are in full life Jones p. 303. Vid. Obligation In Debt sur single Bill of 50 l. the Defendant after imparlance pleaded that after the last continuance he had paid the Plaintiff 5 l. parcel of the 50 l. and demanded Judgment of the Bill petit quod billa cassetur the Plaintiff demurs It is an insufficient Plea because the Defendant did not alledge he had an acquittance which he ought to produce if he had an acquittance he might have pleaded in Bar or Abatement but this Plea is not peremptory because it concludes in Abatement respondeas ouster awarded Allen 63. Loder and Hampshire Allen 65. Beaton and Forrest Stiles 212. Hollingworth 15 H. 7.10 Payment without Acquittance is no Plea to a single Bill Crook Eliz. 157. And yet if such Payment be pleaded upon a Bill it being admitted and tryed against him who pleaded it the tryal is good and Judgment shall be given thereupon as in Blunden and Wood's Case Crook Jac. 85. For though Payment without Acquittance be no Plea and Issue is joined upon a thing not material for if the Defendant hath paid the Sum without Acquittance yet the single Bill doth remain in force But in as much as there was an Issue joyned upon an affirmative and a negative which is found pro Quer. it is expresly helped by the Stat. 32 H. 8. and 18 Eliz. Judgment pro Quer. 5 Rep. 43. Chamberlain and Nichol's Case The Plaintiff might have demurred upon the Plea and good Crook Eliz. 455. mesme Case and More n. 908. As in Debt the Defendant demands Oyer which was to pay Mony 31 Sept. the Defendant pleads solvit ad diem and upon Issue joyned found for the Plaintiff The Condition being impossible the Obligation is presently due and it was an Issue upon an insufficient Bar which being found for the Plaintiff is aided by the Stat. Jones p. 140. Jiggon and Purchas Debt upon a Bill whereby the Defendant acknowledged he had received 7 l. of the Plaintiff ad emendum a pair of Bellows c. to the use of the Plaintiff and avers that he had not bought the things nor paid the Mony The Plaintiff in this Case may have Debt or Account Cro. Eliz. p. 644. Earl of Lincoln versus Topcliff Obligations Joynt Joynt and Several By what Words or when an Obligation may be said to be Joynt or Several Actions and Declarations thereon FOUR are bound in an Obligation by these words utrumque nostrum the Obligee may charge any of these severally But if he will have a joint Action of Debt against two of the four the Writ shall abate for if the Plaintiff will charge them joyntly the other two which are not named shall be charged also with them joyntly by the same Deed 10 H. 7.16 34 E. 3. Dyer 129. Two are bound per joint Words and every of them by himself puts his Seal to the Deed this shall not make the Obligation several 10 H. 7.16 Two bind themselves vel alter eorum this makes the Obligation joint or several 7 H. 4l 6. b. Two bind themselves quemlibet nostrum this is joint or several 2 Rolls Abr. 148. Two bind themselves vel utrumque nostrum this is joint or several for this word vel makes it several at Election 2 Rolls Abr. 148. Hankerson and Sir Tho. Sandelon mesme Case vide 1 Brownl Rep. p. 121. Cro. Jac. 322. â— Bulst 70. Three are bound jointly and severally in one Bond the Obligee brought Debt against two this he cannot do but he may have one Precipe against the Three or several Precipes against every one 27 H. 8.6 singulos nostrum 1 Brownl 121. is joint or several Three were bound in a Bond by these words Obligamus nos quemlibet nostrum conjunctim It s a joint Bond and not several for the word quemlibet is expounded by the word consunctim 3 Leon. p. 206. Wigmore and Wells More p. 390. Uterque recognovit makes a joint Bail Bond or several at election Cro. Jac. p. 45. Hargrave and Rogers Noverint universi nos I. B. A. K. H. F. teneri c. ad quam quidem solutionem c. Obligamus nos Haeredes Executores Administratores nostros sigillis nostris sigiâ—at Plaintiff declares against the Defendant soâ—e Defendant demurs upon Oyer because it appears upon Oyer that they are joint Per Cur. The two others are named yet it appears not that they put their Seals to it and so the Obligation is single but if the truth were that the other two had sealed as well as the Defendant then the Defendant if he would take advantage of this ought not to have demurred upon the Oyer but he ought to have pleaded in Abatement that the other two Persons sealed the Obligation who are yet in full Life and so pray Iudgment of the Bill 1 Sanders Trin. 21 Car. 2. fol. 271. Cabel and Vaughan Though sundry Persons may bind themselves quemlibet eorum and so the Obligation shall be joint or several at the election of the Obligee yet a Man cannot bind himself to three and to each of them to make it joint or several at the election of several Persons for one and the same cause for the Court shall be in doubt for which of them to give Judgment which the Law will not suffer 5 Rep. p. 18. b. If Merchants in a Charter-Party covenant with the Owners separatim that one Merchant shall pay 3 l. another 3 l. and so of the rest the words are conveniunt seporatim and at the end there is such a Clause Et ad performation omnium singular ' convention ' ex parte praedict ' Mercator ' perimplend ' quolibet Mercator praedict ' separatim obligat seipsum praefato Majori pro Proprietariis en double le fraight the Covenant is several and so is the last part videlicet the Obligation 5 Rep. Mathewsons Case 2 Rolls Abr. 149. In an Indenture there are three of the one part and two of the other part in which the two covenant jointly and severally to do a certain thing and the third covenants jointly and severally with the said two after the performance of the said thing by the two to pay to the said two a certain Sum for each particular c. and after ensue these general words Pro vera reali performatione omnium articulorum agreamentorum praedictorum alternatim utraque partium praedictarum obligavit se Haeredes Executores c. in subter penalitatem 60 l. Sterlingorum This Covenant is joint and not several and an Action on the last Clause cannot be brought against one of the said three only 2 Rolls Abr. 149. If an Obligation be writ in the Name of two joint and several and they severally deliver the Obligation at several times and places this is yet joint and several 8 H. 6.31 Debt on joint Obligation vers Survivor Defendant pleads one of the Obligors died and the Plaintiff
of the Award Per Cur. it s well enough and all being intended to be done at one time the Obligation is not thereby released 2 Keb. 163. Gulthorp and Meers The Defendant in Oyer pleads the intermarriage of the Feme with the Plaintiff before the Award The Defendant demurs Per Cur. Marriage was her own Act and was a Revocation of the power given to Arbitrators 2 Keb. 865. In Debt on an Obligation to perform an Award there all the Arbitrament ought to be pleaded but in Debt on the Award he may shew part of the Arbitrament which is the ground of the Action Lit. Rep. 312 313. Leak and Butler After Consilium on Demur the Court gave leave to discontinue 2 Keb. 618. Roberts and Marriot In Debt on Bond to perform Award or Covenant If Mony be awarded or covenanted to be paid of value they require special Bail Aliter if to do any Act which is of it self uncertain as to have frees 1 Keb. 450.2 Keb. 73. Keind and Carter Apprentices Bonds A Condition that his Son should render 10 C. his Master a just account de omnibus monetis bonis c. without imbezilling any away and that if he did imbezil any thing upon due proof made of this he would pay the same to him within three Moâ— after demand Per Cur. before payment ought 〈◊〉 precede Account and Arreares and in this Aâ— Proof ought to be made and he must give notice to the Defendant 1 Bulstr f. 40. Cockain and Goâ—dloge On Covenant and declared that the Defendant by his Deed shewed in Court did covenant to satisfie him all such Sums of Mony c. as J. his Son the Plaintiffs Apprentice should imbezil from him within three Months after Requst and then lays the Imbezelling and Request c. The Defendant prays Oyer of the Deed which was entred in haec verba and there the Covenant was to satisfie within three Months after Request and due Proof made of such embezelling Issue was whether he embezilled and found pro Quer. Judgment was arrested because it appears by the Entry of the Deed that the Plaintiff ought not to have brought his Action till the 3 Months were encurred as well after Proof as after Request whereas the Plaintiff had averred no Proof in the Declaration And per Cur. the word Proof generally laid shall be understood a Proof judicial by Jury Confession or Demurrer in Court but if the form of Proof were by the Writing appointed otherwise that should prevail as by Witnesses before two Aldermen by Certificate c. Which Proof shall be set down in the Plea with all the Circumstances and then it shall be given in discretion of the Court whether that Proof were competent according to the meaning of the Writing But in this Case because the word Proof is left at large and may be made in Court judicially in an Action brought against the Apprentice before the Action brought on this Covenant made by another it may be well in this Case taken of a Proof by Tryal in Court and so iâ— every way against the Plaintiff Hob. p. 217. Crookhay and Woodward Vid. 2 Rolls Rep. 40. Leâ— and Finch Crâ— Jac. 488. Lee and â—dge Condition was that if he did waste his Masters Goods and that this should be proved by Confession under his Hand in Writing or otherwise and if within three Months after satisfaction was not made to him then the Bond to be in force Per Cur. where the Proof is general there it must be by Jury in the Action otherwise where the Proof is with a reference to time and before persons certain or he did confess it in this Case Judgment pro Quer. Cro. â—l p. 723. Cardinal and Hesket Cro. Jac. 381.1 Rolls Rep. 222 261. Hob. p. 91.3 Bulstr 55. Gold and Death 1 Leon. n. 344. f. 206. Cro. Eliz. 236. Tedcastle and Hallywel Though he confesseth yet it must be averred that he did embezil 2 Rolls Rep. 40. Vid. Cro. Jac. 488. Lee and Fidge The Contract or Indenture for having or retaining an Apprentice contrary to the Statute is void but if such Apprentice give Bond to deliver up a true and just account of Merchants Wares the Bond is good it being for a collateral matter the Bond is good and out of the Statute 3 Bulstr p. 179. Bennet and Benfield In some Cases it is Wisdom to pray the Court leave to discontinue the Suit otherwise the party would be utterly barred of his Bond Cro. Jac. p. 488. Lee and Fidge A Bond not to use a Trade in D. if good Vid. priâ— A Stranger is bound that such an Apprentice shall transport Waâ— make Accompts and pay Mony The Obligee reâ—th by Deed to the Apprentice and not to the Obligor By this the Obligation is saved if the Release be made before any Forfeiture aliter if after because the Obligation once forfeited cannot be saved by any Release made to a Stranger 3 Leon. p. 45. Anonymus Though an Infant may voluntarily bind himself Apprentice yet neither at Common-Law nor by Stat. 50 Eliz. a Covenant or Obligation of an Infant shall bind him if he misbehave himself the Master may correct him or Justices punish him Cro. Hill 5 Car. fo 179. Gilbert and Fletcher The Condition was of three parts 1. If he well served the Plaintiff 2. If he duly accounted 3. If he should make satisfaction in three Months after notice Breach is that upon account he was found 60 l. polish Mony in arrears which he converted to his own use and so not well served him and good for it is a Breach of the first part for every part is several by it self Cro. Eliz. p. 830. Cutler and Brewster Condition was that if an Apprentice turned over should wast the Goods of his Master the Defendant would pay what the Master is dampnified and plead Nul damage The Plaintiff sets forth Breach in wasting Goods no notice need to be given to the Defendant If any one undertakes for a third person he must answer for him at his peril and the particulars of the Goods wasted need not be set forth but say to such a value 1 Keb. Hill 14 15 Car. fo 467 471. French versus Paitoâ— Condition to teach and employ his Apprentice in his House and Service in the Art of Chirurgâ— for eight years The Master sends him a Voyage to the Indies The Defendant pleads he did it for the â—ter instruction of his Servant The Plaintiff 〈◊〉 mâ— and Judgment pro Quâ—r That the Defendant could not send his Apprentice out of England except he went with him but to any other part of England he may 1 Bulstr p. 67. Covenâ—ry and Weedal 1 Rolâ— Abr. 427. sect 2. Id. Case C. as Executor of C. port Det sur Oblig vers S. the Case was The Testator had put himself Apprentice to S. for seven years and S. bound himself to pay to his Apprentice his Executors c. 10 l. at the time of the
