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.
the Court of Requests with a Condition to appear before the Master c. the declaration is general that the Defendant such a year and day by his Obligation did acknowledge himself to be bound to the King in 60 l. to be paid c. and naught because it did not appear to be taken in a Court of Record 1 Brownl p. 68. Rex versus Castle Not to alien A Condition to perform Covenants one was That the Lessee his Executors or Assigns nor any other who shall come to have the Estate or Interest in the Term shall not alien their Estate sans licence of the Lessor but only to his Wife or Children the Lessee deviseth it to his Wife she alieus the Covenant is broken it extends to the Lessee and his Assigns and she is Assignee express so although there was once an Alienation by Licence yet that Assignee cannot alien sans Licence Where a Condition is in a Lease that neither he nor his Assigns should alien without Licence the Lessee died Intestate the Administrator was bound by this Condition Cro. El. 757. Thornil and Adams versus King sa Feme A Condition not to alien without the consent of the Lessor the Lessee makes his Executor and deviseth this to him the Executor enters generally the Testator not being indebted to any this is a Forfeiture 1. Rolls Abr. 429. Dampâ— and Symons Not to continue a Suit A Condition that he shall not continue such a Suit If he continue it by an Attorny it s a Breach alit if the Attorny enters the Continuance without his privity Cro. Jac. 525. Gray and Gray To convey Land upon Marriage THE Condition was That after Marriage of the Plaintiff and having a Son by his Wife that if he conveyed Lands to the 〈◊〉 of â— l. per aâ—n in Tail to the Son to enjoy after the death of the Obligor that then c. the defendant shews the day of the Maâ— and the having of a Son and that he made 〈…〉 to a Stranger to the use of himself 〈…〉 after to the use of the Son in Tail the Plaintiff replies quod non feoffavit the Bar is ill for the Infant was not made party to the Conveyance nor had any Deed to prove his Estate but the Plaintiff by the Replication hath admitted the â—ar to be good and he may traverse the Feoffment or the Uses Cro. Eliz. p. 825. Statfield and Somerset A Condition if the Obligor pay 200 l. by the first of December 1634. that then the Surrenderce should reconvey on request the Plaintiff alledgeth a Request in 1644. the Defendant demurs Per Cur. the Surrender being absolute and in trust only for payment there being no payment at the day this Mortgage is irremediable Judgment pro Defendente 3 Keb. 786. Hancocks Case To perform a Promise A Condition to perform such a Promise made by the Obligor to the Obligee but it not appearing when the breach of Promise was made it was Error Stiles 17. Sanderson and Martin Condition to do things belonging to a Trade A Condition to make all such Linnen as he should want during his living single the Sempstress is not bound to find Linen nor a Tailor Materials the Intent may guide the Contracts contra of a Shoe-maker Gold-smith c. 1 Keble 466. Oates versus Thornel Condition to deliver Goods or pay Value A Condition to deliver all the Tackle of a Ship mentioned in an Inventory under the Hands of four Men or in default thereof to pay so much Mony to the Plaintiff before such a Feast as the four Men should value the Tackle at the Defendant said they did not value the Tackle no Plea for he had election to do two things and if he cannot do the one he is to do the other and it is at his peril to procure the Men to value the Tackle Moor n. 844. More and Morecomb A Condition at the end of the Term of a Lease of Lands and Goods to deliver the said Goods to T. or make him such satisfaction for them as shall be by two indifferent Persons to be elected for review of them thought fit the Defendant pleads two Persons were not elected the Plaintiff replies two were elected the Defendant rejoins that they were not chosen by consent of both for the Defendant conseâ— noâ— to the election Per Cur. the election by the Plaintiff is sufficient for the word indifferent shall be referred to the Parties elected and not to the election of the Parties aliter if it had been by two Persons indifferently to be chosen 2 Rolls Rep. 86. Talbot and Benson 5 Rep. Hungates Case Condition to reap and carry Corn c. over the usual Way A Condition to permit and suffer J. S. quietly to reap and carry c. without any disturbance or interruption of him the Defendant pleads permisit the Plaintiff replies there were some Acres sowen with Rye and shews the certainty and coming to reap he prohibited him saying these words Moneo prohibeo te