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
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
not stay to wait for performance perhaps then he may stay as long as he lives but as on Bonds of Abritrament on breach of either Party hath remedy 2 Keble 674. Modern Rep. 64. Siderfin 464. Humlock and Blacklow In Debt for performance of Covenants they must be set out in Latin Allen p. 87. Of Assignment of a Breach on Bonds of Covenant IF Breach be assigned after the Action brought its ill the Defendant demands Oyer of the Obligation and it was for performance of Covenants the Plaintiff replies and assigns a Breach in non-payment of the Rent the 20th day of June 17 Car. and the Bill was filed Trin. 17 Car. which Term ended the 14th of June therefore ill Siderfin 307. Champions Case Bond of Covenants to perform the Indenture of a demise the Plaintiff declares he made the Lease the 28th of May to the Defendant and that postea scil 27th of the same month of May the Defendant broke the Covenant Demur because the breach is set forth before the Lease began and so no cause of Action but by Bacon where the postea scil are repugnant as here they are the postea shall be good to signifie the time of the Covenant broken and the scil shall be void Stiles p. 45. Anonymus If an Obligation conditioned for payment of Mony become payable hanging the Action this had made the Action good otherwise where it is conditioned for performance of Covenants and there is a Breach pendent the Action Q. Siderfin in Champions Case p. 308. The Plaintiff must assign a Breach to intitle himself except in some Cases vide infra on a Bond of Covenants that the Defendant should not deliver possession to any but the Lessor or such Persons as should lawfully recover the Defendant pleaded he did not deliver but to such Persons as lawfully recovered it the Plaintiff demurs Judgment pro Quer. Per Twisden on affirmative Covenants general pleading of performance is sufficient and so on negative for its sufficient for the Defendant to plead an excuse and the Plaintiff must assign a breach to entitle himself 1 Keble 380 413. Nicholas and Pullen One Covenant was That J. B. her Heirs c. should perform Covenants in a Deed Poll whereof one was That if I. died before the Plaintiff had satisfaction on Judgment assigned then the Administrators de bonis non of H. B. should farther secure that Assignment the Defendant pleaded performance generally the Plaintiff replies such a day I. died and sets not forth any Breach Judgment pro Defendente 2 Keble 288 301. Trussâ— and Mading The Plaintiff is not bound to alledge a special Breach when the Defendants Plea contains speciall Matter A Condition to perform Covenants in an Indenture one was That I. the Defendant should permit Guy the Plaintiff from time to time to come and see if the House leased by Guy and K. his Wife were in repair I. pleads in Bar that I. B. and K. his Wife were Tenants in Tail of the House and had Issue that I. B. died K. married Guy the Plaintiff and they two make a Lease to him for 20 years and that W. the Issue in Tail such a day entred before which entry the Condition was not broken Guy replies That William came with him upon the Land to see if Reparations c. and traverses the entry of William in manner and form prout and Issue joined upon the Traverse c. and found pro Quer. and Judgment it was assigned for Error that there was not any breach of Covenant in I. assigned and so had shewn no cause of Action but per Cur he need not in this Case for the special Plea of the Defendant had disabled the Plaintiff that he could not assign any breach of Covenant but of necessity ought to answer to the special Matter alledged It s not like the Case of Arbitrament in Debt on Bond to perform Award the Defendant pleads nul â—iel Award then the Plaintiff in his Replication ought to set forth Award and assign his Breach because the Defendants Plea 〈◊〉 general but if in such Case the Defendant should plead a Release of all Demands after the Arbitrament by which he offers a special point in Issue there it sufficeth if the Plaintiff answer to the Release without assigning any Breach Yelv. p. 78. Hob. cont â— Brownl p 89. Jeffry and Guy 2 Keb. 46 74. â—arch and â—lackaâ— The Condition was That wherâ— Ed. Tailor had bargained c. to the Plaintiff a Close c. and whereas the