hands Et hoc paratus c. the Plaintiff replies a Silver Bowl belonging to the said W. N. at his death came to the Defendants hands such a day and place Et hoc paratus est verificare the Defendant demurs Per Cur. the Replication is ill for the Plaintiff hath not shewed a Breach for he ought to shaâ—e the Defendant had 〈◊〉 made a dividend or paid the proportion 1 Sanderâ— 100. Heymaâ— and Gerrard Conditions concerning Wills and Legaciâ— A Condition to suffer his Wife to make her Will vide antea A Condition to observe perform fullfil and keep the Will of M. D. in all Points and Articles according to the true intent and meaning thereof that then c. and D. M. by his Will bequeathed to the Poor of such a Town 10 l. and to J. S. 3 l. The Defendant pleads he had paid the 10 l. to the Poor and as to the 33 l. he is and always was ready to pay the same to the said J. S. if he had demanded it a good Plea for this Obligation the Condition of which being general to perform the Will hath not altered the nature of the payment of the Legacy but the same remains payable in such manner as before upon request 1 Leon. p. 17. Fringe and Lewis A Condition to find J. S. till he come to the Age of 21 years sufficient Meat Drink and Apparel he pleads he had found sufficient Meat Drink and Apparel all the time at W. it s good though he alledge it generally and Issue was taken upon the Apparel for he durst not take Issue upon all the things for the doubleness 12 H. 7.14 A Condition to have free ingress egress and regress he pleads he had ingress â—egress and regress and saith not frank male Bar Latch 47. Climson and Pool A Condition to have all the Debts and that the Defendant should not release any in a certain Schedule mentioned the Defendant pleads performance generally but doth not set forth the Schedule he should have shewed what were the Debts mentioned and then have averred performance de omnibus singulis quod non relaxâ—vit Qu. 1 Keble 680. Barcroft and Doughty A Condition If the Defendant should make composition with one E. for Lands c. then he should pay the Plaintiff 30 l. The Defendant pleads he made no composition the Plaintiff replies that the said E. did grant unto the Defendant a Rent-charge of 5 Marks in Fee in satisfaction of his Title c. which the Defendant did accept c. and so he made composition the Defendant protestando E. non concessit c. pro placito c. that the Defendant did not accept it in satisfaction c. a good Plea it s no composition without consent which depends upon the acceptance Hob. p. 178. Earle and Tuck A. bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make and that the Defendant did not observe it the Defendant pleads that the King and his Councel did not make the Decree no Plea Marsh Rep. 78. Smithson and Simpson Expositions and Constructions of a Condition I shall now shew how Conditions are to be expounded and construed by some special Rules and Cases and what shall be intended a good performance Et vide supra sparsim sub multis titulis Sometimes Conditions must be performed according to the very Words and Circumstances A Condition to stand to the Award of J. S. so as the said Award be made in Writing indented under his Hand and Seal the Award shall not bind if it be not indented though it be under Hand and Seal 1 Rolls Abr. 409. Holmes and Hoâ— Vid infra plus tit Pleadings Where a Man is to plead according to the express Words of the Condition If the Condition be performed in substance it is good though it differ in words Where one is bound to deliver the Testament of the Testator if he pleads he hath delivered Literas Testamentarias it is good 7 E. 4.3 When the Condition is to make a Feoffment Lease and Release is a good performance 17 E. â— 3 Though this be a collateral Condition yet it is well performed for it amount in Law to a Feoffement Co. Lit. 207. a. If the Covenant be to grant the Reversion of the Tenant for Life or Years and he enters upon the Lessee and makes a Feoffment and the Lessee re-enters the Condition is performed for the Effect is performed 1 Rolls Abr. 426. The Condition is to give Licence to the Obligee to carry Trees c. and he gives him Licence the Condition is performed though a Stranger who has Right disturbs him for this extends but to the person of the Obligor by these words 18 E. 4. 