quod neque metes ibid. neque abcarriabis c. this disturbance is a Breach 1 Anderson n. 188. fol. 137. Bur and Higs Condition to give an Account A Condition for a sub-Collector of the Subsidy to give a sufficient account in the Exchequer of all such Sums he had received and to discharge and save harmless the Plaintiff of these Receipts against the Queen and to procure to the Plaintiff a sufficient Acquittance or Discharge out of the Exchequer as in the like Case is used that then c. the Defendant pleads he had accounted c. and had discharged and saved harmless the Plaintiff c. and had procured Acquittance the Plaintiff demurâ— for he pleads in the affirm actâ—e he had discharged and shews not how 〈◊〉 This being a multiplicity of things if the general pleading be not good Cro. El. p. 253. Actâ— and Hill A Condition to give account of all Monies gathered by vertue of a Brieâ— c. the Defendant pleads he gave account of all such Monies ill Plea he ought to specifie what he had received or else to say he had received nothing 1 Keb. 760. Woodcot versus Cole A Condition to give a just and true account being a Bâ—s Clark the Defendant pleads performance the Plaintiff replies by receipt of 30 l. the Defendant rejoins it was stollen out of the Plaintiffs Count house the Plaintiff demurs the Robbery is a good Bar 2 Keble 761 779 830. Vere and Smith A Condition was to render a full account to the Plaintiff of all such Sums of Mony and Goods which were due and owing to W. N. at the time of his death which shall any ways come to the hands of the Defendant and shall upon such account within the space of one Week when required make an equal dividend of all such Sums of Mony and Goods and pay the Plaintiff his proportion of the same the Defendant pleads no Goods or Sums of Mony came to his
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
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
the Plaintiff demurs Judgment was given for the Plaintiff upon this point Because the Defeasance was pleaded to be made after the Obligation and if it would avoid the Obligation it should be made at the same time quod mirum Sandâ—s 2 Rep. 47. I should rather have conceived the Reason of their Opinion for the Plaintiff to have been for that it was an Obligation with a Condition and the Condition is it self a Defeasance and that a Defeasance upon a Defeasance is improper and confused but qu. â—e â—c ratione B. acknowledges a Statute to S. There was a Defeasance That if his Lands in the County of S. should be extended the Statute should be void Per Cur. the Defeasance is good and not repugnant because it s by another Deed but the Condition of a Bond not to sue the Obligation is void 〈◊〉 n. 1035. Trot and Spurling What amounts to a Defeasance and what not THat the Bond shall not be sued before such a Feast if he be sued it shall be void 21 H. 7. 23 30. The Defendant pleads in Bar That the Plaintiff by his Deed indented after the making of the Obligation grants to the Defendant that he will not prosecute or molest the Defendant by force of the said Obligation before the Feast of c. and demurs Per Cur. it s no Bar but a Covenant and if it were that he will not sue him at all that may be pleaded in Bar to avoid circuity of Action 1 Anderson p. 307. Dowse and Jeoffreys An Obligation from A. of 20 l. to T. B. with Condition if he paid T. B. 40 s. at such a day then it should lose its force and after B. was bound to A. in another Obligation which was indorsed on performance of Conditions specified in an Indenture and after the end of the Conditions endorsed on the last Obligation were these words Provided always that where the said A. is bound to the said B. in a Bond of 20 l. the said B. shall not sue for the Sum comprised in the said Obligation until the Condition specified in the said Indenture mentioned in this present Obligation be performed after A. sued the first Bond and B. pleaded this matter and averred that the Conditions in the Indenture are not yet performed Per Englefield and Shelly This is not a good Plea the Condition to defeat another Obligation is impertinent and the first Obligationâ— had an Indorsement on it which shall serve for the Defeasance of it 26 H. 8. fol. 9. Several Bonds were sealed for the payment of Monies and after by Indenture the Plaintiff did agree with the Defendant that if the Defendant should pay to Elizabeth the Daughter 500 l. and shall perform the other things c. that all the Obligations shall be void and be delivered up its was agreed this was a good Defeasance of the Obligation but for other Faults in the Plea Judgment pro Quer. Bridgmans Rep. 116. Lee and Wood. Memor I William