said Ed. T. hath already â—ort gaged to J. S. divers Lands in G. whereby the said Close is either mortgaged or supposed to be mortgaged c. if therefore the said Close of Pasture at the day mentioned in the said Indenture of a Mortgage be redeemed and set free c. the Defendant pleads the Close was not mortgaged to J. S. sic dicit quod clausum praed c. fuit redempt liberat exonerat c. the Plaintiff replies That the said Close was mortgaged to the said J. S. and upon this Issue joined and found pro Quer. and 't was moved in Arrest of Judgment that the Replication was not good for he ought to have replied quod pignoratum fuit to the said Smith and is not redeemed for it might be redeemed before the day Per Cur. it s a good Replication 1. The Defendant hath offered a particular point in Issue that it was not mortgaged and the Plaintiff answers it when he saith it was mortgaged and need not alledge that it was not redeemed for there shall never be intended any redemption because the Defendant pleads it was not mortgaged as J. S. is bound to marry the Daughter of J. D. upon Easter-day next in Debt on this Obligation if J. S. pleads in Bar that the Daughter of J. D. died before Easter-day it s a good Plea and its a good Replication that the Daughter was living on Easter-day without saying farther that he had not married her because a special Plea in Bar is always answered with a special Replication in the Point alledged 2. Because the Mortgage is supposed to be made between a Stranger and the Defendant to whose Acts of Redemption c. the Plaintiff is not privy and cannot have conusance or notice of theire Acts its excellent Learning which hath made me more at large recite it Yelv. M. 44 and 45 Eliz. R. R. fol. 24. Baily and Tailor Cro. Eliz. p. 899. mesme Case the difference is such pleading after Verdict should be good but not if demurred to as the Condition was the Defendant should render account of all such Goods of A. as came to his hands or pay his part for them The Defendant pleads nothing came to his hands The Plaintiff replies a silver Bowl came to hands Demurrer Ill Replication for he should have said and had not paid for it Siderfin 340. 1 Keb. 275. Hayman and Gerrard Though in Obligations put in Suit for
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 been delivery to both 2 The two Bargaâ—es need not give notice to the Defendant that they had the Reversion by Bargain and Sale for being the condition of a Bond it is at his Peril to take notice being obliged to deliver it to him or his Assigns Cro. Jac. p. 475. Hingen and Pain Bridgman Rep. 128. The Condition was that the Defendant should not deliver Possession to any but the Lessor or such persons as should lawfully recover The Defendant pleads he did not deliver but to such persons as lawfully recovered it Good Plea he need not shew he delivered to J. S. by lawful Title 1 Keb. 380 413. Nicholas and Pullen Conditions concerning Wives COndition not to sell the Apparel of his Wife it s a good condition If a man bind himself to a stranger to pay 20 l. per Annum to his Wife this is good 1 Rol. Rep. 334. Smith and Watson The Condition was to permit his Wife to make a Will and dispose such Legacies the Defendant pleads she made no Will it was found she made a Will but that she was Covert c. Per Cur. This is a good Will within the intent of the Condition and it is but her appointment which the Husband by his Obligation is bound to perform Cro. Car. 219. Marriot and Kinâ—an The Condition was to permit his Wife to make a Will and to dispose of one hundred pounds of her Husbands Goods 〈◊〉 paid within one year after her decease The Defendant pleads â—e permitted his Wife to make a Will the Plaintiff demurs Per Cur. he ought to have pleaded that he had paid accordingly otherwise he doth but answer to one part of the Condition Cro. Car. 597. Sherman and Lally The Condition was if he should survive A. S. his Wife that if within three Months after her decease there were paid to the Obligee 300 l. to and for such uses and purposes as the said A. S. by any Writing under her Hand and Seal subscribed c. should nominate and appoint that then c. The Defendant pleads she did not limit c. any use for the imployment of that mony The Plaintiff replies she by her Will in Writing c. did appoint such Sums to be paid The Defendant demurs