332 Condition to pay Rent 189 Bond of Covenants for Reparations 197 Where a Recital in a Condition shall be an Estoppel 384 Of Recognizances in Chancery 266 Recognizance for Bail 267 Of Recognizances for the Good Behaviour 309 310 311 Recognizance to appear and answer for Felony 313 Release pleaded to Bonds of Covenants 202 Release pleaded to Bonds 417 One may not release a personal thing as an Obligation on a Condition subsequent 418 A Possibility not to be released 422 Where it shall be said a Covenant and not a Release 423 What amounts to a Release in Law of the Debt as by Intermarriage or making Executors 473 478 Release by an Infant Executor 359 Retraxit a good Bar 420 Of Repugnant Conditions 90 Request to do a thing within one Month after he shall be requested how construed 123 Not before Request to be performed 125 Where Request is necessary 164 Action against a Receiver or Servant 367 S. SEaling of Obligations 27 Seals broken off a Bond and non est factum pleaded 433 Bond from Under-Sheriff to High-Sheriff 50 Of Sheriff's Bonds 67 Explaining Stat. 23 H. 6. c. 6. 68 The Sheriffs Return upon that Statute 71 What Obligations are void by that Statute and what not in respect of the persons to whom made and in what Courts 73 to 77 Pleadings on Sheriffs Bonds 80 Bond to be a true Prisoner 88 Bond to be a true Prisoner for Fees ibid. Statute for performance of Covenants not to be preferred before a Bond 2 Of Statutes and Recognizances Of Statute Merchant and of the Staple 254 The manner of making them 255 By whom acknowledged and how 257 Before whom taken 258 Of Actions brought on Statutes and Recognizances 259 Of Scire Fac. and Process 261 Declarations on Statutes 262 In what Courts taken and sued 264 Sureties Vid. Counterbonds 214 Condition to surrender Copyhold Lands 222 To satisfie embezilled Goods 224 Not to continue Suit 234 Scire Fac. on Bail Bond 269 Suits on Obligations 355 Per Bodies Politick ibid. Per Joint Obligees 356 Per Baron and Feme 357 Per Alien ibid. Per Executor or Administrator 358 Against Executor or Administrator 361 Against Baron and Feme 363 Against Joint Obligors 364 Against a Servant or Receiver 367 Bond where suable 368 T. TEnder and Refusal pleaded 425 426 Time of Payment or Performance 116 Time convenient given 124 Traverse 36 367 386 Condition that a Tradesman shall not use his Trade 48 49 Condition to do things belonging to a Trade who shall do them 236 Tryal Issue on Bonds of Covenant 205 Bond where tryable when made beyond Sea 453 Or at another place of Payment in the Condition 455 Joining Issue on Payment 461 On a Collateral point 462 Bonds in Trust 419 423 V. BOnd 's void by Statutes of Usury and good Learning of usurious Contracts 59 60 61 62 Variance on Bonds of Covenants 199 Variance between the Original and Declaration 376 Variance in the Names and Sum 376 378 Variance in the time of Payment 380 Tender uncore prist pleaded 430 Venue 453 455 Verdict 463 Condition to pay Mony on a Voyage 139 W. COndition to pay on Warning 137 When Warning ought to be given of the Action brought if it be to appear within eight days warning 23â— Condition to reap and carry away Corn over the usual way 237 Of Witnesses to a Bond 27 Words written in a Bill after the In cujus rei testimonium how to be taken 12 Conditions concerning Wives 135 229 Conditions concerning Wills and Legacies 239 A Will cannot release a thing created by Deed and so discharge Creditors 422 THE LAW OF Obligations and Conditions The Nature of an Obligation and with what respect it stands in the Eye of the LAW AN Obligation is taken in the Common Law for a Bond containing a Penalty with a Condition for payment of Mony or to do or suffer some Act or Thing c. And a Bill is a single Bond without a Condition Co. Lit. 172. a. How they differ farther vide infra Tit. Bill It s not a Debt simply by the Obligation but the performance or breach of the Condition makes it to be a Debt for the Obligation is guided by the Condition Yelv. pag. 192. 1 Brownl p. 109. Neal and Sheffield A single Obligation is taken most in favour of the Obligee but an Obligation with a Condition is taken most in favour of the Obligor 10 H. 7. o. 16. It s a Debt presently upon the sealing and delivery it is debitum in praesenti though solveur dum in futuro It is a chose in Action Therefore if a Bond be made for payment of Mony to a Feme Sole Feme takes Husband and dies the Debt due upon the Bond becomes not a Debt due to the Husband but to him that administers Stiles Rep. 205. Cowley and Lockson Nov 149. Norton and Glover A Bond is to be paid before a Statute for performance of Covenants not broken 5 Rep. 28. Harrisons Case When none of them were nor ever perhaps shall be broken such possibilities shall not bar present Debts Cro. Eliz. p. 467. A Bond for a long continuing Duty will not hinder payment of a Legacy 2 Keble 759. Davis Case It is a Debt where the Obligation is at the time of the decease of the Obligee and not where the Obligee inhabits and accordingly shall be accounted bonae not abilia 1 Sanders 274. Cro. Eliz. Byrons Case By grant of omnia bona ontalla felonum Obligations do pass by the Kings Grant but by a particular Persons Grant of omnia bona catalla Obligations do not pass 1 Keble 417 467 497. Corporation of Southampton against Richards 1 Siderfin 142. mesme Case If a Man grant to J. S. all his Goods and Chattels in such a Box and in this Box are Obligations there the Obligations pass by reason of the special Reference exprest by the Grant Yelv. p. 69. Chanels Case Two Executors to J. S. one Executor had a Bond wherein A. B. was bound to their Testator he in satisfaction of his own proper Debt to C. D. by word dedit deliberavit the Obligation to C. D. and dies the Plaintiff being surviving Executor brings Doâ—e against C. D. per three Justices the Executor may give away the Instrument as well as release a Debt but is ascribed to the Deed before the sealing it s a good part if after sealing it s a Condition per Crew Bulst 3. p. 302. Tompson and Butchor As for Declarations on Bills Obligatory and Pleadings see in their proper places In respect of Obligors Obligees I shall consider Obligors What persons may make Obligations By what Name Who are bound though not named What persons may or may not make Obligations EVery natural Person or Body politick not prohibited by the Law may bind themselves But some persons are incapacited by the Law to bind themselves and some Obligations are void and others only voidable If a Monk make an
upon Debt upon a Bill of 6 l. 13 s. 4 d. and upon Over after the In cujus rei Testimonium this Clause was added in nature of a Proviso Provided that the said 6. l. 13 s. 4 d. is not to be paid until such an one hath had a Recovery in such an Action or Suit which he hath hanging against the Plaintiff upon a Bond of 200 l. conditioned for saving harmless or hath made an end of the said Suit Conclusion was dat' iisdem die anno and all this upon Oyer entred of Record Defendant pleads no end was made of the said Suit and so the time of payment not yet come The Plaintiff replies a composition of 20 l. in discharge of the said Suit and Issue pro Quer ' per Curiam the 20 l. may be given in satisfaction of the said Suit though not of the Obligation This Proviso is part of the Bill for it expressed the time of payment of the 6 l. 13 s. 4 d. If the Proviso be no parcel of the Bill then it is in nature of a Condition Per Dodderidge Its parcel of the Bill and the words In cujus rei c. are not necessary to a Deed. If it be put in and subscribed a Devastavit in him Cro. El. 478 496. Kelsook and Nicholson By what words an Obligation may be made and what shall be good and what not In respect of False Latin or English The Frame of the Obligation As to Faux Latin or omission THE Law doth make a reasonable and favourable construction of Mens Deeds and Conveyances and will support them as much as it may according to the intent of the Parties but it abhors Non-sense Repugnancy and Insensibility and will reject any thing which introduceth Incertainty and Confusion upon which no solid Judgment or weighty Authority can be founded I shall briefly lay down two or three Rules or Advertisements contained in our Books about the construction of Faux Latin in Obligations and then come to particular Cases Faux Latin shall abate a Writ for that the Party may purchase a new Writ but it shall not destroy an Obligation for the Party cannot have a new Obligation when he will 9 H. 7.16.10 H. 7. Yelv. p. 194. in Dodsons Case 1 Brownl Rep. 110. so in James Osborns Case 10 Rep. 133. Faux Latin nor Faux English shall not make void a Bond or other Deed when the meaning of the Party appeareth An Obligation shall not be avoided for vicious Writing or Incongruity the Bond was Johem A. without a dash yet good and the Declaration upon it was Johannes H. Cro. Car. p. 418. Downs and Haithwait There are two principal Things contained in an Obligation 1. The Parties 2. The Sum in which one Party is bound and when both these are sufficiently expressed to the Conusance of the Judges as the Obligor and Obligee are well named and the Sum well expressed or easily without straining understood to be the intent and by such words by which the Party doth intend to bind himself it shall serve if it be well executed Yelv. p. 193. Brownl Rep. 110. Dodson and Keyes and therefore in that Case tenerie firmit obligarie was held good so if a Bond be Obligamus me haeredes c. it shall be good One is bound in Triginti libris for Triginta its good Rolls Abr. â— p. 146. Taylor and Thorp in sexigint pro sexagint yet good 2 Bulstr 241. 1 Rolls Rep. 47. Hob. p. 20. Marshall and Jolly Septuagent for septingent was holden to be good septua being easily understood for septem and the Condition was for payment of Mony less than the Penalty Hob. p. 116. Yelv. p. 95. 2 Rolls Abr. 147. Walter and Piggot If a Man is bound in sexingentis for sexcentis libris this is a good Obligation for sexingent is good Latin 2 Rolls Abr. 147. A Bond was made in Italian and it was sessanta libris for sexagint and good Cro. Jac. 208. Hob. 19. Parker and Kennedy A Man is bound in trigintata for triginta yet it s good Hob. p. 18. 2 Rolls Abr. 147. Loggins and Tetherton by the Statute to be bound and upon misbehaviour Remedy lies by Correction of the Master or the Justices Crook Hill 5 Cor. fo 179. Gilbert and Fletcher The Plaintiff had paid Mony for the necessaries of the Infant and took Bond in double the sum its void otherwise if he had taken Obligation for the very Sum Crook Hill 45 Eliz. fo 920. Aileff and Archdale If the Bond be of excessive value the Infant may traverse absque hoc that it was for necessary Apparel and the Plaintiff must reply specially and shew the Bond to be suitable to the price of the things Quâ—r If the Jury ought to find in such case non est factum 1 Keb. M. 14 Car. 2. f. 416 423. Russel and Leâ— An Infant submits himself to an Arbitrament its voidable for he may wave it if it be to his prejudice during his Minority but if he do any thing which amounts to an Agreement at his full age it shall bind him Noy pag. 93. Stone and Knight The Bond beareth date when the Defendant was within Age but it was sealed and delivered at full age The time of making the Bond shall be when the Bond is sealed and not when it bears date 1 Brownl Rep. p. 3â— Debt on Bond dated 10 June and delivered the 18th of the same month the Defendant pleads by Protestation it was delivered the 18th day absque hoe that at that time he was of full age Noy p. 34. If an Infant make an Obligation and being 〈◊〉 upon it an Attorny without Warrant suffers a Judgment by non sum informatus if he were within age he shall have a Writ of Error if he were not he shall have a Writ of Disceit against the Attorny but no Audita Querela Winch p. 114. Ashly and Collings Non compos mentis IF a non compos mentis seal a Bond he shall not avoid it himself 4 Rep. 124. Beverleys Case For no Man of full Age shall by Plea stultifie himself but privy in Blood as Heir or privy in Representation as Executor or Administrator shall plead the disability of him Ibid. By Body Politick THEY must be named by the true Name of their Corporation and yet if the essential part of a Corporation be named it is sufficient in an Action as ad respondend ' Majori Burgensibus de Lyn Regis in Com' N. and found they were incorporated Majores Burgenses Burgi de Lyn non per aliud per Cur ' the omission of the word Burgi shall not bar the Plaintiff 1 Brownl Rep. 57. Major and Burgesses of Lyn against Pain By what Names bound IF a Man bind himself in a faux Sirname he shall be estopped to avoid this so if by a faux Proper-name 3 H. 6.25 b. None can make an Obligation or other Writing by a contrary name of Baptism Administrator of Elianora brings
time it is adjudged that he must conclude to the Country Et issint nient son fait de hoc ponit c. 3 Keb. 26 30. Forth and Fletcher Edwards and Webb ib. p. 142. Manning Bucknal contra Per Hale An Escrow may be given in Evidence on non est factum as well as Suspension on nil debet in Manning and Bucknal's Case 3 Keb. 142. If a Man be obliged to perform things in such a Deed it is no Plea to say he delivered this as an Escrow c. issint non est factum 1 Rol. Rep. per Cook 84. in Fletcher and Tarrer's Case Sealing THE Plaintiff declares that the Defendant per scriptum suum obligatorium concessit se teneri c. without saying sigillo suo figillat and good in the Common Bench for there the Presidents are so Delivery is never alledged so neither is it necessary to alledge the Sealing When he saith per Scriptum suum obligatorium all necessary Circumstances are intended to concur Crook Eliz. p. 738. Penson and Hodges Witnesses ONE ought not to be allowed to be a Witness to prove an Obligation or other Deed which he takes in the name of another For if he might be so admitted this is on the matter to suffer him to prove a Deed or Bond made to himself Stiles Pract. Reg. 221. Obligations are either Single called a Bill Joynt Joynt or Several Bill A Bill penal is called a single Bond and a Bill may be without a penalty In Debt on Obligation no Oyer being demanded it is intented a single Bill As to the Frame of the Bill and by what Words and in what Form it shall be good I have shewed before in Title The Frame of Obligations Now I shall set down some Cases as to Declarations and Pleadings on Bills A Bill Obligatory written in the Plaintiffs Book and the Defendants Hand and Seal to it is good Crook Eliz. p. 613. Fox and Wright I acknowledge my self to owe and be endebted to J. F. and W. S. in the sum of 91 l. 1 s. 8 d. to be paid the first of Novemb. following for which payment to be made I bind my self to J. S. in 100 l. Qu. Whether F. ought to bring the Action for the 100 l. or both of them for the 91 l. 12 s. 8 d. Crook Jac. 291. Foxal and Sands versus Corderoy A Bill was made in this manner Memorandum That I Will. Jethro do owe and am indebted to Edmond Hamond in the Sum of Ten Pounds for the payment whereof I bind my self c. In witness and after the In Witness it was thus subscribed Memorandum That the said Will. Jethro be not compelled to pay the said 10 l. until he recovers 30 l. upon an Obligation against A. B. c. And in the Count no mention was made of this Subscription but this appears when the Defendant prays Oyer of the Bill the which was then entred verbatim on Record Upon which the Defendant demurs because it is not mentioned in the Count it being a Condition precedent aliter of a Condition subsequent But per Curiam this which is after in witness is not part of the Deed but may be a Condition or Defeasance and so need not be contained in the Count but then the Defendant ought to have pleaded so and not demurred for this makes the Bill conditional Judgment pro Quer. 2 Brownl 97. Hamond and Jethro Bill of 68 l. with Covenant to pay it when such Bills be stated c. the Covenant being in the same Deed works as a Defeasance 2 Keb. 624. Holday and Otway Debt for 40 l. upon a Bill Obligatory and declares that the Defendant by his Bill dated c. confessed himself to be indebted to the Plaintiff in 20 l. solvend at Michaelmas next following ad quam quidem solutionem he bound himself in 40 l. and for Non-payment of the 40 l. the Action brought The Declaration is ill because it is not therein alledged that the 20 l. was not paid at the day for if otherwise the 40 l. was not due for it is not an Obligation with a Condition Crook M. 1 Car. 515. Bains and Brighton 1 Rolls Abr. 414. M. 14 Car. Mesme Case Danes and Brett But in Stiles p. 23 Car. B. R. Debt on a Bill Penal and Verdict pro Quer. It was moved in Arrest of Judgment that the Plaintiff shewed not that the Defendant did not pay the Mony at the day limited in the Bill but only saith non solvit c. 2. He declares the Defendant was bound to pay such a Sum legalis monetae and doth not say Angliae the Court over-ruled both Exceptions and the Plaintiff had Judgment Bill of 70 l. to be paid on demand it is a duty presently and there needs no actual demand Cro. Eliz. p. 548. Cap and Lancaster If the Plaintiff declares generally that he often requested c. and the Defendant demur to the Declaration per Cur. he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good demurrer because a special demand was in the Bill and no special demand alledged in the Declaration 1 Brownl Rep. 56. On a collateral promise to pay mony on demand there must be a special demand but between the Parties it is a debt and sufficiently demanded by the Action Aliter if the Mony be to be paid to a third person or where there is a penalty 3 Keb. 176. Ashenden's Case Debt on Bill to pay 50 l. on demand and on Non-payment the Defendant to pay an 100 l. Action is brought for the 100 l. the Defendant pleads there was no demand the Plaintiff demurs per Cur. the Action is a demand for the 50 l. but no cause to forfeit the 100 l. the Defendant should plead tender of the 50 l. uncore prist But where the Condition of an Obligation is to pay on demand that is a distinct deed from the Bond and there is no Title to the Forfeiture without demand But the debt here of 50 l. is not lost by not demanding therefore in Bar the Defendant must say uncore prist Judgment pro Quer. 3 Keb. p. 577. Ramsey and Rutter Debt on a Bill penal with these words To be paid as I pay my other Creditors The Plaintiff declares generally that he was indebted to him in 5 l. solvend upon Request The Defendant demands Oyer of the Bill and it was entred in haec verba and pleads an insufficient matter upon which it was demurred And this Exception was to the declaration for variance from the Bill for per Cur. he ought to declare specially according to the Bill Judgment for the Defendant Crook El. 256. Bright and Metcalfe The Defendant demands Oyer of the Bill by which it appears the Defendant and two others are bound The Defendant demurs per Cur. pro Quer. The Defendant ought to have pleaded two others sealed the Bill Obligatory who