20. b. Aliter if the words had been he shall have Licence But it must be performed in substance exactly and not in shew for the performance of a Condition ought to be true full and effectual according to Goodal's Case 10 Rep. And not illusory Lit. Rep. 130. Brockhams Case A Condition is to retract such a Suit a Discontinuance of this is no performance because it differs in substance for a Retraxit is a Bar in another Action and so is not a Discontinuance 20 E. 4.8 Aliter in Case of an Award as if it be awarded he shall withdraw his Suit Discontinuance is a good performance of the Award for the intent of the Arbitrator was not that he should make a legal Retraxit but prosecute the Suit no farther 21 E. 4.38 Improper words shall not vitiate a Condition words by which the intention of the parties may appear are sufficient to make the Condition of a Bond. A Condition to stand to an Award ita quod the Award be made on or before c. but if the Arbitrators shall not agree upon the Award that then they shall choose and elect an indifferent Man and they shall stand to his final end c. Per Cur. the Condition is good enough though not so properly expressed And that the Defendant had forfeited his Obligation for Non-performance of the Award of the Umpire and though such construction will prejudice the Defendant and Conditions being for the benefit of the Defendant shall be construed favourably yet the Law may not be altered But no intention of the parties shall be construed contrary to the express words 39 H. 6.10 a. The Condition was that if the Defendant do not pay so much Mony the Obligation shall be void it was naught though the intention was he should pay the Mony 1 Sanders 66. Bâ—er and Wigg The Condition was to appear c. and the Conclusion was then the Condition of this Obligation shall be void and so no words to make the Obligation void but per Cur. It is a good Condition though these words â—id been omitted 2 Sanders p. 78. Maleverer and Hawksby Conditions construed according to Intent NO intention of the parties shall
by Deed indented leased to the Defendant a Farm called D. except one Close by Name Lessee Defendant was bound in a Bond to perform all the Covenants and Agreements in the said Indenture and pleaded he had performed all the Covenants the Plaintiff assigns for breach that the Defendant entred into the Close excepted the Defendant demurs Per Cur. the Obligation is not forfeited by this disturbance this Exception is not such an Agreement as is within the intent of the Condition it s an Agreement that the Land excepted shall not pass by the Demise but no Agreement that he shall occupy but sometimes an Exception is an Agreement that shall charge the Lessee but this when he agrees on his part that the Lessor shall have a thing dehors which he had not before as except a Way or Common or any other Profit a Prender that is Agreement of the Lessee that he shall have the Profit and if he bound to perform all Covenants and Agreements if he disturb him in this he shall forfeit the Obligation Cro. Eliz. p. 657. Lady Russel versus Gullwell Moor n. 713. id Case In a Lease for years the Defendant Covenants that the Plaintiff should enjoy it during the Term on Demurrer the Case was Tenant pur vie levies a Fine to him in Reversion come ceo c. the uses were to the Conusee and his Heirs on condition to pay to the Tenant pur vic 4 l. per ann during his life and upon default that it should be to the use of the Conusor for his life the Conusee made a Feoffment to the Defendant who leased to the Plaintiff the 4 l. was not paid nor demanded the Tenant pur vie enters on the Plaintiff this is a breach of the Condition without any demand of the Rent for its a Sum in gross and not issuing out of the Land the Covenant is that the Lessee shall absolutely enjoy it and this Condition is properly to be performed by him who hath the Freehold and it was held that this Feoffment had not destroyed the future use which is to arise for non-performance of the Condition Cro. El. 688. Smith and Warren Two make a Lease for years by Indenture and covenants that the Lessee should not be disturbed nor any incumbrance made by them one of the Lessors makes a Lease to a Stranger who disturbs on Bond to perform Covenants it s a breach of the Condition for them shall not be taken jointly Lach. p. 161. Merritons Case Condition of the Obligation was That the Plaintiff should have hold and enjoy Lands acquitted from all Charges and Incumbrances and for breach the Plaintiff shew there was a Rent-charge granted by the Predecessor under whom the Defendant claimed which is yet undischarged the Defendant demurred because the acquittal goes to the having and holding the Land and it s not shewed that the Plaintiff was ever in possession nor that he was charged or endamaged to which Twisden and Keeling agreed but by Windham the Defendant ought to shew how he had discharged and acquitted from the very Rent and not to let it perpetually hang over him but by all the Court if the Acquittal refer to the Land it self or to the Person the Defendant must shew how 1 Keb. fol. 927. King and Standish A Covenant that the Indenture of a Lease at time of the Assignment is a good true and indefeasible Lease and that the Plaintiff shall enjoy c. without the let or