because she ought to have made a Deed in Writing and not a Will But Per Cur. this Declaration was good and though the pleading was that A. S. Voluit devisavit and not that it was appointed by her yet Per Cur. well enough for it is not properly a Will that is made by a feme Covert but a Writing in nature of a Will Cro. Car. 376. Tille and Petre. Authority was given to the Wife to â—lso 300 l. and she disposeth 200 l. by fifties and well Condition to make a Will in the presence of her Husband or if he refuses it such person as her Husband should appoint Qu. If refusal ought to be alledged or notice to the Husband 1 Keb. 347. Harris versus Beffie To procure a Marriage between the Plaintiff and B. P. such a day or before The Defendant pleads the Plaintiff before that day called B. P. Whore and used other base Language by reason whereof the Defendant could not procure the Marriage no Plea for he hath not shewed his endeavour to procure the said Marriage and notwithstanding such words they might have inter-married Cro. El. p. 694. Blandford and Andrews A Condition to pay such a Sum as E. B. should appoint after Marriage with the Defendant by her last Will or other Writing signed in tiel form the Defendant saith she made no Will nor any other Writing c. the Plaintiff sets an appointment in Writing forth the Defendant saith it was after revoked this is no departure because its a fortification of the Bar and could not be foreseen and its revocable contrary to Hobert Ormonds Case 1 Keble p. 821. Shepard and Spencer A Condition not to meddle with the Goods of the Feme which were her first Husbands but that she and her Children might enjoy them sans disturbance claim or interruption of the Defendant Breach assigned that the Defendant took and detained the Goods of the first Husband and Issue pro Quer. and the Breach well assigned Cro. Car. p. 204. Crawle and Dawson A Condition to pay so much yearly to his Wife it good as well as to give her a Gown 27 H. 8.27 Condition to accept a Lease A Condition If the Obligor accepted a Lease by Indenture of such Lands upon the Plaintiffs request and sealed a Counter-part thereof then c. The Defendant pleads the Plaintiff did not request him to accept a Lease the Plaintiff replies he had caused an Indenture to be drawn and ingrost according to the said Condition and a Label affixed cum sera appensa and required and offered it to the Defendant to accept thereof and he refused Issue upon the request found pro Quer. Error 1. Sera is not Wax sed non allocatur 2. Because he avers not the Lands mentioned in the Indenture are the same in the Condition but because he pleads non requisivit and he replied it was secundum formam Conditionis it shall be intended the same Lands and if they were other Lands the Defendant ought to shew it Cro. Car. 560. Lee versus Russel Condition to appear at a Place THE Condition was That S. and his Wife should appear at the Marshals Court S. appears and pleads that at the time of the Obligation he was solus innuptus Judgment pro Quer. sur demurer Stiles p. 17. Pain and Skelton To appear within eight days after warning warning ought to be shewn to be given of the Action brought Cro. Jac. 46. Yelv. p. 52. Hargrave and Rogers In Debt on an Obligation to appear at a certain day Imprisonment is no Plea 2 Rolls Rep. 136. Anonymus In a Recognizance to appear c. Imprisonment by Commissioners of the Adâ—ralty is an excuse Moor n. 251. Lacies Case A Condition to come to the Kings Head c. on the 12th of October and there elect two Arbitrators who with two others to be elected by the Plaintiff should arbitrate of all Sums c. the Defendant pleads on the 12th of October he came to the Kings Head c. and there elected two Arbitrators but the Plaintiff was not there Plea not good because he shewed not at what hour of the day he came nor how long time he continued there for he ought to be there so long time before the last instant as the Arbitrament may be made neither doth he shew that his two Arbitrators were there present Cro. Eliz. 549. Edmonds versus Marks The Under-Sheriff took a Man by Attachment out of Chancery who took Bond of him to appear at the day contained in the Attachment Per Cur. the Bond is void for that the Defendant was not bailable upon the Attachment 3 Leon. 208. Bland and Riccards Debt upon an Obligation taken in the Kings Name in