Marriage of W. N. Id. ibid. 462. A man is bound to H. to pay him 1000 l. after that he had married his Daughter and afterwards he married her and brought Debt upon this Bond and it was not averred that he had given Notice to him of the marriage but demanded the Mony Here is no need of Notice the Request seems to imply Notice P. 2 Car. B. R. Hodges and Moore If I am bound to be Attendant upon you at every time that you shall come to the Manor of D. I am bound to take Notice when you come at my peril 8 Ed. 4.1 b. Condition was where the Obligor is Lessee for years of the Obligee of certain Lands if he render back the possession of the Land at the end of the term to the Lessor his Heirs and Assigns upon request then c. and after the Lessor assigns over his Reversion the Assignee at the end of the term requests him to render back the Possession to to him He is bound to do this without any Notice given who is Assignee 1 Rol. Abr. 465. Linghen and Paine Condition to pay the Damages which shall be recovered by J. S. against him there needs no Notice 1 Rol. Abr. 468.3 Condition was to pay the Second day of May at the Defendant's House giving Thirty days warning Defendant pleads the Plaintiff did not give thirty days Warning The Plaintiff demurs First Because no Notice is requisite but surplusage the day and place of payment being certain without it Secondly If Notice be necessary the Obligor must give it to which the Court agreed 3 Keb. 222. Johnson and Muller Condition of Obligation is to acquit of several Bonds entred into c. Defendant pleads performance Plaintiff replies He was sued and retained and Attorney c. Defendant demurs for that the Plaintiff had not alledged to him particular Notice of the Suit per Cur. particular Notice is not requisite in this case because he hath taken upon him to acquit him Siderfin p. 442. King and Atkyns Where by common Intendment the thing to be paid or done cannot lye in the conusance of the Conizor there Notice is requisite A Man is bound to pay an 100 l. two Months after A. returns from Rome He ought to give Notice of his Return before A. can have an Action on this Bond for he may land at Newcastle or Plimouth Agreed per Cur. in More and Hodges p. 2 Car. B. R. If I am bound to enfeoff such persons as the Obligee shall name he ought to give Notice to me whom he will name 8 Ed. 4. Arbitrement 15. Vide pluis sub titulo Who to do the first Act. Who is to do the first Act. WHere the Obligor is to do such an Act by the direction of a Stranger he ought to procure the Stranger to give the direction Lit. Rep. 13 14. Vide suprà sparsim Kelw. p. 53. a b. One is bound to carry all the Timber in such a place before such a time and lay it in such a place by the direction of a Stranger he ought to procure the Stranger to give the direction Condition to give such a Release as the Judge of the Prerogative Court shall direct Defendant pleads Dr. L. was Judge of the said Court and quod idem Judex nec devisavit nec appunctuavit aliquam relaxationem c. secundum formam c. it s no Plea for the Judge is a Stranger to the Condition and the Condition is for the benefit of the Obligor and the performance thereof shall save his Bond he hath taken upon him to perform it at his peril and he ought to have procured the Judge to have devised it and directed it Otherwise if it had been as the Obligee or his Counsel should devise 5 Rep. 23 b. Lamb's Case Condition to levy a Fine to the Obligee he is not bound to levy it if the Obligee doth not sue a Writ of Covenant against him 5 Rep. Palmer's Case 127. 1 Rol. Abr. 458 5. 5 Rep. 22 b. Halling's Case Condition is A. shall deliver to B. a certain quantity of Hops well pick'd and that B. shall have election of them out of 204 Bags of Hops of A. of his own growth B. ought to do the first Act i. e. he ought to require A. to shew him the 204 Bags for he cannot make election without view of the 204 Bags which are in A's custody 1 Rol. Abr. 466. Brook and Booth versus Woodward March 24. id Case Condition that the Obligor being a Parson shall resign to the Obligee within a certain time for a Pension as they shall agree The Obligee must agree and tender a Deed of this to the Obligor before he is bound to resign Q. 14 H. 4.18 b. cited in 5 Rep. 21. b. What things will excuse the performance of a Condition and what not Act of God Vide supra Act of Law supr Act of the Obligee supr Acts of a Stranger REgularly If the Condition be to be performed by a Stranger and he refuse the Obligation is forfeit for the Obligor hath taken upon him that the Stranger shall do it or accept it Condition is that the Son shall marry the Daughter of the Obligee if the Daughter refuse yet the Condition is broken 1 Rol. Abr. 452. 5 Rep. 23 b. Lamb's Case A. and B. submit to the Arbitration of C. by Bond. C. awards A. to pay 10 s. to B. who tenders this and B. refuseth The Obligor is not excused for B. is not a meer Stranger but is privy 22 Ed. 4.25 b. cited 1 Rol. Abr. 452. Q. I take the Law to be otherwise Condition to assure a Copyhold to A. and B. his Wife who are Strangers to the Obligation for the Life of C. and the Obligor at the request of A. surrenders this to A. to the use of such persons as he shall nominate this is not any Performance For A. who is a Stranger may not dispense with or alter the Agreement but to do as limited in the Condition 1 Rol. Abr. 457 T. Stile and Smith Defendant is bound that his Son that is a Stranger to the Bond shall seal a Release He must seal it at his peril and shall not have time to consult it or demand it to be read if he be not Lettered himself 2 Rep. Manser's Case Suits upon Obligations How they are to be brought In respect of the persons who bring the Action against whom it is brought Action brought by a Body Politick THey must be named by the true Name of their Corporation yet if the Essential part of a Corporation be named it is sufficient in an Action As ad respondend ' Majori Burgensibus de Lyn Regis in Com' N. and it was found they were Incorporated Majores Burgenses burgi de Lyn non peraliud nomen Per Cur. The omission of this word Burgi shall not bar the Plaintiffs 1 Brownl Rep. 57. Mayor and Burgesses of Lyn versus
Release to the Obligor dated the first of March and delivered the first of June by which he releaseth all Actions ab origine mundi until the date of the Release Per touts Justices the Obligation is not released Cro. Eliz. p. 14. Sir William Druries Case T. J. Doth acknowledge himself fully satisfied and discharged of all Bonds Debts or Dues whatsoever by T. O. this acknowledgment by Deed is in Judgment of Law a Release of all Bonds tho' the word Discharge is not properly said of the part of Obligee but of the Obligor 9 Rep. 52. b. Hickmots Case Debt on a Bond not forfeited at the day of payment being not then come the Defendant Pleads a Release and found against him in Arrest of Judgment it was adjudged for the Plaintiff for the Defendant did not take advantage of it as he might but waved it and pleaded a collateral matter which was found against him Cro. Eliz. 68. Frishi Case Debt on Bond dated the 24 of June 9 Cor. The Defendant pleads that the Plaintiff the 22 of Feb. 10 Car. Released to him all Actions and Demands which he had c. to the day of the date thereof The Plaintiff demands Oyer of the Release which was a Release of all Actions unto the 14 of January before the date of the Release for this misprision the Plea was adjudged ill Cro. Car. 426. Dyer and White A Man may not release a personal thing as an Obligation upon a Condition subsequent but the Condition will be void because a personal thing once suspended is extinguished perpetually but a Man may release it upon a Condition precedent for there the Action is not suspended until the Condition performed 1 Rols Abr. p. 412. Barkley and Parkes adjudged on Demurrer Where the Release was of an Obligation with a Proviso that he who releaseth this might enjoy 120 l. due by J. S. to the Obligor at a day to come then after which the Court adjudged a Condition precedent because the 120 l. was not due at the time of the Release but at a day to come 1 Rols Ab. 415. Mesme Case In Debt on a Bond of 200 l. for payment of 104 l. at a day on Oyer and Entry of the Bond and Condition The Defendant Pleads the Plaintiff did Release praedictum scriptum Obligatorium by the name of an Obligation in 200 l. for the payment of an 100 l. It s not a good Plea tho' it was averred there was no other Bond made by the Defendant to the Plaintiff for tho' a greater sum includes a Lesser as to tender yet the Debt and Duty is entire and therefore cannot be discharged by a Release of a lesser Sum Allen p. 71. Chace and Gold T. G. Covenants with another that B. A. a Stranger shall pay to A. a Stranger and the Covenantee 10 l. per Annum A. the Stranger takes Buck to Husband who releaseth the payment he cannot Release it for this was not any Debt or Duty in Buck or his Wife they had nothing in it nor remedy but for non-payment the Covenantee shall have an Action of Covenant Rols Rep. 196. Quick and Harris Bond taken in the name of the Plaintiff as Trustee for the younger Brothers from the elder Brother Conditioned to pay younger Brothers Portions The Defendant pleads a Release of all Actions Suits and all Debts on the Plaintiffs account Per Cur. it must be intended of all Debts whereof he hath the sole disposition and so he had not here Judgment pro Querente 2 Keb. 530. Stokes and Stokes Debt on Obligation Conditioned to perform Covenants in a Lease for years The Defendant pleads Conditions performed The Plaintiff assigns a Breach of non-payment of Rent The Defendant to this rejoyns a Release of all demands and per Cur. the Rent is not released by this being a Rent Executory and not a sum in Gross and Judgment pro Querente Siderfin Hen and Hanson Two are bound joyntly and severally a Release to the one Obligor is a Discharge to the other but a Release to an Executor of a joynt Obligor is void Cro. Car. 551. Dennis and Paine 1 Keb. 936. Scot and Littleton The Defendant pleaded that he was bound in the Bond simul cum R. G. to whom the Plaintiff had released all Actions and demands the said first of May which was the date of the Obligation the Plaintiff by Replication shewed that after the Obligation Sealed by R. G. he released to him and that afterwards the same day the Plaintiff Sealed the Bond This Release per Cur. doth not discharge the Defendant Cro. Eliz. p. 161. Mannings and Townsend Two are sued joyntly and severally the Obligee brings Action against the one and makes a Retraxit of his Suit Q. if this Retraxit is in nature of a Release and so if pleaded it be a Bar to Sue the other But in Cro. Jac. 211. Beechers Case it s an absolute Bar had it not not been for other faults in the entry Cro. Car. 551. Dennis and Paine March 95. Mesme Case Two are bound Obligee releaseth to one provided that the other shall not take benefit of this Release it s a void proviso Lit. Rep. 191. Debt on Bond the Defendant pleads a Release of all Actions and Suits in Bar. The Plaintiff demands Oyer and an exception of one Bond was therein contained The Defendant replies that was the Bond in Suit and that the sum excepted and the person are all one the Defendant demurs for Actions and Suits being released serve to no purpose the Obligation being excepted Per Cur. the Obligation it self being excepted all Actions and Suits concerning it are also excepted Cro. Eliz. 726. Brook and Wheeler The Defendant pleads a Release and sets it forth c. to be fully satisfied all Bonds Debts and dues c. and that he the Obligee is to deliver all such Bonds as he hath yet undelivered to T. O. the Obligor except one Bond of 40 l. yet unforfeited which is for the payment of 22 l. and wherein the said T. O. and R. O. his Brother stand bound to him and saith that he ought not to be barred for the Obligation of 40 l. so excepted and the said Obligation hic in Curia prolat ' are one and the same Resolved that the said exception shall extend to all the Premisses and not only to the clause of delivery But by the Plaintiffs confession in his Replicacation it appearing the Bond excepted was joynt and he bringing it against the Defendant only hath abated his own Writ 9 Rep. 52. Hickmots Case Release of an Obligation bearing date the same day and the Release is of all c. usque ad diem datus this doth not discharge the Obligation 2 Rol. Rep. p. 255. Green and Wiloox The Plaintiff and Defendant submitted themselves to Arbitrament and it was Awarded that there should be a Release made of all Reliefs Duties and Amerciaments and this Release pleaded in Bar to Debt