interruption of the Defendant or of any claiming by from or under him and shews for breach that before he that made the Lease had any thing one J. S. was seized in Fee and that he which made the Lease entred upon him and disseised and leased prout and that J. S. re-entred upon him upon which Replication the Defendant demurs per Cur. the word indefeasible Lease shall be construed as a distinct Sentence from the last words that he shall enjoy it without the interruption of the Defendant Siderfin p. 328. Gainsford and Griffith 1 Sanders p. 51. Johnson and Vavisor Joyntenants of a Mill by Lease for years Vavisor assigns all his Interest in the Mill to another without Johnsons assent or privity and dies Johnson after recited this Indenture by Lease and that all came to him by Survivorship grants the said Mill and all his Estate Title and Interest to Procter and covenants that he shall quietly enjoy it notwithstanding any Act done by him and Bond of Covenants Act. de Det sur Bond. Johnson pleads that the Plaintiff had enjoyed this notwithstanding any Act done by him Procter replied that Vavisor Joyntenant with Johnson assigned his Estate to J. D. who entred and expelled him The Defendant demurs adjudged against the Defendant for the Grant was never good for he had no power to grant one Moiety and yet he had expresly granted the Mill to Procter And the Condition of the Obligation being to perform all Grants the Grant being defective at the first as to a Moiety which is the Substance of the Agreement of all the Parties this is not qualified by the Covenant ensuing and it is not like to Nokes Cass 4 Rep. for there the Grant was good for the whole and becomes ill by Eviction afterwards and therefore the Covenant ensuing qualified the general Covenant Yelv. p. 175. Johnson and Procter Lit. 206. 1 Bulstr 3 4. A Covenant that the Lessee shall enjoy against the Lessor and all claiming under him The Defendant exhibited a Bill whereby the Lessor appeared to be in Trust and adjudged this was no Breach Selby and Chute cited 2 Keb. 288. 1 Brownl p. 23. The Covenant was if the Defendant sued or troubled charged or vexed the Plaintiff Per Cur. a Suit in Chancery is within the Condition 2 Keb. 288. Ashton and Martin A Condition to surrender a Copyhold and that the Plaintiff shall enjoy this without the let of any claiming under the Defendant and of one Lancelot Simons The Defendant pleaded Surrender and that the Plaintiff had quietly enjoyed this The Plaintiff replies that one Jane Simons claiming under Lanceolet ousts him Demurrer and Judgment pro Quer. The Case was this Copyhold was granted to Patience Hussy for Life the Remainder to Lanceolet S. in Fee and that after and before the Obligation Lancelot surrenders his Remainder to the use of Patience for Life and after to the use of Lancelot and Jane for their Lives and after to Lancelot's Heirs Lancelot and Patience dye and after the Obligation Jane enters The cause of Demurrer was that Jane took nothing by the Surrender for the Surrender to P. H. pur vie was void she having an Estate pur vie before and consequently the Remainders by notice upon this void Estate are void also Dut per Cur. the Estate limited to Jane S. shall be by way of present Estate and mediate Settlement and not by way of Remainder 1 Sanders p. 150. Wade and Balch 2 Keb. 341. Id. Case
Dudeney and Collier In Debt on a Bill of 40 l. to be paid at H. which is out of the Jurisdiction of the Court of Jernemutha being in the County of the City of N. which is Error the Count being upon payment generally 1 Keb. p. 378. Annison and Perkin A Condition to perform Articles one whereof was to pay Mony which the Plaintiff should disburse in composition of a Fine set on the Defendant by the Judges of Assize The Plaintiff averred he had paid 50 l. ad recept suam apud Westm and saith not in Com. Midd. The Defendant demurred the Averment was ill 2 Keb. 204 Ansly and Anslow Condition to pay Mony upon Marriage THE Condition was to pay 100 l. to the Plaintiff on his Marriage-day The Defendant pleads he had no notice given him of his Marriage-day Ill Plea for no notice need to be given 2 Bulstr 254. Selby and Wilkinson A Condition to pay 300 l. in consideration of a Marriage between the Plaintiff and his Daughter which 300 l. was to be paid within three Months after that he shall come to the age of 18 years or within 18 days of the Marriage after notice made which shall first happen Per Cur. the notice shall relate to both because it is uncertain which of them shall happen first Latch p. 158. Read and Bullington In Debt on a Bond to pay Mony upon Marriage the Jury may try Wife or not Wife but not the Legality of Marriage and it need not be alledged that the party was married at the time of the Bill The Issue here is not legitimo modo maritatus