the Court of Requests with a Condition to appear before the Master c. the declaration is general that the Defendant such a year and day by his Obligation did acknowledge himself to be bound to the King in 60 l. to be paid c. and naught because it did not appear to be taken in a Court of Record 1 Brownl p. 68. Rex versus Castle Not to alien A Condition to perform Covenants one was That the Lessee his Executors or Assigns nor any other who shall come to have the Estate or Interest in the Term shall not alien their Estate sans licence of the Lessor but only to his Wife or Children the Lessee deviseth it to his Wife she alieus the Covenant is broken it extends to the Lessee and his Assigns and she is Assignee express so although there was once an Alienation by Licence yet that Assignee cannot alien sans Licence Where a Condition is in a Lease that neither he nor his Assigns should alien without Licence the Lessee died Intestate the Administrator was bound by this Condition Cro. El. 757. Thornil and Adams versus King sa Feme A Condition not to alien without the consent of the Lessor the Lessee makes his Executor and deviseth this to him the Executor enters generally the Testator not being indebted to any this is a Forfeiture 1. Rolls Abr. 429. Dampâ— and Symons Not to continue a Suit A Condition that he shall not continue such a Suit If he continue it by an Attorny it s a Breach alit if the Attorny enters the Continuance without his privity Cro. Jac. 525. Gray and Gray To convey Land upon Marriage THE Condition was That after Marriage of the Plaintiff and having a Son by his Wife that if he conveyed Lands to the 〈◊〉 of â— l. per aâ—n in Tail to the Son to enjoy after the death of the Obligor that then c. the defendant shews the day of the Maâ— and the having of a Son and that he made 〈…〉 to a Stranger to the use of himself 〈…〉 after to the use of the Son in Tail the Plaintiff replies quod non feoffavit the Bar is ill for the Infant was not made party to the Conveyance nor had any Deed to prove his Estate but the Plaintiff by the Replication hath admitted the â—ar to be good and he may traverse the Feoffment or the Uses Cro. Eliz. p. 825. Statfield and Somerset A Condition if the Obligor pay 200 l. by the first of December 1634. that then the Surrenderce should reconvey on request the Plaintiff alledgeth a Request in 1644. the Defendant demurs Per Cur. the Surrender being absolute and in trust only for payment there being no payment at the day this Mortgage is irremediable Judgment pro Defendente 3 Keb. 786. Hancocks Case To perform a Promise A Condition to perform such a Promise made by the Obligor to the Obligee but it not appearing when the breach of Promise was made it was Error Stiles 17. Sanderson and Martin Condition to do things belonging to a Trade A Condition to make all such Linnen as he should want during his living single the Sempstress is not bound to find Linen nor a Tailor Materials the Intent may guide the Contracts contra of a Shoe-maker Gold-smith c. 1 Keble 466. Oates versus Thornel Condition to deliver Goods or pay Value A Condition to deliver all the Tackle of a Ship mentioned in an Inventory under the Hands of four Men or in default thereof to pay so much Mony to the Plaintiff before such a Feast as the four Men should value the Tackle at the Defendant said they did not value the Tackle no Plea for he had election to do two things and if he cannot do the one he is to do the other and it is at his peril to procure the Men to value the Tackle Moor n. 844. More and Morecomb A Condition at the end of the Term of a Lease of Lands and Goods to deliver the said Goods to T. or make him such satisfaction for them as shall be by two indifferent Persons to be elected for review of them thought fit the Defendant pleads two Persons were not elected the Plaintiff replies two were elected the Defendant rejoins that they were not chosen by consent of both for the Defendant conseâ— noâ— to the election Per Cur. the election by the Plaintiff is sufficient for the word indifferent shall be referred to the Parties elected and not to the election of the Parties aliter if it had been by two Persons indifferently to be chosen 2 Rolls Rep. 86. Talbot and Benson 5 Rep. Hungates Case Condition to reap and carry Corn c. over the usual Way A Condition to permit and suffer