Rowel and Roo The Court seemed in doubt tho' the Secondary said it was in mia ' generally Cro. Jac. 420. Ashmore and Ripley Precedents are both ways 2 Keb. 704. Mortlock and Charlton Judgment in Debt where the demand is in the debet detinet is to recover Debt Damages and Costs of Suit and the Defendant in mia ' but if the Defendant denies his Deed then a Capias pro Fine issues out 1 Brownl p. 50. The Earl of L. pleaded non est facium and found against him The Judgment was ideo Capiatur and good tho' he be a Peer of the Realm for a Fine is due to the King and none shall have Priviledge against him Cro. Eliz. 503. Earl of Lincoln against Flower Condition If Henry and Robert H. pay c. The Defendant Robert pleads solvit ad diem and found against him and Judgment pro Querente quod recuperet debitum damna against the said Robert praed ' Henricus in misericordia where it should have been Robert for Henry was no party to the Record this was ore tenus assigned for Error and it being a misprision of the Clerk it was amended Cro. Car. 594. Pelham and Hemming The Defendant confest the Action and it was entred non potest dedicere actionem quis non solvet Per Cur. he having confest the Action the words quin non solvet are not material but surplusage and the Plaintiff had Judgment Cro. Eliz. p. 144. Long and Woodliff The Defendant pleads per minas the Plaintiff saith he did it spontanea voluntate and Traverseth the minas and at the Nisiprius the Defendant cognovit actionem non potest didicere but that he made it at large which is to a Plea per duress But per Cur. in regard it is entred quod cognovit actionem it is not necessary for him to acknowledge the point in Issue and that which comes after the the cognovit actionem is but surplusage Cro. Eliz. p. 840. Brown and Holland Debt against Baron and Feme on Obligation on made to the Wife dum sola On non est factum and found pro Querente Judgment shall be Capiantur for both Cro. Eliz. p. 381. Perey's Case The Plaintiff declares upon a Bill quod reddat ti imum dolium ferri deliberand within such a time and on non est factum pro Querente Judgment was quod Querens recuperet dolium ferri vel valorem ad damna c. and upon this a Writ Issues ad distringend ' the Defendant quod reddat praedictum dolium ferri vel valorem ejusdem si non reddat dolium tunc per Sacramentum inquiratur quantum idem dolium valet And before any return of this Writ of enquiry the Plaintiff takes out a Capias upon the Judgment Its Error 1. because the the Judgment is in the Disjunctive it ought to be quod recuperet dolium ferri si non valorem inde as in detinue for the Plaintiff is not to have Election which he will have 2. The Judgment is not perfect before the Writ returned and so nothing certain to ground a Capias or other Execution on Yelv. p. 71. Paler and Bartlet versus Hardyman In old times after Judgment given in Debt the Obligation was demanded because the Duty was changed into another Nature but since Writs of Error and Attaints have been so frequent the Judges thought it dangerous to Cancel the Deed 6 Rep. 46. Higgins Case Execution IN Scire fac ' on Judgment in Debt upon a Bond Course of the Rings-Bench is never to recite the Term of the Judgment given aliter in the Common-Bench 1 Keb. Tr. 13 Car. 2. fo 104. Hatton and Jackson A Writ of Error is no Supersedeas to stay Execution without Special Sureties to pay the Condemnation Mony Cro. Jac. 350. Goldsmith versus Lady Platt The Action was laid in Comberland in Debt on Bond and Judgment to Recover against Administrator The Plaintiff cannot bring a Scire facias in Westmorland but in the same County where the first Action was laid Hobart p. 4. Musgrove and Wharton Two are bound in an Obligation joyntly and severally and the Obligee Sues one of them in the Common-Pleas and the other in the Kings-Bench and a Capias against him in the Kings-Bench and took him in Execution and after took Elegit against the other and had Lands and Goods delivered in Execution as he might the other who was in Execution by his Body had an Audita Querela and was delivered and because the Judgment in that case must be that he be Discharged of the Execution he shall never be taken again tho' the Land taken in Execution be Evicted Hob. p. 2. Q. tho' in Elegit the pernancy of the profits be Executory yet it s a present Interest and so a Satisfaction 1 Rolls Rep. â— Cowley and Lydiatâ— If Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath Judgment to Recovery a joynt Execution ought to be sued against both But if the Suit were by one Original and several Praecipe's Execution may be sued against any of them 1 Leon. 288. agreed per Cur. 1 Rols Rep. 44. Bâ—nks Case A. and B. are joyntly and severally bound to C. C. took-out a Process against them by several Praecipe's and had two several Judgments and took out two several Executions of one Test viz. Fieri facias against A. and Ca. Sa. against B. Q. if the Writs are well awarded here the Fieri facias was Executed for all and therefore no Ca. Sa. shall Issue out Winch Rep. p. 112. Holts Case If two are bound joyntly and severally to me and I Sue them joyntly I may have a Capias against them both and the death or escape of the one shall not discharge the other But I cannot have a Capias against one and another kind of Execution against the other because tho' they be two several persons yet they make but one Debtor when I Sue them joyntly But if I Sue them severally I may sever them in their kinds of Executions But yet so if once a very Satisfaction is had of one or against the Sheriff upon an escape of one the rest may be releived upon an Audita Querela Hobart p. 59. in Fosters Case One of the Obligors was in Execution by Ca. Sa. and the Sheriff voluntarie permisit ad Lurgum This was pleaded by the other Obligor Judgment pro Querente for the Execution against one is no Bar but that he may Sue the other and tho' he escaped so as the Plaintiff is entitled to an Action against the Sheriff yet that shall not deprive him of his remedy against the other aliter if he had pleaded the Sheriff c. by the License or Command of the Plaintiff Cro. Car. 75. Whittacre and Hamkinson Two are bound joyntly and severally in an Obligation one was Sued and taken in Execution and afterwards the other was Sued and taken
made for Re-payment of the principal although not expressed within the Bond it had been an usurious Contract 1 Leon. 36. Crook Jac. 252. Fountain and Grimes Debt sur Bond of an 100 l. dated 12 July with a Condition for the payment of 54 l. at the end of six Months The Defendant pleads the Statute 21 Jac. of Usury The Plaintiff replies he lent the 50 l. for one year and that the Defendant should pay 8 l. for the forbearance for a year and by the Scriveners mistake it was made payable at half a years end and he being illiterate and not knowing thereof accepted the said Bond. The Defendant rejoins the Lending was only for half a year and that he was feign to pay 8 l. for it for that time and traverseth that on the said 12th of July that he should forbear it for one year The Plaintiff demurred Bar ill because he saith not corrupte agreeat And per Cur. this Allegation may well be made against the words of the Condition for it is the shewing of the true Agreement which was according to Law And the Rejoynder is not good because he makes the day thereby to be parcel of the Issue which ought not to be but he ought to have traversed the Agreement only Crook Car. 501. Jones 396. Nevison and Whitly Debt sur Bill The Plaintiff declares the Defendant 20 Apr. 1633. by his Bill became bound to him in 7 l. to be paid 21 Apr. 1634. and if default payment was he granted to pay 3 s. 4 d. for every month it should be in arrear The Defendant pleads that upon the lending of the 7 l. to be paid at the end of the year it was corrupte agreed to pay 3 s. 4 d. ut ante Had it been well pleaded it had been good for it is not averred that the Agreement was to pay 3 s. 4. d. for every Month pro lucro interesse diem dando solutionis nor doth he aver the words of the Statute that ultra 8 l. per cent shall be taken for Usury Jones p. 409. Swales and Bateman In Debt sur Bond made at S. the Defendant pleads the same was made upon a corrupt agreement at another place the Plaintiff replied that it was made bona fide and traverseth the corrupt Contract Vâ—nue was from the place where the corrupt Contract was laid to be and good and not from both places 2 Bulstr p. 34. Stanton and Barton Not from the place where the Bond was made 1 Leon. p. 148 149. Crook Eliz. 195. Kinersly and Smart The Condition if he pay for 100 l. 20 l. at half a years end if J. S. be then living and if not then but a less Sum than the Principal it is usurious he averred the 20 l. amounted to above 10 l. per Cent. for by the same reason he may add 20 Lives 2 Anders 15. 5 Co. Rep. 70. b. Clayton's Case More n. 497. Crook Eliz. p. 642. Button and Downham The Defendant pleaded quod corrupte agreeat fuit quod quer ' corrupte recepit and on Issue on them found for the Defendant in both and good for one is not material More n. 750. Johnson and Clark A. lent B. an 100 l. for a year and took an Obligation for 10 l. Interest Mony being then at 10 l. per Cent. payable 5 l. half yearly Per Cur. it is not Usury deins Stat. More n. 842. Worley's Case Noy p. 171. Cro. Jac. 25. Debt upon an Obligation of 100 l. the Case was Warnes was indebted to Alder in 100 l. upon an usurious Contract and Alder was indebted to Ellis the Plaintiff in 100 l. the just Debt for which Warnes and Alder were bound to Ellis The Defendant pleads this Usury between him and Alder to avoid the Bond. The Plaintiff replies Alder was justly indebted to him 100 l. and the Defendant and Alder became bound for this Mony and that he was not privy to the Usury between Warnes and Alder and good and the usurious Contract between Warnes and Alder shall not prejudice the Plaintiff Yelv. p. 47. More n. 981. Crook Jac. 32. Ellis and Warnes 1 Brownl 85. A Condition to save the Plaintiff harmless from one Obligation wherein the Plaintiff was bound as Surety for the Defendant to J. S. The Defendant pleads that the Bond to J. S. was upon usurious Contract and pleads the Statute sic non damnificat it is no Plea for he ought to save his Surety harmless and it shall not be intended the Surety knew of the usurious Contract Crook Eliz. 643. Button and Downhan 3 Leon. 63. Potkin's Case Contra Crook Eliz. 588. Robinson and May 2 Leon. 166. Basset and Browns Case If there be an Agreement after the Forfeiture of a Recognisance and the second Defeasance is for more than 10 l. per Cent. according to the principal Debt yet it is not deins Stat. 13 Eliz. but before the Forfeiture it had been otherwise and it is not for forbearance of the first principal but of the penalty Noy p. 2. Hollingworth and Parkhurst If a Debt be brought on an Obligation and it is found for the Plaintiff now the Defendant shall not have Audita Querela upon a Surmise that it was an usurious Contract for he might have pleaded that Noy p. 123. Cook versus Wall Or if he be condemned on nil dicit Crook Eliz. p. 25. Fisher and Banks If an Executor pay an usurious Bond other Creditors may make a Devastavit of it per Hob. p. 167. The Condition was to pay the principal Debt at the end of the year with Interest that should be then due It was a Quaere if any Interest should be paid and not resolved See there Noy's Argument of the odious Sin of Usury 2 Rolls Rep. p. 239 240. Sanderson and Warner The Defendant pleaded the Statute of Usury to a Bond and sheweth that a Ship went to fish in Newfoundland and that the Plaintiff delivered 50 l. to the Defendant to pay 60 l. on the Return of the Ship to Dartmouth and if the Ship never returned he should pay nothing it is not Usury Cro. Jac. p. 208. Sharply versus Hurrel 1 Brownl Rep. p. 52. The Defendant pleads the Statute of Usury made 6 Febr. 13 Eliz. whereas the Parliament began 2 Febr. 15 El. and that the Obligation was taken by Usury The Plaintiff replies it was not made for Usury contra formam Statuti modo forma praed and at Issue found for the Plaintiff yet a Repleader was awarded after Verdict for the Court held no Judgment could be given for the Plaintiff as well knowing there was no such Statute Cro. El. p. 245. Love versus Wotton Debt on an Obligation with a Condition of Bottomree to pay 130 l. when the Ship should return from Norwey The Defendant after Oyer pleads corrupt Agreement for lending 50 l. to pay according to the Condition The Plaintiff demurred Per Cur. it is not Usury 1 Keb. 711. Appleton versus Bryan In Debt
upon an Obligation after Oyer the Defendant pleaded an usurious Contract to receive more Interest than due to which the Plaintiff demurred because it is not said that at the time of making the Bond it was corruptly agreed and the other doth but incur the penalty of the Statute but doth not avoid the Security which the Court agreed 2 Keb. 525. Farrel versus Shaw The Defendant pleads an usurious Agreement that the Plaintiff lent the Defendant 10 l. and if the Ship return to pay him 3 l. The Plaintiff demurred Per Cur. this is good and bare bottomâ—â—â— 3 Keb. 62. Cham and Taylor The Defendant pleads Stat. 12 Car. 2. c. 13. and said the Contract was usurious but per Cur. being made after the Bond forfeited to receive Interest according to the penalty which was double the principal it avoids not the Obligation which was good at first but only subjected the taker to other Penalties 3 Keble 142. Redly and Manning The Defendant pleads 12 Car. 2. cap. to which the Plaintiff demurred because in recital of the Statute the word made is left out and Plea ill 3 Keble p. 618. Gilmore and Isles Debt on Obligation to pay 100 l. on Marriage of the Daughter and if either Plantiff or Defendant die before then nothing the Defendant pleads that of Usury and that this was for the Loan of 30 l. before delivered the Plaintiff demurred Per Cur. this is plain Bottom-ree 3 Keb. p. 304. Long and Wharton The Condition was If such a Ship go to Surat in the East Indies and return safe to London c. or if the Owner or the Goods return safe c. that the Defendant shall pay to the Plaintiff the Principal and 40 l. for every 100 l. but if the Ship perish by unavoidable casualty of Sea Fire or Enemies then the Plaintiff to have nothing Per Cur. this a good Bottomree Contract and not Usury and Bridgman took the difference between a Bargain and a Loan for where there is a Bargain de plano as here and the Principal hazarded this is not within the Statute of Usury aliter of a Loan which is intended where the Principal is not hazarded Siderfin p. 27. Soame and Green Cro. Jac. 252. Fountain and Grimes There are two Clauses in the Statute of Usury 12 Car. 2. If there be a corrupt Agreement at the time of the lending the Mony then the Bond and all Assurances are void but if the Agreement be good and afterwards he receives more than he ought then he forfeits the treble value Per Twisden Mod. Rep. 69. 