as in Dower which shall not be tryed by a Jury but in Debt on Bond it doth not draw the Right of Matrimony in question 1 Keb. 105. Tr. 13 Car. 2. Glascock and Morgan Conditions to pay Mony concerning Children or Bastards THE Condition was for the payment of Childrens Portions when they married or came to the age of 21 years The Defendant pleads that he had paid the same cum quam cito they came to their full age generally It is an ill Plea he ought to have shewed the time when they came to age and when he paid this Mony that so upon this Issue might be taken 2 Bulstr 267. Haulsey and Carpenter A Man was bound to pay to the three Daughters of a Stranger 10 l. a piece at 21 years of age The party being sick makes his Will and in performance of the Covenant for which he was bound in an Obligation devised to each of the Daughters 10 l. to be paid at 21. One sues for her Legacy and a Prohibition was granted for the intent of the Devise was he should not be twice charged More n. 368. Margery Davies Case A Condition for the payment of 120 l. at the full age of J. B. if it be demanded The Defendant pleads the Plaintiff did not demand it after the full age of J. B. Judgment for the Plaintiff for the bringing the Action is a sufficient demand Crook Jac. p. 242. Dockray and Tanning The Condition was to pay 10 s. weekly secundum ordinem fact per Justiciar c. for keeping a Bastard Child The Defendant sur Oyer pleads nullum talem ordinem fecerunt Judgment pro Quer. Otherwise if it had been secundum ordinem faciend Latch p. 125. Jermin and Randal for the one is an Estoppel to the Defendant the other is Executory Noy p. 79. vide plus sub Tit. Conditions to save harmless A Condition to pay Mony upon proof or if such a thing be proved then c. A Condition to pay within three months next after his Arrival from Rome 10 l. the Obligee proving the same by Testimonial or Witnesses the proof might be by Witnesses or Testimonial under the Seal of several Persons at Rome Moor n. 307. The Condition was If such Lands be proved to be parcel of the Mannor of Dale if then c. the Defendant pleads they were not proved to be parcel of the Mannor and demurs Per Cur. he ought to have pleaded they were parcel of the Mannor so as proof might have been made in this Action Cro. Eliz. fol. 232. Elve and Sabe Judgment pro Quer. Vide plus sub Tit. Apprentices Bonds Special Conditions for payment of Mony on Contract Agreements Contingency c. and pleadings thereon A Condition to pay 300 l. to the Plaintiff and to add 3 l. to every Hundred if it were demanded the Defendant pleads he paid the 300 l. and that he added 3 l. to every hundred secundum formam Conditionis praedict Verdict pro Quer. but Judgment pro Defendente upon Arrest because the Plaintiff ought to have alledged a Demand and this being matter of substance without which the Plaintiff had no cause of Action it was not helped by the Issue or Verdict though the words secundum formam Conditionis seem to imply a Demand Allen p. 55. Hill versus Armstrong A Condition if the Obligor pay to the Obligee 100 l. within one month after notice of his return from Constantinople into England that then c. the Defendant pleads no notice was given to him of the return c. Verdict pro Quer. Error assigned because it is not averred that the Mony was not paid and then no cause of Action but per Cur. it s no Error for when the Defendant said he had no notice this is a confession per nient dedire that he had not paid it and Issue being taken upon a collateral Matter and found for the Plaintiff he shall have Judgment Cro. El. p. 320. Griffin and Spencer The Condition was to pay 40 l. per ann quarterly so long as he was to continue Register to the Arch-deacon of C. the Defendant saith the Office was granted to A. B. and C. for their Lives and that he enjoyed the Office so long as they lived and no longer and that so long he paid the said 40 l. quarterly the Plaintiff replies The Defendant did enjoy the Office longer and had not paid the Mony the Defendant demurs per Cur. the Replication is not double for the Defendant cannot take Issue upon the non-payment of the Mony for that would be a departure from his Plea in Bar Mod. Rep. p. 227. Gaile and Bets. A Condition if they or either of them two Obligors upon request made should pay for so many Barrels of Beer as should be delivered to them so much for every Barrel as should be agreed upon between them c. the Plaintiff sets forth he had delivered so many Barrels of Bear and agreed for 10 s. per Barrel which Mony he had requested of one of the Obligors he may require payment of one or the other 3 Bulstr p. 210. Ratcliff and Clerk A Condition to pay so much per dolium breach is assigned for the Defendants non-payment of so many Tuns and three Hogsheads which per Cur. is ill the Condition being not to pay secundum ratam as in Needlers Case of