I. do owe and am indebted to E. H. 10 l. for the payment whereof I bind my self c. In witness c. Memor That the said W. I. be not compelled to pay the said 10 l. until he recover 30 l. upon an Obligation against A. B. Per Coke That which comes after in witness is not part of the Deed but shall have its force as a Defeasance but then the Defendant must plead it 2 Brownl Rep. 98. Hammond and Jethro Per Coke A Man without a Defeasance may plead that the Statute was acknowledged for payment of a lesser Sum 1 Brownl 51. in Broksbys Case The Statute was defeasanced on this Condition If R. E. observe perform and accomplish the last Will and Testament of Sir J. E. his Father and pay and content all the Bequests and Legacies according to the true intent and meaning of the said last Will. Sir J. E. deviseth Land in Capite in Fee after his death R. E. enters into a third part of the said Lands by the major-part of the Judges the Statute is not forfeit Jones p. 267. Sir Rowl Egertons Case in Chancery If the Defeasances on a Statute be by Indenture and vary the words of the Defeasance are the Act and Words of the Conusee only and not of any other and if his part of the Indenture vary from that part delivered to the Conusor in that that it varies its utterly void 2 Anderson p. â—8 Hollingsworth and Wheeler Cro. El. 532. Hollingworth and Ascue H. in Aud. Querela upon a Statute surmiseth that there was an Indenture of Defeasance if he paâ— yearly for six years 50 l. to one J. B. at the Feast at St. Michaelmas at such a place c. the Statute should be void and avers that it was to J. B's use and that he tendred at every of the said Feasts 50 l. at the place and that J. B. was not there to receive it Per Cur. 1. Though J. B. was a Stranger to the Recognizance yet forasmuch as it is averred to be made to his use he ought at his peril to be ready at the place every day to receive it otherwise the Recognizance is not forfeit when the other doth tender it 2. Though he saith not nec aliquis alius ex parte sua was there to receive it its good for it ought to come on the other part if any were there to receive it 3. He saith at one of the days he was ready and offered to pay it and J. B. was not there ad exigendâ— recipienil so the copulative made the demand material which needed not yet the surmise was good for the matter is whether he tendred or not Câ—o. Jac. 13 14. Phillips versus Rice ap Hugh Cro. Eliz. 754. vide this Case well reported Yelv. p. 38. by the Name of Hughs and Phillips A Defeasance unless made the same day of a Statute and delivered uno flatu cannot be pleaded in Bar 1 Keb. 111. Sir Rich. Bellison Qu. In the next place I shall shew several sorts of Bonds as a Bond sued against the Heir Arbitrament Bonds Apprentices Bonds Bonds for the Good Behaviour c. Debt on Bond against the Heir HOW an Heir shall be charged on the Obligation of his Father at the end of Popham Jones p. 87 155. Bowyer and Rovil vide Siderfin p. 342. It must be brought in the debet detinet Lach. p. 203. Anonymus The Bill was on the File debet detinet but the Declaration on the Roll was detinet only which could not be amended after Verdict but leave was given to the Court to declare upon the old Bill being within three Terms he may declare because the Debt else had been lost because the Heir after the Bill entred had aliened the Term ibid Debt against an Heir in the detinet only is aided after a Verdict by the Statute 16 and 17 Car. 2. cap. 8. but not otherwise 2 Keble 259 290. Siderfin p. 342. Comber and Waltoe It s
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
there was never any such Trial. Demur ' inde Id. p 337. Bar per Concord COncord pleaded in Bar devant join de payment contenus en le Condition del ' Oblig ' scilicet quod Def. solverer quer ' 30 s. in satisfactione 10 l. in Conditione specificat ' ac etiam de omnibus aliis debitis Transgr ' c. que Quer ' clamaret versus ipsum Super quo Def. postea ante tempus solutionis in Conditione solvit satisfecit quer ' praedict ' 30 s. tam in satisfact ' praedict ' 10 l. in Conditione quam omnium aliorum debitorum c. secundum formam effectum agreamentii illius Et praedict ' quer ' adtunc ibidem accepit recepit praedict ' 30 s. de Deâ— in plena satisfactione inde Repl ' protest ' nul tiel Concord Pro placito quod Def. non solvit quer ' praedict ' 30 s. prour c. Et exitus superinde Brownl Lat. 190. Al bill Penal pro 80 l. Bar quod Def. computasset cum quer ' invent fuit in arrears in 32 l. praeterquam 80 l. Et quod agreat ' fuit quod Def. solveret le tout viz. 112 l. super talem diem Et intraret Recogn ' pro securitate c. Et quod solvit ad diem secundum agreamentum