage of it Co. Lit. 206. aâ—b If the Obligee be party to an Act that hinders the performance of the Condition it shall excuse 4 H. 7.4 b. One is bound to stand to the award of c. he may countermand the Arbitrators but then he forfeits his Bond because the Obligor by his own Act hath made the Condition of the Obligation which was endorsed for the benefit of the Obligor to save him from the penalty of the Obligation impossible to be performed and by consequence his Obligation is become single and without the benefit or help of any Condition because he hath disabled himself to perform the Condition If one be bound in an Obligation with a Condition that the Obligor shall give leave to the Obligee for the time of seven years to carry Wood c. though he give him leave yet if he countermand it or discharge the Obligee the Obligation is forfeited 8 Rep. 82. b. Viniors Case Refusal at the day shall save the penalty 1 Rolls Abridg. 448. Vid. Tender and Refusal Shep. Touchston p. 393. One is obliged to another to the use of a third person to deliver a Chest to the said third person who refused to receive it upon the tender at day the Obligation is saved it being to the use of the third person and he shall not take advantage of his own act Carne and Savery cited in Huish and Phillip's Case Crook Eliz. 754. A Bond is delivered to J. S. to my use and when it is tendered to me I refuse hereby it is become void and cannot afterwards be made good so if an Obligation be made to my Wife and I disagree to it 5 Rep. 119. Whelpdale's Case