had satisfied so much or that was not molested Crook Eliz. p. 393. Hutchinson and Leâ—son The Condition is if R. C. acquit R. F. and J. B. of such Sureties they have made to N. that then c. pleaded that R. F. and J. B. were bound to N. in 15 l. and R. C. did procure Acquittances of N. to R. F. and J. B. for the same See the form of pleading Quaere if good Plea 1 H. 7.30 a. The Condition was to secure him harmless against J. S. in an Action for 53 l. for which he was Bail for him The Defendant pleads he had paid to J. S. 20 l. in satisfaction of the 53 l. and so kept him harmless but for that the Plaintiff might be damnified before the payment to which he doth not answer the Plea is ill Crook Eliz. p. 136. Davies and Thomas In Debt on a Counter-bond for Security of Bail given for appearance of the Defendant The Defendant pleads non damnificatus The Plaintiff replied Non comparuit The Defendant rejoyns that the first Bond given was void per 23 H. 6. and that there was no Latitat issued forth per Cur. this is a departure But notwithstanding the Bond the party is not estopt to say there was no Latitat but the Non-appearance is a damnification be the Bond void or not 1 Keb. 59 98. Cook and Morgan Condition to permit WHere no Act is to be done but only a Permittance he need not plead it specially and non permifit or permisit is a good Plea A Covenant that the Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have free ingress c. The Defendant pleads quod perâ—nisit Querentem intrare c. in tales terras quales tunc jacebant frisco secundum consuetud patriae he need not shew what Lands did he fresh 1 Leon. p. 136. Littleton and Perne L. covenants with S. that he would suffer him and his Assigns to have free ingress c. into his House and Shop without let or interruption of the said L. and that S. appunctuavit one T. ut servientem suum in Messuag c. intrare in usum de S. super quo praedict T. intravit praedictas L. expulit Moved in Arrest 1. It is alledged L. expels the Servant and this was the expulsion of the Master 2. Appunctuavit intrare and doth not say what time for perhaps his Licence to enter might be determined 3. It is not said at what time he entred but super quo intravit all these Exceptions were over-ruled 2 Rolls Rep. 78. Snelling and Lowe The Condition was if A. a Stranger would render himself to an Arrest in such a place The Defendant pleads A. was a Servant to a Parliament-Man and pleads Priviledge The Plaintiff demurs Pro Quer. for A. might render himself and let it be at their peril if they will arrest him 1 Brownl Rep. 91. Jackson and Kirton A Condition to perform all Covenants in a Lease made by her Husband of a Warren one whereof was to do no Act to disturb the Lessee she after marries another Husband who entred on the Plaintiff and cut his Nets no Title being shewed by which he entred The Plaintiff demurred and Judgment pro Quer. It is not requisite that the Husband be Assignce of the Estate but her Assignce of Contract which she might have avoided the Husband acts in her Right 1 Keb. 348 512. Hall versus Creswel Uxor One is bound to permit his Tenants to use the Common and that he shall not alter the Course of the Common quod permisit and that he shall not alter c. is a good Plea generally 11 Eliz. Dyer 279. Condition to surrender Copyhold Lands THE Condition was that the Obligor should surrender his Copyhold Land to the use of the Obligee he pleaded he had surrendred it ill Plea because he had not shewed when the Court of the Lord was holden Winch p. 11. Llewellins Case The Condition reciting whereas such Copyhold Lands were to be surrendred by A. S. at her full age to the use of the said Hammond and Guy and their Heirs and that Gay should pay to Hammond 33 l. at such a day and if he failed it should be to the use of Hammond and his Heirs It was conditioned that if the Obligor procured the said A. S. at her full age to surrender to the use of Hammond and his Heirs and if Hammond and his Heirs might have and enjoy the said Lands to him and his Heirs then the Obligation c. The Defendant pleads Gay paid not the 33 l. and that A. S. came of full age such a day and afterwards at such a Court in full Court did surrender release and quit claim to the Plaintiff being in possession all her Estate Right and Interest in the same Tenements and that the Plaintiff always after might have enjoyed the same Tenements The Plaintiff replies quod bene verans est that the said A. S. did surrender prout c. but that afterwards such a day the said Gay entred and expelled him The Defendant demurs per Cur. the Replication is not good because he hath not shewed he was evicted by lawful Title for otherwise this Bond doth not extend to it and per Cur. the Bar that