J. S. quietly to reap and carry c. without any disturbance or interruption of him the Defendant pleads permisit the Plaintiff replies there were some Acres sowen with Rye and shews the certainty and coming to reap he prohibited him saying these words Moneo prohibeo te quod neque metes ibid. neque abcarriabis c. this disturbance is a Breach 1 Anderson n. 188. fol. 137. Bur and Higs Condition to give an Account A Condition for a sub-Collector of the Subsidy to give a sufficient account in the Exchequer of all such Sums he had received and to discharge and save harmless the Plaintiff of these Receipts against the Queen and to procure to the Plaintiff a sufficient Acquittance or Discharge out of the Exchequer as in the like Case is used that then c. the Defendant pleads he had accounted c. and had discharged and saved harmless the Plaintiff c. and had procured Acquittance the Plaintiff demurâ— for he pleads in the affirm actâ—e he had discharged and shews not how 〈◊〉 This being a multiplicity of things if the general pleading be not good Cro. El. p. 253. Actâ— and Hill A Condition to give account of all Monies gathered by vertue of a Brieâ— c. the Defendant pleads he gave account of all such Monies ill Plea he ought to specifie what he had received or else to say he had received nothing 1 Keb. 760. Woodcot versus Cole A Condition to give a just and true account being a Bâ—s Clark the Defendant pleads performance the Plaintiff replies by receipt of 30 l. the Defendant rejoins it was stollen out of the Plaintiffs Count house the Plaintiff demurs the Robbery is a good Bar 2 Keble 761 779 830. Vere and Smith A Condition was to render a full account to the Plaintiff of all such Sums of Mony and Goods which were due and owing to W. N. at the time of his death which shall any ways come to the hands of the Defendant and shall upon such account within the space of one Week when required make an equal dividend of all such Sums of Mony and Goods and pay the Plaintiff his proportion of the same the Defendant pleads no Goods or Sums of Mony came to his
between him and his Parliament being recited The Defendant pleads King Charles the I. was Beheaded and never Restored c. pro Defendente This appears to be personally meant of the King and not in his politick capacity 1 Keb. 820. 2 Keb. 215. Grinsells Case Either So as the Award shall be delivered to either of them either shall be expounded every for each ought to have a part Cro. Eliz. 448. Parker and Parker Debt upon an Obligation dated 1. of February 25. Eliz. The Defendant pleads a Release bearing date after making of the Bond of all dues demands whatsoever except an Award made between the Plaintiff and one G. W. with R. K. deceased and one Obligation of 500 l. for performance of the said Award bearing date 29 April 25 Eliz. In the Replication the Plaintiff shewed the special matter that the Award was made the 29th of April and the Bond was made the 1 of February Per Cur. bearing date shall have reference to the Award and not to the Bond. 1 Brownl Rep. p. 54. Gage and Gilbert The Condition was to enjoy a Ship with all the Furniture without disturbance The Case was after Sale of the said Ship a Stranger sues the Plaintiff for Mony due for certain Ballast bought by the Defendant and put into the Ship before the sale of the Ship Per Cur. Ballast is no Furniture of a Ship but Guns are 1 Leon. Case 59. fo 46. Kinters Case Miles If such a place be 4 Miles from Rye it shall be construed 4000 Paces Cro. Eliz. 412. Minge and Earl If I am bound to you that J. S. who is in truth an Infant shall levy a Fine before such a day which is done accordingly and after the same is reversed by Error yeâ— notwithstanding the Condition is performed 1 Leon. p. â—4 in Leighâ— Case Obiter A Condition to deliver 18 Barrels of Ale on Contract the intent is the Vendor shall have the Barrels again when he Ale is expended 27. H. 8.27 I am bound to given a Shoulder of every third Deer which I kill in my Park yet I may dispark it for this comes not within the Rule That a Man shall not by his own Act defeat or frustrate his own grant but it is to use the liberty I reserved to my self upon my grant standing with the grant Hoâ— p 41. in Coopers Case I shall now speak something of Statutes and Recognisances for that they are Obligations on Record but I intend not to