1 Sanders p. 294. Ferral and Shaen Knight and Baronet and the Pleadings Debt on Bond 24 May 19 Car. 2. The Defendant prays Oyer of the Condition which is for 300 l. to be paid 25 Febr. 20 Car. 2. and upon Oyer the Defendant pleads in Bar quod post confection ' scripti obligatorii praed ' scil 10 May 20 Car. 2. The Plaintiff corruptive recepit de Defendente 30 l. pro differendo diem solutionis praed ' 300 l. pro uno anno integro videlicet c. quod est ultra ratam 6 l. per cent per annum contra formam Statuti per quod script ' obligator ' praed ' vacuum devenit hoc c. The Plaintiff demurs Plea is not good for the new Statute of Usury 12 Car. 2. cap. 13. saith That all Bonds for payment of any Mony for any Usury and here the Bond is not for payment of Monies upon Usury for it might be for a just Debt and the usurious Contract after shall not hurt it but its punishable 1 Sanders page 274. Ferrall and Shaen If in truth the Contract be usurious against the Statute no Colour nor shew of Words will serve but the Party may shew the same and shall not be concluded or estopped by any Deed or any other Matter whatsoever for the Statute giveth averment in such Case 5 Rep. 69. b. Burtons Case 5 Rep. 70. Claytons Case uncertain and yet Usurious and Burtons Case Moor n. 497. id Case The Defendant pleaded the Statute of Usury alledging that agreeatum fuit that the Plaintiff should have so much Mony pro donatione diei solutionis the Plaintiff traversed absque hoc quod agreeat ' fuit and found for the Plaintiff it was moved in Arrest of Judgment that the word corrupte was not pleaded in the Bar resolved the Bar was made good by the Replication and the Declaration being good Judgment pro Quer. Moor n. 624. Rogers and Jackson Where per Twisden the Contract was not Usurious but a Purchase of an Annuity for three years Siderfin p. 182. Rowe and Bellass Against Stat. 23 H. 6. cap. 10. Sheriffs Bonds void THE intent and reason of this Statute This Statute hath three notable Branches 1. Commandment and Authority to the Sheriff to let to bail such Persons as are mainpernable so Coroners Stewards of Franchises Bailiffs Keepers of Prisons and this is in affirmance of the Common Law 2. A restraining Branch that they shall not let to bail such Persons as be in their Ward by Condemnation Execution Capias Utlegatum or Excommunication Surety of the Peace and such as shall be committed by special commandment of the Justices and Vagabonds this is in affirmance of the Common Law 3. The third is to make Obligations taken in any other form than the Statute limits to be void That no Sheriff nor any of his Officers and Ministers aforesaid shall take or cause to be taken or make any Obligation for any Cause aforesaid or by colour of their Office but only to themselves of any Person nor by any Person which shall be in their Ward by the course of the Law but by the Name of their Office and upon Condition written that the said Prisoners shall appear at the day contained in the said Writ Bill or Warrant and in such places as the said Bill c. shall require and any Obligation taken by them in other form shall be void The design of this Statute is to provide against the Extortion of Sheriffs Plow Dive and Manninghams Case Explication del Statute THese words for any cause aforesaid refer to all that went before as well those contained in the Exception as in the first Branch therefore a Bond taken of a Man in Execution is void by this Statute and the Surety may plead this and the words colore officii make it void for he was taken by him in Execution as Sheriff and he lets him to bail which is not mainpernable Plow 69 80. Dive and Manningham This is a particular Law and ought to be pleaded Dive and Manninghams Case Plowd Parker and Weblyes Case in Siderfin and Siderfin p. 24. Allen and Robinsons Case Hobart p. 13. contra 3 Keble 320 361. Oakes and Cell The Statute is not as in Print that the Sheriff nor any de ses but any des Officers or Ministers of Justice 3 Keble 71. Munday and Frogat A Covenant is
l. the Obligation is forfeited 36 H. 6.9 b. So if the Condition be that if the Obligor do not pay to the Obligee at such a day 10 l. then the Obligation being 100 l. shall be void this is a good Condition and the Obligor may say in an Action on the Obligation that he did not pay the 10 l. and so avoid the Obligation for though the intent was not so yet the words were so and it ought to be adjudged upon the words 39 H. 6.10 cited 1 Rolls Abr. 419. A Condition if the within bounden J. B. shall happen to dye without Issue of his Body that then if the said J. B. by his last Will or otherwise in writing in his life time shall lawfully assure c. Per Dodderige this is repugnant and impossible he ought to dye without Issue first and then make the Conveyance but three Judges contra The Condition being made for the Benefit of the Obligor shall have Construction according to the intendment of the Parties and the intention was that a Conveyance shall be made by the Obligor in his Life by Will or otherwise so that they shall remain and be assured to c. Jones Rep. p. 180. Eaton and Laughter The Condition was if the Defendant pay the Plaintiff 2 s. per Week until the full Sum of 7 l. 10 s. be paid scilioet on every Saturday and if he fail of payment at any one day that then the Bond to be void The Defendant pleads he did not pay at such a day the Plaintiff demurs Per Cur. the Condition is repugnant and void and the Obligation single Siderfin H. 14 15 Car. 2. pl. 14. Vernon and Alsop Vid. Siderfin 456. Maleverer and Hawksby contra 1 Keb. 356 415 451. Vernon's Case A Condition impossible What shall be said a Condition impossible and the Effect of it IF the Condition of an Obligation be that the Obligor shall assign to the Obligee a Commission of Bankrupsy this is an impossible Condition and therefore void and the Obligation single for it is impossible to assign the Commission 1 Rolls Abr. p. 419. Street and Daniel If a Condition be quod debet pluere cras this is a good Condition for he hath taken it upon him at his peril and it is not impossible in it self 22 E. 4.26 If a Condition be that the Obligor shall go from St. Peter's Church in Westminster to St. Peter's Church in Rome within three hours this is impossible and void Co. Lit. 206. b. If the Condition be to save harmless the Obligee against a Stranger of an Obligation in which the Obligee stood bound to the Obligor this is a good Condition for although by no possibility the Stranger may have to do with this yet if he will save harmless against him it is within the Condition for it may be he had some fear of damage by him Quaere de hoc 1 Rolls Abr. p. 420. Where the Condition is impossible the Bond is single contrary where a man is charged by Act in Law 2 Leon. 189. in Wood's Case If the Condition of an Obligation or Feoffment be impossible at the time of the making it the Condition is void and the Obligation single because the Condition is subsequent but if a Condition precedent be impossible at the time of the making there all is void because nothing passeth before the Condition performed Co. Lit. 206. 1 Rolls Abr. 420. Casualties that hinder performance shall not excuse as Floods hindring appearance or being imprisoned Lit. Rep. 88 97 115. Melvin's Case 41 E. 3. double pl. 77. 2 E. 4.2 The Effect of a Condition impossible and how it shall excuse IF the Condition of a Bond or Recognisance c. be impossible at the time of the making the Condition the Obligation c. is good and single as a Condition to go to Rome in three hours the Condition is void and the Obligation is good So if I am bound in an Obligation with a Condition to stand to the award of J. S. provided that the Award be made before the 10th day of May next and provided I have warning 15 days before the 10th day of May and this Obligation is made the 9th day of May this is a void Condition So the Condition is that I will be non-suited in such an Action or assure such a piece of ground when in truth there is no such Action or piece of ground this Condition is void and the Obligation remains single and good But in all Cases when the thing to be done by the Condition of a Bond or Recognizance c. is possible at the time of the making the Condition and before the same can be performed the Condition becomes impossible by the Act of God or of the Law or of the Obligee in this case the Obligation is saved and the Obligation and Condition are both become void 1. By the Act of God If a Man be bound with a Condition that he shall appear the next Term in such a Court and before the day the Obligor dieth hereby the Obligation is saved Cro. Eliz. p. 277. Trop and Bedingfield Pleaded before the said Feast J. dies Judgment si actio a good Plea the Condition is discharged and the Obligation void 15 H. 7.2.13 If J. H. had been bound with him then he must have done it Qu. So the Act of God may discharge the performance of the Condition If he that is let to Mainprise be dead before the day his death excuseth the Mainpernors Water Plaintiff Perry and Spring Defendants 1 Rols Abr. p. 449. If A. recovers det vers B. en Bank and B. brought a Writ of Error and found Mainpernors to prosecute with Effect and after dies before the Return of the Writ this Act of God shall excuse the Mainpernors 1 Rolls Abr. tit Condition p. 450. Middleton and Twine If a Man becomes Bail for another in an Action and after the Plaintiff recovers against the principal and the Capias against him is returned non est inventus and this is filed and after the principal dyes before any Scire Fac. sued out against the Bail yet this shall not excuse the Bail otherwise if he had died before the Capias returned and filed 1 Rolls Abr. tit Condition p. 450. Timberly and Booth and Calf and Davies and Hobbes and Doncaster A Condition to pay yearly 40 l. during the Life of c. at the Feast of St. Michael and the Annunciation or within 30 days after every of the said Feasts the Wife dyes within the 30 days this shall discharge the payment due at the Feast before her death Crook Eliz. p. 380. Price and Williams If a Condition consists of two parts in the disjunctive in which the party had Election which of them to perform and both are possible at the time of making the Condition and the one becomes impossible after by the Act of God the Obligee is not bound to perform the other part for
Anders 1 Rep. p. 4. A Bond forfeited by the default of the Obligor as a Surrender of a Term Vid. Poph. p. 39. Forth and Holborough Crook Eliz. 313. mesme Case The Condition was whereas Dr. Drury had let Land to the Defendant for 17 years if the Defendant or his Executors paid to D. G. a Stranger 10 l. yearly during the said 17 years if he or his Assigns shall and may so long occupy the Lands The Defendant pleads that he within five years surrendred the Lands to Dr. Drury Action lies for tho he surrendred yet as to a Stranger his Estate is not determined Condition insensible and uncertain THE Condition was upon Oyer That whereas the above bounden c. shall and will c. where the same should have been if the above bounden c. shall and will c. this per Cur. is a void Condition the same being insensible and not compulsory as it ought and so the Obligation is single 2 Bulstr 133. Marker and Cross If an Obligation be made by A. to B. with a Condition that A. shall keep B. without damage against J. S. for 10 l. in which the Obligee is bound to the Obligor this Condition is void and the Obligation single So if A. be bound to B. with a Condition to save him harmless and doth not say for what or against whom 39 H. 6.10 1 Sanders p. 65. Butler and Wig. The Condition of c. is such That if c. then the Condition of this Obligation shall be void the last words are insensible and void and the Condition is good though these words then this Obligation shall be void had been left out 2 Sanders 78. Maleverer and Hawksby Condition Copulative A Condition that if the Plaintiff enjoyed such Land till the full age of J. S. and if J. S. within a month after his full age made assurance to the Plaintiff of the same Land that then c. The Defendant pleads J. S. is not yet of full age and because he did not answer whether he had enjoyed it in the mean time and the Condition is in the copulacive it was adjudged pro Querente Crook Eliz. p. 870. Waller and Croor If the Condition be in the copulative and it is not possible to be so performed it shall be taken in the disjunctive as if he and his Executors shall do such a thing this is in the disjunctive because he may not have an Executor in his Life so if he and his Assigns shall sell certain Lands 1 Rols Abridg 444. A Condition to make Assurance of Land to an Obligee and his Heirs and after the Obligee dies it must be made to his Heirs the Copulative shall be intended a Disjunctive 1 Rols Abr. 450 451. Horn and May. Condition Disjunctive IF a Man be bound to perform all the Covenants in an Indenture if all are in the affirmative he may plead generally performance of all but if any be in the negative he ought to plead to them specially and to the rest generally So if any of them are in the Disjunctive he may shew which of them he had performed and if any are to be done on Record he ought to shew this especially Doct. pl. 58. Co. Lit. 303. b. The Condition was if he paid the Rent reserved at the Feasts mentioned in the Lease or within ten days or within six months according to a later agreement that then c. The Defendant pleads the Indenture verbatim and that he hath performed all the Covenants Payments and Agreements contained in the Indenture secundum formam effectum Indenturae Conditionis praed it is ill for he cannot plead payment generally for he hath Election to pay it at which of those days he will Crook Car. 421. Horn and Barber If the Condition be in the disjunctive he need not to answer but to one generally and that is true where the Condition goes in defeasance of the Obligation Aliter where the Condition not being performed makes the Obligation good there the Disjunctive ought to be perform on both parts per Brian 4 H. 7.12 c. Upon intention of Marriage If Abigail survive J. S. and if she do not receive within two years after the death of J. S. 200 l. either by his last Will or by the Custom of London that then the Obligor shall pay to the said Abigail within one year after the said two years 100 l. Abigail survived J. S. and she died deins two years after his death per Cur. pro Def. For Abigail dying within the said two years it became impossible that this part should be performed by the Act of God and therefore the Obligor is not bound to perform the other part Jones 171. Wood and Bates Palm Rep. 513. mesme Case 9 El. Dyer Elin and Laughter 1 Rolls Abr. 451. Wood's Case Contra ideo vide The Condition when the Obligor should come to his Aunt he would enfeoff the Obligee or the Heirs of his Body and the Obligee when the Obligor came to his Aunt requested him to enfeoff him which the Obligor refused to do the Obligation is forfeited For though the Condition was in the Disjunctive and the Condition is always for the benefit of the Obligor yet because he was alive when the Obligor came to his Aunt and it was not possible to enfeoff his Heir therefore he ought to perform such part of the disjunctive that then was possible 21 Ed. 3.29 b. cited 5 Rep. 112. Mallorys Case A Condition if the Obligor pay so much Mony then the Obligation to be void or otherwise it shall be lawful for the Obligee to enjoy such Lands The Defendant pleads enjoyment the Plaintiff demurs adjudged pro Quer. the words concerning the Land being idle Siderfin p. 312. 2 Keble 131. Ferrers and Newton 117. Condition disjunctive Election of Obligor Obligee COndition if he paid to A. or his Heirs annually 12 l. at Michaelmaâ— and Christmas or paid to him or his Heirs at any of the said Feasts 150 l. then c. and demurs because the Obligor hath any time to pay one or other and that there is not any breach as long as he liveth so Action is brought before breach sed per Cur. though the Obligor hath Election yet he ought to pay the 12 l. yearly till he pay the 150 l. and because he hath not alledged payment of the one or the other the Bond is forfeited Cro. Jac. 594. Abbot and Rookwood and he hath lost his Election 2 Rolls Rep. 215. mesme Case Condition if Obligor before M. make a Leâ—se to the Obligee for 31 ans if A. will assent and if he will not then for 21 years c. A. will not assent the Lease for 21 years ought to be made before M. Dyer 18 Eliz. 347. 1 Rolls Abr. 446. Condition to enfeoff the Obligee of D. or S. Obligee hath Election 18 Ed. 4.17 b. So if it had been upon request or to pay 20