shall be surrendred and released in Court is good and certain enough according to common intendment And although it be not said she surrendred to the use of the Plaintiff yet it being alledged it was surrendred in Court and accepted by the Plaintiff and confessed by the Replication it is good Crook Car. first Case Hammond and Dod. The Condition whereas F. held Copyhold Land of Sir J. K. if he within six Months after the death of F. granted the Land to the Plaintiff and two others whom the Plaintiff should name for three Lives according to the Custom of the Mannor that then c. The Defendant pleaded the Plaintiff nominated no Lives The Plaintiff replies Sir J. K. within the sixth Months granted it to J. S. and two others for their Lives who are yet alive the Defendant pleads non conâ—ossit and found against him It is not Error that the Plaintiff in his Replication shows not that the lands are Copyhold for the Condition reciting it is Copyhold Land he is estopt Crook Jaâ— p. 275. Sir J. Kernes Case To satisfie Imbeziled Goods ONe was bound to satisfie for Goods he had imbeziled he pleads that upon suit for those Goods he was taken in Execution for the damage No Plea 33 H. b 47. Hillaries Case Hob. p. 59. The Condition if A. turned over Apprentice should waste the Goods of his Master to pay what the Master was damnified no damage pleaded Plaintiff sets forth goods wasted but it s forth no notice given to the Defendant no notice is necessary when any one undertakes for a third person he must answer for him at his peril because the imdesilment is
not in the Conisance of the Plaintiff and the particulars of the Goods wasted need not be set forth 1 Keb. 467.471 French and Beirce To enjoy Office A Condition Whereas the Plaintiff and Defendant be now jointly seised of the Office of the Registry of the Court of Admiralty if the Defendant shall permit the Plaintiff to use the said Office and take the profits of it to his own use during his Life without let or interruption done by him then c. the Defendant pleads That the Custom of the Realm of England is that the Lord Admiral might grant the said Office during his own Life and the Lord Clynton did grant it to the Plaintiff and Defendant and dyed and the Lord Howard granted to Wade who ousted him before which time the Defendant suffered the Plaintiff to enjoy the said Office and to take the Profits the Plaintiff demurs male plea for if it be the custom of England then its common Law and this cannot be tryed for no Venue can be from the Realm of England also he doth not answer to any time after the grant of Admiral Howard for though Wade might lawfully put him out yet the Defendant could not 2 Leon. 114. Parker and Harrold Condition if the Plaintiff had possessed and enjoyed the Office of Ecadleship c. that then c. Defendant pleads quod habuit gavisus fuit occupâ—vit c. Jury find the Plaintiff did exercise and occupy that Office but whether that shall be said having and enjoying they doubted Per Cur. diversity between an Office in verity and an Office in reputation for of Office in reputation there can be no other possession but by occupation for it is no Office in Interest as Office of Marshal of Justice of Assize Cro. Eliz. p. 382. Dudly and Kingâ—n To procure an Office Place Benefice THe Condition was if S. procure a Grant of the next Avoydance of the Arch-Deaconry of Staff to be made to the said Bingham so that the said Bingham to such next Avoydance may present that then c. the Case was by the means of S. the Grant of the said next Avoydance was made to Bingham but before the next Avoydance the present Arch-Deacon was made Bishop so as the Presentment to the nâ—t Avoydance appertained to the â—en Per Cur. the Condition was not performed and that by reason of these words so that Bingham may presented 3 Lâ—on 151. Bingham and Squire Condition if the Defendant do not lawfully procure Market to be granted within six Months of a return of an ad quod damnum to be sued out for that purpose that them if the Obligor pay 20 l. to the Obligee then c. it was returned to be ad damnum and so no Market procured Obligee shall recover the 20 l. Rationem vide 2. Rolls Rep. 467. J … and March Conditions concerning Writings to procure to deliver to execute to make IF a Man bind himself to procure a Stranger to make a Release of all his Right and Title to Land the Obligor must procure him to make such a Release de facto though he had no right 1 Sâ—â—ders 216. Doughty and Neal. Vide there the Form of the Condition and the Pleadings A Condition if J. S. make Obligation to the Plaintiff before Michaelmas that then c. the Defendant pleads J. S. made the Obligation and sealed it and delivered it to another as his Deed to the Use of the Plaintiff Per Cur. it s no performance for perhaps the other will