handle the Learning at large as to Executions thereon and what is liable thereunto for that is more properly to be treated of under another Title But I shall here speak of the Nature of them the Form of them and Manner and Effect of the Acknowledgment and something of the Process and they concern Subject and Subject or the King and a Subject of the first are Statutes and Recognizances Statutes are of two sorts Statutes Merchant of the Staple Statute-Merchant is acknowledged before Persons authorised sealed with the Seal of the Debtor and of the King which is of two pieces the greater is kept by the Mayor c. and the lesser by the Clark this is by Stat. de Mercatoribus 13 Ed. 1.4 Acton Bornel the form of it vilâ— post This is become now a Common Assurance Statute-Staple is founded on 27 Ed. 3.2 this is acknowledged before the Major of the Staple but now by Stat. 23 H. 6. a Statute-Staple improperly so called may be acknowledged before one of the Chief Justices before the Major of the Staple at Westminster or the Recorder of London It is sealed with three Seals the Seals of the Conusor the King and the Person before whom it s taken the form vide post They are both of one effect as to execution All Bonds concerning the King shall be of the nature of Statute-Staples and so for first Fruits 33 H. 8.39 26 H. 8.3 The manner of making Let there be a certain day of payment limited in it And yet one Davies acknowledged a Statute-Merchant to J. M. The Statute was formal in all Points saving that no day of payment was limited in the said Statute Upon demurrer to And. Quereâ— the Statute was adjudged to be good when it appears by the Statute when the Mony is to be pâ— it s well enough as it doth here viz. presently there ought to be a time certain when the Mony shall be paid either an actual time or a legal time if it be to be paid at Michaelmas after J. S. shall come to Pauls it s not good because it may not appear to the Major judicially when to make Execution Winch 82. Hichford and Machin solemnly argued by all the Judges the same Case in Jones Rep. 52. Bridgmans Rep. 16 17 18. The Statute-Staple is to be sealed with the Seal of the Conusor and the Seal of the King appointed for that purpose and with the Seal of the Chief Justice Mayor and Recorder before whom it is acknowledged and they before whom it is taken do subscribe their Names to it If a Statute-Merchant be not sealed with the Seal of the Debtor and there be not a Seal of two pieces annexed to it this is no good Statute neither can it take effect as a Statute 35 El. Hollingworth and Asâ—l An Querela to avoid a Statute Merchant taken before the Mayor of N. furnishing in his Writ two Causes to avoid the Statute 1. The Mayor â—e had not any such Authority to take the Statute 2. Quod scriptum recognit c. non fuit sigillat cum sigillo Reginae de duabus peciis provis pro sigillatione Statut. Mercator and upon this Writ the Plaintiff counts and alledgeth these two matters Per Cur. the Count is double and vitious for though a Writ of Audâ— Querela may comprehend divers Causes for the avoidance of a Statute yet the Count ought to comprehend but one Cause and either of these Causes alledged was sufficient to avoid the Statute and an Audita Querela lieth in such Case and he shall not be put to sue a Writ of Error to avoid it Cro. El. 809. Forrest and Ballard but he cannot assign want of one of these Seals for Error if he had admitted the same in the Common Pleas Moor n. 738 Worsley and Charnock Those that are meer Recognizances as before a Master in Chancery c. need not be sealed but they must be enrolled Cro. El. 355. 1 Leon. 228. Ascue and Fotiam Issue is whether there are two Seals it s well tryed by a Jury and not by the Mayors Certificate Statutes and Recognizances must be enrolled and being inrolled it binds Persons and Lands as a Record from the day of the entry of it upon the Roll it s a Recognizance from the first acknowlegdment and binds as a Record from that time 2 Rolls Rep. 382. Allen p. 12. Stiles p. 9. And all Statutes-Merchant and Staple are to be brought to the Clark of the Recognizances within four months
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.
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
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
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