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
of the Sea excepted that the Defendant pay in 12 Calendar Months or if the the Ship be lost before the return or payment to be void the Defendant pleads navis amissa fuit the Plaintiff demurs for the meaning of this Bill of Adventure is a loss by dangers of the Sea Per Hales its sufficient for the Defendant to pursue the words of the Bond and the Plaintiff should have replied the Ship was lost by the Defendants default 2 Keble 768. Boddington and Wotton A Condition to pay Mony yearly during Life A Condition to pay yearly 40 l. to S. during his Life at the Feasts of St. Michael and the Annuntiation or within 30 days after every of the said Feasts S. dies within the 30 days this shall discharge the payment due at the Feast before his death Cro El. p. 380. Prices Case A Condition to pay yearly and every year to Thomas and Dorothy his Wife during their two Lives then c. the Husband dies the payment ceaseth the Interest is not in the cesty que vies the Husband and Wife are Strangers and the Interest of the Bond is in the Obligee Mod. Rep. p. 187. Slater and Carew In respect of the thing it self to be done A Condition to perform Covenants generally IF a Man Lease a Mannor by Indenture except such a parcel of Land and in the Indenture there are divers Covenants to be performed on the part of the Lessee and the Lessee binds himself in an Obligation to perform all Covenants and Agreements contained in one pair of Indentures and names the said Indentures and after the Lessee enters into the Land excepted this is no breach of the Condition for the Land excepted is not leased and it is so as if it had been named Dame Russel and Gulwel 1 Rolls Abr. Tit. Condition f. 431. If one makes a Lease for years of a Mannor excepting a Close rendring Rent and the Lessee is bound to perform all Grants Covenants and Agreements contenta expressa aut recitata in the Indenture if he disturb the Lessor in the occupation of the Close excepted he has forfeited the Obligation for when he excepts the Close the other is content with this and that the Lessor shall occupy this and then this is the Agreement and the said word contenta expressa recitata every of them go to the exception as well as to the residue Plow fol. 67. in Dive and Manninghams Case If a Man let for years rendring Rent payable payable at Michaelmas and Lady-day on Condition that if he does not pay at the said Feast or within 14 days after then to re-enter and the Lessee binds himself in an Obligation with Condition to perform the Covenants and Agreements of the said Lease the Lessee pays not the Rent at the Feast but within the 14. days yet the Condition is forfeited for that the Condition in the Lease is not parcel of the Reservation 1 Rolls Abr. Tit. Cond fol. 431. Middleton and Ratcliff The Condition of a Bond for performance of Covenants in an Indenture doth estop to say there is no such Indenture but it doth not estop to say there are no Covenants Mod. Rep. 15. Holloways Case Where an Action of Debt is brought upon a Bond to perform Covenants in a Deed and the Defendant cannot plead Covenants performed without the Deed because the Plaintiff hath the original Deed and perhaps the Defendant took not a counter-part of it the Court useth to grant Imparlances till the Plaintiff bring in the Deed and upon Evidence if it be proved that the other Party hath the Deed we admit Copies to be given in Evidence but in Qu. Imp. the Grant of the Advowson must be shewed Mod. Rep. p. 266. If I am bound to perform Covenants and the Covenants are in the affirmative if the performance of them be by Matter of Fact I may recite the Condition and plead generally that I have performed all the Covenants and shall not shew especially the performance of them as if I am bound to enfeoff the Obligee of c. and also that I shall give to him an Horse in Debt brought upon the Obligation I shall shew the Condition and shall say perimplevi omnes Conventiones and shall not shew the special matter of the performance as that I gave him an Horse at such a place c. but if the Condition be in the affirmative and the performance of this may be tryed by Matter of Record as if I am bound that I shall be non-suit in such an Action there I shall shew the performance of this especially but if the Condition be in the negative as that I shall not go to London before such a day I must answer to this in the negative 13 H. 7.19 b. 10 H. 7.12 b. vide plus A Condition to perform all Covenants comprised in such Indenture the Defendant pleads he had performed all the Covenants without shewing how per Cur. as to all the Covenants which are to be performed in the affirmative the Plea is good but where the Plaintiff is to be a Party to the performance as if I am bound to enfeoff you of two Acres in D. which you shall assign here I must shew how also where words are in the disjunctive it ought to be shewed specially and a Clause in the negative must be answered in the negative 16 H. 7.11 a. vide 26 H. 8.5 cont as to general performance pleaded Upon Oyer of the Condition the Defendant pleads Covenants performed and doth not set forth the Indenture which per Cur. upon Demurrer he ought and if he have it not he may move the Court and have a Copy thereof Per Twisden it hath been vexata quaestio heretofore who should set it forth 1 Keble 127. Walker versus Gibson 2 Keble 80. Anonymus The Court on an Affidavit by the Attorny that the Bonds are for performance of Covenants will order the Defendant to deliver a Copy of the Covenants to the Plaintiff that he may reply there are none broken but not else but by consent 1 Keble 653. Paschal and Jekel In Action of Debt the Defendant pleaded it was for performance of Covenants and that he hath performed all not shewing forth the Indenture to which the Plaintiff demurred the Court agreed he must set it forth 1 Keble p. 415. Lewis and Bull. Det sur Bond the Defendant pleads the Condition is to perform Covenants contained in a Pair of Indentures in which are contained divers Covenants and recites them which he had performed the Plaintiff demurs because he said not when he pleaded the Indenture hic in Curia prolat ' and Judgment pro Quer. and per Coke he might take advantage of this upon the general Demurrer without shewing cause for it is matter of substance 1 Rolls Rep. Duport and Wildgoose mesme Case 2 Bulstr 259. If in Debt sur Obligation with Condition for performance of Covenants in an Indenture the Defendant pleads performance generally this
performance of Covenants the Breach ought to be more precise and particular than Actions of Covenants because of the Penalty yet if what is material and the substance of the Covenant be alledged it may suffice as a Covenant was that the Defendant a Bayliff should not let at large any Prisoner that should be arrested without Licence of the Plaintiff an Under-Gaoler The Breach was that the Defendant had let at large at Westminster sans licence c. such an one who was arrested but shews not the place or time of the Arrest Per Cur. he need not the Escape being the material part of the Covenant Siderfin H. 12 Car. 2. f. 30. Jenkins and Hancocks Debt by a Brewer on a Bond to perform Articles against his Clark one was that the Defendant should deliver such Ale and Beer weekly as should be delivered unto him to such Customers as he had in his Charge and to receive the Monies due for the same and should accompt with the Plaintiff every Saturday weekly for such Monies he should receive for Breach the Plaintiff assigns that the Defendant did not account with him for such Monies as he had received on Saturday the 25th c. Verdict pro Quer. Judgment was arrested for the Breach was uncertainly alledged because the Plaintiff doth not shew the Defendant had any Customers in his charge or who they were or that he had delivered Ale or Beer to them or received any Mony of them Stiles p. 473. Arnold and Floid A Covenant that he and his Executors and Assigns would repair a Mill and alledgeth that the Mill was defective in Reparations and the Defendant his Executors and Assigns did not repair it Def. demurs because he did not alledge that he not his Executors or Assigns did not repair it for if any of them did repair it the Action lies not and per Cur. it is naught But upon motion of the Court the Defendant waved his Demurrer and the Plaintiff amended Crook Eliz. p. 348. Cole and How If the breach of the Condition of an Obligation be ill assigned the Verdict shall not aid this Default Sanders 2 part 179. Hele and Wotton Kerby and Hansaker there cited Though the Action be well brought upon the Obligation yet when it appears the Condition was for performance of Covenants there can be no cause of Action without some Covenant broken and so shall not have Judgment though he hath a Verdict Hob. 14. in Sir Daniel Norton's Case Disability wherein the Obligor hath disabled himself to perform the Condition IF a day be limited to perform a Condition if the Obligor once disable himself to perform this although he be enabled afterwards before the day yet the Condition is broken as if the Condition be to enfeoff me before Michâ—mas if before the Feast he enfeoff another yet the Condition is broken 21 E. 4.55 The Condition is if he permit and suffer all his Lands c. to descend remain or revert to such an one his Son immediately after his decease without any Act c. The Obligor â—ells parcel of the same Lands though he purchase them again yet the Obligation is forfeited Benlow n. 34. p. 9. Sir A. Main by an Indenture demiseth Lands to Scot for 21 years and covenants at any time during the Life of Scot upon Surrender of his Lease to make a new Lease c. and an Obligation to reform the Covenants Sir A. Main pleads in Debt upon this Obligation that Scot did not surrender Scot replies that after the said Demise Sir A. M. had accepted a Fine sur omisance de droit come ceo and by the same Fine grant and renders the Land to the Conisee par 80 ans Defendant demurs Per Cur. 1. Sir A. M. by the Fine levied had disabled himself either to take a Surrender or to make a new Lease and so hath broken his Covenant 2. Though the first Act was to be done by Scot viz. the Surrender and Scot may surrender if the term for 80 years be the Interest of a future term yet Scot shall have his Action without making any Surrender for after Surrender Sir A. M. cannot make a new Lease which is the Effect of the Surrender he hath disabled himself 5 Rep. 20. b. Sir Anthony Mains Case Poph. 109. Benl n. 121 125. So if he disable himself to perform it in the same plight as Feoffee on Condition to re-enfeoff grants a Rent-Charge marries a Wife c. this is a forfeiture of the Condition 44 E. 3.9 b. Coke on Litt. But if the Feoffee on a Condition to re-eneoff a Stranger and after another recovers the Land against him by default yet until Execution sued the Condition is not broken 44 E. 3.9 b. One promiseth to perform an Award which is that he shall after deliver an Obligation to another in which he is bound to him without limiting any time when this shall be performed If he bring Debt on the Bond and recover and after deliver the Obligation yet this is not any performance of the Condition for he ought to deliver this as it was at the time of the Award made Tr. 15 Jac. B. R. 1 Rolls Abridg. 447. Nichlâ— and Thomas If no time is limited if the Obligor be once disabled he is perpetually disabled 21 E. 4.54 b. Vid. Cases del Disability 1 Rolls Abr. 447 448. Conditions to perform particular Covenants To make Assurance TO make such Assurance as Counsel shall advise A Condition to make to the Obligee or his Assigns so good a Lease as Counsel shall advise and the Obligee appoints him to make a Lease to J. S. he must do it for it is not as shall be advised by Counsel Per Coke if the words were he shall make as good a Lease as Counsel shall devise he ought to have brought a Lease drawn by the advise of Counsel 1 Rolls Abr. 424. 1 Rols Rep. 373. Allen and Wedgwood To make such Assurance c. as the Plaintiffs Counsel shall devise it is not sufficient to plead he made such Assurance but that the Plaintiffs Counsel devised such Assurance which he had made Crook Eliz. 393. in Hutchinson's Case One covenants to make such Assurance c. as the Plaintiffs Counsel shall advise and he pleads performance of Covenants he cannot afterwards say Consilium non dedit advisantentum in Specot and Sheer's Case Crook Eliz. 828. The Defendant covenants to assure such Lands by such Assurance as by the Counsel of the Plaintiff shall be devised the Breach assigned in this the Plaintiff caused such an Assurance to be drawn and ingrossed and put Wax to it and required the Defendant to execute it and he refused The Defendant demurs per Cur. it is no Breach because the Plaintiff himself devised it Crook Eliz. p. 297. More versus Roswel On Covenant that before such a day he would make sufficient Estate of Lands to such value to the Plaintiff for term of his Life as by the Plaintiffs Counsel