not deliver it to the Plaintiff Cro. Eliz. p. 143. Bease and Draycot Condition to pay 100 l. to the Plaintiff when he shall take a sufficient discharge from A. and B. for the payment of Legacies an Acquittance from one by the others consent is no sufficient discharge 1 Keb. 739. Forquer and Fraâ— Condition that the Daughters when they come to full Age shall give Releases it shall be taken diâ— 2 Keb. 591. â—osviles Case Condition to give such a Release and Discharge from and against him and his Heirs for receipt of a hundred Marks as by the Judge of the Prerogative Court of Canterbury shall be thought meet the Defendant pleads the Judge did not appoint any release or discharge c. no Plea for it should be alledged he caused a Release to be drawn and tendered to the Judge to be allowed of for it is on his part in discharge of his Obligation to draw such a Release as the Judge shall allow Cro. Eliz. p. 716. Lamb and Brownwent 5 Rep. 23. b. The Judge is a stranger to the Condition and he hath taken it upon him to do it at his peril he ought to procure the Judge to direct it Lambs Case A Condition if Obligor deliver to the Plaintiff an Obligation in which he was bound to the Defendant before such a day that then c. the Defendant sueth the Plaintiff upon the Obligation and recovereth and afterwards and before the day he delivers it to him this is no performance though the words were performed yet the intent was not for the intent was he should have the Obligation for his discharge which is not by the delivery for tranfit in rem judicatam and he may have the benefit of the judgment Cro. Elz. p. 7. Teales Case If a man not Lettered be bound to make a Deed he is not bound to seal and deliver any Writing which shall be tendred to him unless there be some body present that may read this to him or expound it if he request it 2 Rep. 3. Mansers Case The Condition was to seal and execute a Release to the Plaintiff The Defendant demurs because the Plaintiff in his Declaration did not alledge a Tender the Condition not being to make but to seal and execute Per Cur. he is bound to do it without a tender Mod. Rep. 104. Baker and Bulstrode Condition was That the Obligor shall deliver all Writings concerning such Land it s a good Plea to say generally that he had delivered all the Writings 28 H. 8. Dyer 28. 4 H. 7.12 Condition to enfeoff the Obligor of certain Lands at such a day and place Pleaded that the Defendant was present there all the day to enfeoff the Plaintiff and that the Plaintiff came not there to accept of this Plaintiff replies he was there present all the day to accept the enfeoffment without that that the Defendant was there it s a good Replication Doct. pl. 323. 22. Ed. 4.43 Condition to deliver Possession COndition if R. H. upon request by the Plaintiff his Heirs or Assigns should deliver the Possession of such a Farm to the Plaintiff his Heirs or Assigns c. The Plaintiff assigns the Reversion by Deed to Richard and Henry P. in Fee At the day H. P. alone came and demanded the Possession without notice given of â—s coming c. Per Cur. 1 The deâ— of H. P. is the demand of both and the delivery of the Possession to one
other Debt 2 Keb. p. 804. Street and Buckner 1 Brownl p. 47. Lovelace's Case Stiles p. 339. Brock and Vernon More N. 1147. 2 Keb. p. 804. Street and Buckner Vid. pluis Litt. p. 58. Ene's Case 5 Rep. 44. Lord Cromwell's Case cited in Higgin's Case No though a Stranger give the Bond 1 Brownl p. 71. Hawes and Birch If Issue be joyned on the acceptance and the Plaintiff be Nonsuit Q. If this Plea be such a Confession of the Action as the Plaintiff shall have Judgment Hobart p. 68 69. B. R. Lovelace and Colket Randiff and Strutt The Defendant pleads that the Plaintiff after the day of Payment and before the Writ brought did accept of a Statute-Staple for the same Debt in full satisfaction of the Obligation It 's an ill Plea for a Statute is but an Obligation of Record and cannot drown another which is not of Record Sir R. Brainthwait's Case cited in 6 Rep. 44. b. Higgin 's Case Vid. Co. Lit. 212. b. 5 Rep. 117. b. contra Payment of a lesser Sum and acceptance in full satisfaction pleaded you may either traverse the payment or the Acceptance but it s more proper to joyn Issue upon the payment Stiles p. 239. M. 1650. Boys and Cranfield Condition to pay 10 l. to a Stranger by Michaelmass The Defendant pleads payment of a lesser Sum before the day to him The Plaintiff demurs the Plea is ill as to a Stranger 2 Keb. p. 628. P. 22 Car. 2. Chapman and Win. Debt pro 43 l. The Defendant pleads 39 l. paid before the day which the Plaintiff accepted in satisfaction The Plaintiff joyns Issue Non recopit in satisfactionem The Defendant Demurs it 's ill He should have said Non solvit 3 Keb. p. 28 Car. 2. fo 629. Percival and