Plaintiff Demur ' generalment Per Cur ' male plea Winch. Ent. 170. Bar by Statutes Bar per Stat. d'Usury BAr al Obligation ove Condition ad solvend ' 33 l. si E. foret superstes tali die si defunct ' tunc 26 l. tantum de 30 l. mutuat ' Co. Ent. p. 168. Quod scriptum factum fuit pro securitate solutionis 30 l. pro doleo Olei empt ' quod Def. potuit emere pro 25 l. in pecuniis numeratis verum pretium inde fuit 25 l. Rejo quod verum pretium fuit 30 l. Traverse quod verum pretlum fuit 25 l. Ra. Ent. 689. Per Stat. 37 H. 8. revived per 13 Eliz. de Usura reformanda ubi Quer ' recepit 50 l. 9 s. 4 d. pro differendo diem solutionis 200 l. 16 s. 8 d. pro quinque mensibus Repl ' quod Obligatio facta fuit super honam Consideration ' Traverse le Usury 1 Browne 201 202. 2 Browne 66 67. Similis bar ' Repl ' quod Obligatio facta fuit pro justo debito Traverse le Usury Def. Demur ' Judic ' pro Quer 1 Browne 202 Brownl Lat. 235 236. Similis bar ' Repl ' quod quer ' gratis accommodavit Traverse le Usury 1 Browne 203. Similis bar ' Repl ' quod quer ' corrupte reservavit sibi 20 s. sur accommodat ' de 7 l. Repl ' quod accommodavit y l. sine consideratione Idib Bar per Stat ' 13 Eliz. contra Usuram 2 Br. 85. 5 Rep. Clayton's Case Bar per Stat. 21 Jac. Tomps 220. Bar per Stat ' de Usury Vidian 205. Repl ' pro justo debito traverse le corrupt agreement Bar per Stat ' de Usury 12 Car. 2. Tomps 146 156 159. Repl ' quod aliter agreat ' fuit quer ' existens illiterat ' cepit scriptum praedict ' ibid. Cl. Man 436. Bar per Stat ' de Usury ubi quer ' accommodavit 20 l. pro uno anno integro cum Condic ' ad solvend ' 24 l. vel tot ' centena de Hemp Rob. Ent. 216 217 218 220 227. Vid. Winch. Ent. 233 297. Per Stat ' 5 E. 6. versus vendant Offices viz. the Office of Undersheriff Brownl Lat. 216 217 218. The Office of Escheator of the County of Wilts Winch. p. 180. Bar per Stat ' 18 Eliâ— de dimissionibus per personas Ecclesiasticas Tomps 213 219. Bar per Stat ' 23 H. 6. pur extorting Fees pluis que sont due Repl ' quod Oblig ' fact ' fuit bona fide traverse le Extortion Rejo per Maintenance del Plea Rob. Ent. 209 210. Bar al Obligation per Stat ' 13 Eliz. de Non-residence Tomps 205 217. Defendant pleads al bill Obligatory that it was made against the Law of the Land in that it tyed him against the lawful use of his Trade Mod. Int. 201. Replie ' Obligation to perform Covenant in an Indenture of Apprenticeship Bâ—r per Stat ' 5 Eliz. that no Merchant shall take Apprentice unless his Father had Lands of 40 s. per annum value and that all Indentures of Covenants for taking Apprentices otherwise shall be voâ—l Liat Brownl 224 225. Rod Ent. 193. Bar per Tender QUod ad diem in Conditione Def. pararus fuit obtulit solvere querenti denarios in Conditione Et quod Quer ' seu aliquis pro eo non venit ibidem ad recipiend ' Repl ' quod Quer ' paratus fuit ad recipiend ' Def. seu aliquis pro eo non fuit paratus ad solvend ' 3 Brownl 176. Placit ' gen ' spec ' 231. Similis bar ' similis Replic ' ove Traverse quod Def. fuit paratus ad solvend ' Ash 220. Condic ' ad deliberand ' Plumbum ad 2 dies Bar quod obtulit ad deliberand ' nullus venit ad recipiend ' Repl ' quod Def. non obtulit ad unum diem Id. 244. Det sur Oblig ' de 20 Marcis Quoad 26 s. 8 d. Def. paratus est solvere ad 18 Marcas residue Bar per 2 Acquittances unde Exitus Et nil dicit ulterius de praedict ' 26 s. 8 d. Re. Ent. 179. Vet. Ent. 202. Ad partem debiti per Obligation Bar per foreign Attachment en London ad residue quod semper fuit paratus profert in Curia Repl ' quod talis die quer ' requisivit denarios quos Def. recusavit solvere Rejo quod tempore requisitionis Def. obtulit solvere quer ' ill ' recusavit Surrejo quod non obtulit Co. Ent. 141. Placit ' al Obligation Condition ' pro solutione Annualis redditus quod Def. fuit paratus ad solvend ' ad separales dies pro solutione inde Repl ' quod non fuit paratus ad unum diem eorundem Tompson 181. Rejo quod non fuit requisitus ad solvend ' Surrejo quod fuit requisitus Bar per acceptance des auters choses DEt versus Executor sur Oblig ' Bar quod ante diem in Conditione Def. solvit querenti 30 s. in satisfactione tam debiti petit ' quam omnium aliarum demand ' a Testatore per agreement c. Repl ' quod quod non solvit in satisfactione 1 Brownl 111. Quod ante diem in Conditione Def. deliberavit dedit Testatori 10 carectatas maremii in satisfactione denar ' in Conditione Repl ' protestando quod non cogn ' aliqua pro placito quod Testator non recepit 10 carect ' maremii in satisfactione debiti 3 Brownl 142. Det sur Bill Bar quod ad diem solutionis Def. deliberavit querenti sex Vaccas in satisfactione debiti quas acceptavit Repl