it presently for the Covenant is peremptory 1 Anders p. 122. Case 117. Andrews and Eddon 1 Rolls Abr. 424. Wotton and Crook 2 Rep. Mansers Case The Condition is that he shall make a good absolute perfect Assurance in Fee of Copyhold Lands and after he renders this upon Condition of payment of Mony it is not any performance for the Assurance ought to be absolute so if it were to make farther Assurance if he make Assurance on Condition it is not a performance 1 Rolls Abr. 425. Risbon and Gayre It must not only be an absolute but an effectual Conveyance If a Man be bound to surrender a Copyhold to the use of A. and his Heirs on consideration of Mony if he surrender into the Tenants hands he must get it presented for it must be an effectual Surrender as if a Man be bound to make a Feoffment to me upon Request if I request him him to make a Deed of Feoffment with Letter of Attorny to B. to make Livery to me and he doth so this is a good inception yet if Livery be not made it is a Forfeiture of the Condition 1 Rolls Abridg. p. 425. Shan and Belby A Condition to make assurance of Lands to the Obligee and his Heirs and the Obligee dies yet he must make assurance to the Heir for the copulative shall be taken as a disjunctive 1 Rolls Abr. p. 450. Horn and May. Dubitat in Jones p. 181. Eaton and Laughter For it was the intent the Heir should take by descent and not by purchase A Condition to enfeoff two before such a day and one dies before the day yet he ought to enfeoff the other 1 Rolls Abr. 451. Horn and May. 5 Rep. 22. a. Benl n. 31. contra A Condition to give and grant to him his Heirs and Assigns The Defendant pleads he hath been ready to give and grant ill Plea for he must plead that he did it Aliter if the words had been as Counsel should advise 1 Brownl Kep 75. Chapman and Pescod Condition to enfeoff Lands of such an yearly value The Defendant pleads he enfeoft him of the Mannor of D. in Com. W. and of the Mannor of S. in the County of S. Cave Replication for it cannot be tryed 11 H. 7.14 One is obliged to assure 20 Acres of Land the Acres shall be accounted according to the Estimation of the Country where the Lands lie and not according to the measure limited in the Statute Cro. Eliz. p. 665. Some and Taylor One by Indenture bargains and sells to the Obligee all his Lands in D. and covenants that he will make farther assurance of all his Lands the Breach assigned was because he did not make farther assurance of those Lands and it appears by the pleading that the Bargainor had enfeofâ— the Bargainee before all his Lands there so as he had not any Lands at the time of the Bargain and Sale and if he then had not then the Breach is not well assigned and so held tota Curia But if one enfeoffs another of his Lands and afterwards bargains and sells them by name and covenants to make assurance he is bound to make assurance accordingly Crook Eliz. p. 833. Laâ— and Hodges The Condition was whereas the Defendant had granted an Annuity to the Plaintiff that the Defendant should make farther assurance to the Plaintiff for the enjoying thereof within one Month when he should be thereunto required the Month shall begin from the time of the Request Stileâ— p. 242. Wentworth's Case A Man by Deed indented bargained and sold Lands to another in Fee and covenanted by the same Deed to make him a good and sufficient Estate in the said Lands before Christmas next and afterwards before Christmas the Bargainoâ— acknowledged the Deed and the same is enrolled per tot Cur. by the Act the Covenant was not performed for he ought have levied a Fine or made a Feoffment c. 3. Leon. p. 1. Anonymus Condition of Covenant for quiet Enjoyment D. was bound to H. on Condition that H. and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleads the Surrender and that the Plaintiff entred and might have enjoyed the Lands The Plaintiff replies that after his Entry one G. entred upon him and ousted him Per Cur. Replication ill because he did not shew he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer Vaugh. p. 121 122. Hammonds Case The Defendant leased to the Plaintiff an House by the words of Demise and Grant which words import a Covenant in Law and the Lessor covenanteth that the Lessee shall enjoy the House during the term without Eviction by the Lessor or any claiming under him which express Covenant was narrower than the other and gave Bond to perform Covenants The Plaintiff grants his term over to a Stranger The Plaintiff assigned for Breach that one S. entred upon the Assignee and upon Ejectment recovered against the Assignee Debt was brought upon this Bond per Cur. by this Covenant in Law the Assignee shall have a Writ of Covenant and for this breaking the Covenant in Law the Obligation was forfeited but because the Plaintiff did not shew that S. had an ancient Title for otherwise the Covenant in Law was not broken therefore Judgment against the Plaintiff 4 Co. Rep. 80. b. Nokes Case Cro. El. p. 674. id Case If I. covenanteth with B. to enter into a Bond to him for enjoyment of such Lands and do not express what Sum he shall be bound in such a Sum as amounteth to the value of the Land 5 Rep. 78. a. in Samons Case The Defendant pleads performance of Covenants the Plaintiff alledgeth a Breach upon this Covenant that the Lessee should enjoy the Land without any lawful interruption or disturbance of the Lessor or his Executors and shews that the Executors entred upon him and ousted him and shews not any interruption for a just cause and adjudged good 1 Brownl 80. Ratcliffs Case Debt on Bond to perform Covenants the Covenant was for quiet enjoyment without let trouble or interruption c. the Plaintiff assigned his Breach that he forbad his Tenant to pay his Rent Per Cur. it s no Breach unless there were some other Act 1 Brownl p. 81 Witchcot and Liveseys Case Vide Moor n. 156. Broughton and Conrey Where the Defendant is not bound to warrant peaceable possession to the Vendee but only for Acts by himself done or to be done The Condition was If the Defendant warrant and defend an Ox-Gang of Land to the Plaintiff against J. S. and all others that then c. Resolved that the word defend shall be taken as a Defence against lawful Titles and not against Trespasses And per Anderson one Covenants to make a Lease of all his Lands in D. and in D. he hath as well Copyhold as Freehold Lands he is not by this Covenant to make a Lease of his Copyhold Land for
taken in Execution H. the other Bail gave him Security for the Mony and in consideration thereof the Plaintiff promised H. that he might take out Execution against the other Defendant and that he would not release him without the consent of H. whereupon H. procured him to be taken in Execution and he then moved the Plaintiff to discharge him who acquainted him with the promise made to H. at supra thereupon the Defendant made him this Bond and conditioned prout so he discharged him and H. brought an Action upon the Promise and recovered 150 l. damage and so damnificat the Defendant demurred Judgment pro Quer. this is a Breach for by the word damages is not only intended damages which arise directly by the Release but to any other collateral Act dehors as is this promise Hob. p. 269. Wilden and Wilkinson 1 Rolls Abr. 431. id Case vid. 1 Rolls Abr. 422. id Case Condition is to perform an Award which was That the Obligee staret acquietatus de qualibet materia contained in a Bill in Chancery which the Obligor had depending against him and that the said Suit shall cease and after the Obligor exhibits a new Bill in Chancery against the Obligee for the same matter and in the end of the Bill prays Process but never takes out Process thereon against him this is not any such molestation as shall be a forfeiture of the Condition for he is not at any damage by this P. 12 Jac. 1 Rolls Abr. 432. Freeman and Sheâ—n A. and B. are bound in an Obligation to perform certain Covenants contained in an Indenture and one is to pay Mony and C. covenants with A. and B. to save them harmless of all things contained in the same Indenture and after the Mony is not paid according to the Indenture by which the Obligation is forfeited yet C. is not bound to save them harmless of the Obligation for this is a collateral thing to the Indenture M. 5 Jac. 1 Rolls Abr. 432. Scot and Pope versus Griffin A Condition recites That the Plaintiff at the request of the Testator was bound in 2000 l. to the Commissioners of the Excise and if the Testator acquit and discharge or sufficiently save harmless from all Suits Troubles c. concerning the said Bond then c. the Defendant saith there were no Suits the Plaintiff replies there was a So. Fac. out of the Exchequer and he was forced to retain an Attorny and give him 3 s. 4 d. the Defendant demurs because no notice of the Suit is given to the Defendant per Cur. there needs no notice 2 Keb. 529 609 642. King and Atkins Cro. El. 613. Fox and Wright The Defendant is Security to the Plaintiff for payment of Mony as separate Maintenance to Williamsons Wife the Breach assigned is that Williamson brought an Action sur Case against the Plaintiff on his promise to pay so much if the Defendant now who was then Plaintiff would remit the rest It s a Cheat and the Defendant iâ— not bound to secure the Plaintiff 2 Keble p. 106. Campian versus Skipwith Counter-bond writ in a Book and good Cro. El. p. 613. Fox and Wright If the Condition be to save harmless from such a thing this doth not extend to Actions in which he might have lawful defence without the Obligor 2 H. 4.9 A Condition to save harmless from J. S. if J. S. after saith to him that if he will go to his House he will beat him by which menace he dares not go to his House about his Business the Obligation is forfeited 18 Ed. 4.28 To plead he had saved the Plaintiff harmless and not to shew how is ill Stiles p. 219. Shertliff vers Timberly Allen 72. Ellis and Box. If it be that from time to time he hath saved him harmless it s well enough Stiles p. 353. M. 1652. Bond and Martin But in Condition to save harmless from Escapes the Defendant pleads he had saved harmless but saith not how and the Plaintiff demurs generally Per Cur. its ill on special demurrer but aided by general demurrer 2 Keble 629. Henshaw and Warren 3 Keble 198. Fletcher and White To discharge and save harmless Qu. if any difference on Mansers Case 1 Keble 379. Morgan and Thomas In such Cases the Plaintiff ought to plead non damnificat for that he hath saved him harmless doth imply he was damnified Ibid. A Condition was to save the Obligee harmless of a Nomine poenae against M. To plead he had saved him harmless and not to shew how is not good had he pleaded non damnificatus in the negative it had been good Winch. p. 9. A Condition to keep a Parish harmless from a Bâ—stard Child the Defendant pleads he had saved the Parish harmless but shews not how the Plaintiff replied That the Parish was warned before the Justices of the Peace at the Sessions and was there ordered by Record to pay so much for the keeping of the Child the Defendant pleads nul tiel Record the Plaintiff demure 1. The Plea of nul tiel Record is a good Plea because an Order of Sessions of Peace is a Record 2. Judgment pro Quer. because the Defendants Bar is ill in that he hath pleaded in the affirmative and shews not how Non damnificatus had been good and it is not helped by demurrer it being matter of substance March 121. n. 200. Anonymus A Condition to save harmless from all Obligations which he had entred into for him the Defendant pleads quod exoneravit indempâ—em conservavit from all the Obligations and shewn not from what and yet good because there might be many and so to avoid perplexity of pleading and because he pleaded not quâ—modo exoneravit but generally the Plea was ill Cro. El. p. 916. Braban and Bacon A Condition to save the Parish harmless of a Bastard Child vide the Form the Defendant pleads non damnificatus the Plaintiff replies That the Defendant nor any other for the space of a month provided for the Child wherefore the Parish paid 40 s. for its Maintenance the Defendant rejoins he offered to maintain the Child at his own Charge and the Parish refused to permit him Et hoc paratus c. this rejoinder is ill because it is a departure 〈◊〉 he ought to have pleaded this first in his Plea 2 Sander … 〈◊〉 Siderfin p. 444. 2 Keble 219. Mod. Rep. 45. Richards and Hodges Counter-Bonds Sureties IF the Condition be to discharge another against J. S. of an Obligation wherein he is bound he ought to discharge him of the Obligation by Release or otherwise and it is not sufficient to save him harmless 22 Ed. 4.40 b. The Defendant pleads non damnificatus the Plaintiff replies the Mony was not paid at the daâ— per quod the Plaintiff became onâ—rabilis and d … st not go about his Affairs the Defendant rejoins that the Mony was tendered and refused absque hoc that the Plaintiff was