Colthowe The Defendant pleads the Condition was to pay a lesser Sum at a day and that before the day he paid in satisfaction Per Cur. It 's an ill Plea not having demanded Oyer of the Condition 3 Keb. p. 708. Mich. 28 Car. 2. Clatch The Defendant pleads That the Plaintiff before the day accepted a lesser Sum in full satisfaction of a greater It is a good plea but then he must plead he paid that lesser sum in full satisfaction and that the Plaintiff received it in full satisfaction Pinnel's Case 5 Rep. 117. More N. 847. Penny and Cote For the manner and tender of Payment it shall be directed by him that made it I am bound to pay you 10 l. at Westminster and you request me to pay you 5 l. at the day in York and you will accept it in full satisfaction of the whole 10 l. it s a good satisfaction of the whole 5 Rep. 117. Pinnel's Case Condition is for payment of 20 l. the Obligor at the time appointed cannot pay a lesser Sum in satisfaction of the whole But if the Obligee do receive part at the day and thereof make Acquittance under his Seal in full satisfaction of the whole its sufficient for the Deed amounteth to an Acquittance of the whole Co. Lit. 212. b. Pinnei's Case 5 Rep. 117. b. If the Obligor pay a lesser Sum either before the day or at another place than is limited by the Condition and the Obligee receive it this is a good Satisfaction Ibid. Not only things in possession may be given in Satisfaction but also if the Obligee accept a Statute in Satisfaction of the Mony it s a good Satisfaction Ibid. Obligor is bound to pay 100 Marks at a day and at the day the parties Account together and for that the Obligee did owe 20 l. to the Obligor the Sum is allowed and the residue of the 100 Marks paid This is a good satisfaction tho' the 20 l. was a chose in Action and no payment was made thereof but by way of Retainer or Discharge Co. Lit. 213 c. Condition to make assurance of Lands to such uses The Defendant pleads he made a Feoffment to other uses which the Plaintiff accepted Ill Plea 1 Brownl 60. Potter and Tompson Where the Condition is for payment of Mony if the Obligee accept an Horse c. in satisfaction its good But if the Condition were for the delivery of an Horse c. there tho' the Obligee accept Mony or other thing for the Horse c. it s no performance of the Condition So a Condition is to acknowledge a Recognizance of 20 l. c. if the Obligee accept 20 l. in satisfaction of the Condition yet the Condition is broken So of all other Collateral Conditions Co. Lit. 212. b. If a Condition be to pay Mony to a Stranger if the Stranger accepts an Horse or other Collateral thing in satisfaction it s no performance of the Condition for there the Condition must be strictly performed But if the Condition be that a Stranger shall pay to the Obligee a Sum of Mony the Obligee may receive an Horse in satisfaction Co. Lit. ibid. To Debt on Bond the Defendant pleads it was agreed before the Forfeiture of the Bond for 300 l. between the Plaintiff and divers other Creditors of the Defendants that the Defendant should assure divers Lands to be sold and the Mony to be paid and he assigned several sums of Mony to them which they accepted and avers in facto that he sold the Lands to them and made a letter of Attorny to them to receive the Sums of Mony The Plaintiff demurs because the Indenture sounds in the nature of a Covenant and if so it shall not be in satisfaction being in it self no satisfaction nor pleadable in satisfaction of that Debt Also admitting it had been a good satisfaction if performed yet part thereof not being performed it s no bar to this Action Cro. Car. 193. Simonds and Mendsworth A Concord or Verbal Agreement cannot discharge a Specialty As a Condition for the performance of Covenants in Articles of Agreement The Defendant pleads an Agreement between the Plaintiff and him that he should grant 5 l. per Annum for life in discharge which Grant he made and the Plaintiff accepted Judgment pro Querente being only a Verbal Agreement Cro. Jac. fo 649. Noys and Hopgood and so Cro. Eliz. pag. 697. Hayford and Andrews If the Defendant pleads before the day of payment the Plaintiff in respect of a Trespass made by his Beasts in the Defendants Lands gave him longer day It s no Plea for an Agreement by Parol cannot dispence with an Obligation Condition to pay 40 l. on Michaelmass-Eve The Defendant pleads Concord that if he gave him an Hawk and 20 l. at Michaelmass-day the Obligation should be void and avers he did so and the Plaintiff accepted it It s an ill Plea for it appeareth for Non-payment of the Mony at the day the Bond was forfeited and so became single which cannot be discharged by such naked Averment en fait of such Acceptance But Acceptance before the day had been a good Discharge Cro. Eliz. p. 46. Anonymus Condition