chargeable the Plaintiff demurs here need not be alledged any special damage but the saying he could not attend his Business is sufficient Judgment pro Quâ—r 3 Keble p. 336. Tâ—â—â— 26 Car. 2 B. R. Young and White A Condition to acquit discharge or otherwise save harmless of 12 Bonds entred into by the Plaintiff with the Defendant and of all Suits and Troubles which may happen thereupon after Oyer the Defendant pleads performance the Plaintiff replied he was sued and forced to retain an Attorny and that the Defendant licet sâ—â—pius requisitus had not acquitted him the Defendant demurs because the Plaintiff had not alledged pâ—â—ticular notice to him of the Suit Per Cur. he is not bound to give special notice Siderfin p. 442. H. 21 Car. 2. King and Atkins An Obligation made by J. S. ad majorem rei securitatem inveni J. D. fidejussorem and J. D. put his Seal to it this was his Deed Cro. P. 29. Eliz. B. R. Skidmore versus Van Stevan One is bound with another as his Surety jointly and severally they are both principals and neither Pledge nor Fidejussor for the other and one cannot have the Writ de plegiis atquietandis against the other for this lies not but where one is named expresly as Surety in the Bond Hob. 53. in Foster and Jacksons Case Dyer 370. B. was bound with K. for the payment of 200 l. to A. B. The Condition was If K. shall save harmless B. of all Suits Quarrels and Demands touching and concerning the said Bond of 200 l. then c. B. came to the place of payment at the day and perceiving no Person there present to pay the 100 l. for K. he to save the penalty of his Bond paid the 100 l. to A. B. and so brought this Action upon the Counter-bond and upon non damnificatus pleaded the Plaintiff replied and shewed all the special matter the Defendant demurred adjudged pro Quer. for it was harm to him and it s not needful for the Plaintiff to be arrested or sued And this Plea of non damnificatus implied that the Defendant had saved him harmless as by Release payment or otherwise Terror of Suit so that he dares not go about his Business is damnification though he be not arrested by Process 5 Rep. 24. Broughtons Case Capiaâ— issued out against a Surety is a damnification 2 Bulst 105. Reve versus Harris The Custom of London is if many are bound as Sureties if the principal fall of payment and one of the Sureties be sued upon the Obligation he may have a Writ de Contributione facienda against the other Sureties such a Writ was brought in London and removed in B. R. but it was remanded Moor n. 266 2 Leon. p. 166 67. Offly and Johnson The Book of Entries 160. One Surety may pay the Mony and have the Bond decreed to him in Chancery to make his advantage Latch 170. Dawson's Case The Surety cannot plead that the principal was kept in Duresse till he and the Defendant entred into the Bond though the principal might plead it for none shall avoid his own bond for the imprisonment or danger of any other than himself only Crook M. 5 Jac. fo 187. Huscomb and Standing 1 Brownl p. 64. Martel and Cobbâ— The Defendant in a Counterbond pleads that the Bond to J.S. wherein the Plaintiff was bound with him as Surety was upon usurious Contract and pleads the Statute isslâ— non damnificatuâ— no Plea for he ought to save his Surety harmless and it shall not be intended that the Surety knew of the usurious Contract Crook Eliz. p. 588. Robinson and May p. 643. Boulton and Downham Noy p. 73. 3. Leon. 63. Potkin's Case 2 Leon. 166. Basset and Pâ—oâ— The Stature saith All Bonds and collateral Assurancos made for the Payment of Mony lent upon Usury shall be interly void Counter-Bond here was not for the payment of the Mony lent but for the Indemnity of the Surety A Condition to save harmless in a Counter-Bond The Defendant paid not the Mony at the day this is a present Forfeiture of the Counter-Bond for he hath put the Plaintiff in danger of being arrested and it is a present damage 3 Bulstr p. 233. Abhors and Johnson 10 E. 4.27 28. The Defendant pleads he had saved the Plaintiff harmless The Plaintiff replied that the Mony was not paid and Process went out against him The Plaintiff rejoyns he had not any notice of the Damnification No good Rejoynder 1. The Defendant himself ought to take notice of the Act of a Stranger 2. It is a departure from the Bar 1. Sanders 117. Cutler and Southern Vid. the Pleadings If a Man be bound to preserve his Surety sans damage of an Obligation if he suffer the Obligation to be forfeited yet this is not any Damnification and by this the Counter-Bond is not forfeited cited in Freeman and Sheens Case 1 Rolls Rep. p. 7. Qu. de ceo The Defendant pleads that J. S. the Creditor sued the Plaintiff on the Bond and had Judgment but before Execution he delivered the Mony to the Plaintiff to satisfie it no Plea for by the Judgment the party is damnified and the Costs are not paid Crook Eliz. p. 396. Bothwright and Harvy 1 Rolls Abr. 432. Id. Case The Defendant pleads that at the day of payment he was going ad solvend and that the Plaintiff by Covin betwixt him and another Stranger caused the Defendant to be imprisoned until after Sun-set it is an ill Surmise and no Baâ— Crook Eliz. 6 2. Morris and Lutterâ— The Plaintiff declares that at the Request of the Defendant he became bound with a third person to pay Mony to J.S. at a day and the Defendant became bound to the Plaintiff with Condition that if the Defendant did pay the Mony to J. S. at the day for which the Plaintiff was bound and in the mean time should save him harmless then c. The Defendant pleads be caused the party with whom the Plaintiff was bound to submit himself to prison and that the Plaintiff was not damnifieth The Plaintiff denies not the Bar but says that a Latitat was sued out against him and so feared The Defendant demurs the Plea is ill and the other hath alledged an ill Breach he saith not he took a Lat. prout patet per Record the words in the mean time refer to the last words of the Condition Judgment pro Def. Stiles p. 356. Young and Petit. Mony prayed out of the Coroners hands by one who had paid the Debt as Surety 2 Keb. 400. Foster and Closon A Condition whereas the Plaintiff was obliged in such Obligations for the Defendant that if 〈◊〉 were charged or molested in his Body or Goods for those Obligations he would within a Month satisfie him for it The Defendant saith he hath paid him such a Sum for all his Charges within a Month no Plea for he ought to shew how the Plaintiff was molested and then he
Plaintiffs Executor dyed after the making of the said Bond and before the said Feast viz. c. The Plaintiff demurs and Judgment for the Plaintiff 1 Brownl Rep. 7â— Horn and May. In many Cases Endeavour shall excuse The Condition was to enfeoff Baron and Feme of Land if Baron die if he do it as near as he can it is good 15 H. 7.2 13. If there be an indifferent construction which may be taken two ways that way shall be taken which is most reasonable to make the Obligation to stand in force The Condition was that whereas the Defendant had granted an Annuity to the Plaintiff that the Defendant should make farther assurance to the Plaintiff for the enjoying thereof within one Month when he should be thereunto required Per Cur. the Month shall be after the Request and not within a Month after the date of the Bond Stiles p. 242. Wentworth versus Wentworth A Man shall be supposed by the Condition to do what properly belongs to him The Condition of the Obligation was that the great Bell of M. should be carried to the House of the Obligor in W. at the Costs of the Men of W. and there to be weighed in the presence of c. and of this the Obligor to make a Tenor to agree in tonâ— sono with the other Bells of M. In this Case the Obligor ought to weigh this for it belongs to his Occupation 9 Ed. 4.3 b. 1 Rolls Abr. 465. If a Man be bound to carry my Corn he must find a Cart so to mow my Grass he must find Instruments so to cover my Hall he is bound to find necessary Stuff 16 H. 7.9 A Man may be said to forfeit a Condition if he do what in him lies to break it or if he do such an Act which may consequently produce a Forfeiture though in strictness it be not broken by him A Condition not to devise a Lease to any person but to his Child or Children and he deviseth this to a Stranger the Executor never consents to the Devise yet this is a Forfeiture for he that had done all that was in his power to pass this by Will and put it in the power of the Executor to exeâ—ute it 1 Rolls Abridg. 428 429. Burton and Horton The Condition is that the Grantee of a Reversion shall not grant this over to J. S. If he grant the Reversion to J. S. by his Deed though the Lessee never attorn yet this is a Forfeiture Id. ibid. A Condition not to assign his I ease that so it may come to J. S. and after he assigns this to J. D. the Condition is broken for as much as by this means it may come to J. S. 1 Rolls Abr. 429. Cummin and Richardson Where a Condition of an Obligation shall be expounded by a matter debâ—rs The Condition was to save the Plaintiff harmless from all Actions and Damages that might arise upon the Release of the Defendant out of the Execution being then in Execution at the Plaintiffs Suit from all persons that might trouble him concerning the said Release The Defendant pleads the Plaintiff sued one N. for 100 l. and that he and Hart became his Bail and that the Plaintiff had Judgment against N. and the Bail and the Defendant was taken in Execution and thought the Plaintiff released him c. The Plaintiff replies and confesseth the Bail and Judgment but saith that Hart gave him Security for his Mony and the Plaintiff promised H. he might lay the Execution on the Defendant and that he would not release him sans consent of H. on which H. procured him to be taken in Execution and moved the Plaintiff to discharge him who aâ—quainted him with his promise to H. ut supra and thereupon the Defendant made him this Bond and so he discharged him H. brought an Action against him for Breach of Promise and recovered 150 l. damages and so he was damnified The Words are apparent to save harmless from some damage that might arise not upon the Release alone but upon some collateral thing besides the Release and yet by means and occasion of the Release Hâ—bart p. 269. Wild and Wilkinson Expositions of Words Sentences and References in Conditions During the Time THE Condition was whereas the Lord A. had deputed T. J. to be his Deputy Post-Master to execute the said Office from c. for the term of six Months following Now if the said T. J. shall and do for and during all the time that he shall continue Deputy Post-Master execute and pay such Mony c. Per Cur. the Condition refers to the Recital only whereby the Defendant was bound only during the six Months and no longer and the indefinite time shall be construed during the six Months 2 Sanders 413. Lord Arlington and Merrick Condition faithfully to execute the Office of and quarterly to make Accompt of all Monies by him received c. and pay all Monies by him received and do Accompt such times as he shall he reasonably required The Defendant pleads performance to all but the Accompt and for that he saith he was never reasonably required to do this Per Cur. this Clause being reasonably required goes only to the payment of the Mony bring the last antecedent and the Accompt is limited to be made quarterly Lit. Rep. 101. The King and Points Then living The Condition was if it happen the said J. M. to dye before the Feast of c. without Issue Malâ— of her Body by R. B. begotten then living that the Obligation shall be void The Defendant pleads post confectionum obligationis and before the said Feast the said J. M. dyed sans Issue Male of her Body then living The Plaintiff replies she had Issue H. B. and before the said Feast J. M. dyed the said H. B. then living and that H. B. dyed before the said Feast Per. Cur. the Plea is good the words then living shall not refer to the time of J. M. death but to the Feast mentioned in the Condition 1 Anderson Bold and Molineux Payments A Condition to perform all Covenants Payments and Agreements contained in a Deed Poll. The Defendant pleads the Deed Poll in haec verba in which was contained one Grant of Lands for 100 l. and 200 l. to be paid in which was a Proviso If the Defendant should not pay for the Plaintiff to one J. S. 40 l. at such a day the Bargain should be void The Defendant pleads performance of all Covenants the Plaintiff assigns a Breach in not payment of the 40 l. The Defendant demuâ— Judgment pro Defendente The word payment in the Condition shall have relation only to such payments mentioned in the Deed as is compulsory to the Defendant but this was not for the Defendant may if he will forfeit his Land 1 Brownl Rep. 113. Briscoe and King Condition to pay when the Kings Majesty shall be Restored by Conquest Accomodation or otherwise the difference
the first Scire Fac. for hereby the Plaintiff is put by his debt and the Executors may be insolvent 2 Keb. p. 127. Coopers Case Scire Fac. against B. and others as Bail for P. P. being Condemned and not rendring his Body to Prison Scire Fac. was brought against them upon this Recognizance they pleaded that P. such a day before the day in the Recognizance paid the Mony this is a good Plea in it self for the Recognizance as to them is but an Obligation upon a Condition upon which they might well plead performance but the party in the Scire Fac. upon this Recovery cannot plead it except satisfaction be acknowledged on Record for by nude payment he shall not avoid matter of Record Cro. Eliz. p. 233. Brunckhorns Case Cro. Eliz. 31. Ordway Manucaptors in Scire Fac. plead that the principal was taken by Capias and deteined till he paid the Mony payment is a good Plea but no place of payment being alledged its ill and Judgment pro querente 2 Keb. 577. Farrel and Sheen Mod. Rep. 14. Mesme Case Payment before the return of the Scire Fac. by the principal is no Plea yet before the Writ of Scire Fac. brought it is by the Bail Bail pleads payment by the principal before the Scire Fac. viz. the same day after Capias taken out it s no Plea nor saves the Recognizance 3 Keb. 349. Barford and Peel In Scire Fac. Bail pleads that the principal had entred himself before Tho. Twisden Justice c. in discharge of his Bail and the entry was Quod reddidit se in exonerationem manucaptorum hoc Paratus est verificare The Plaintiff demurs because it should be prout patet per Recordum Presidents are both ways Siderfin p. 216. Midleton and the Manucaptors of Silvester P. M. was Bail for the Defendant and before any judgment given the Plaintiff releaseth to P.M. all Actions Duties and Demands afterwards Judgment was given against the Defendant and upon his default Scire Fac. issues against P. M. who pleads the said General Release The Plaintiff demurs Per Cur. This Release shall not bar the Plaintiff for the Words of the Bail are conditional Scilicit si contingeret predict debita damna illa praefat querenti minime solvere aut se prisonae non reddere c. and it s not any duty certain till Judgment given and note diversity between a duty certain upon condition subsequent for this may be released before the day of the performance of the Condition and a duty uncertain at first and upon condition precedent to be made certain afterwards this in the mean time is but a meer possibility and may not not be released this Recognizance doth not create a duty presently but shall produce a duty after on a contingence 5 Rep. 70. Hoe and Marshal Audita Querela by the Bail after judgment against him for debt on Scire Fac. because he was within Age at the time of the Bail and by the Audita Querela he was discharged cited in Sir John Apsleys Case Cro. Eliz. 645. Yelvertons New Book of Entries p. 87. p. 155. Markam and Turner He cannot plead his Infancy to the Scire Fac. for this Suit goes in affirmance of the Recognizance and demands Execution of this at the day of the second Scire Fac. The Bail pleads nul tiel Record and then brings the Body of the principal into Court and prays that his Body may be taken in Execution Per Cur. if the Bail before or at the return of the second Scire Fac. bring in the Body of the principal his Body shall be put in Execution only but here they have pleaded and therefore if the party Plaintiff do not pray to have the Body in Execution he is not compellable to take him 2 Rolls Rep. 367. Cage and Doughty Second Scire Fac. is joint against the Bail Capias may issue out against one only for the nature of the Recognizance is not changed by the judgment in the Scire Fuc. brought upon this but that the Execution may be joint or several according to the Recognizance although the Scire Fac. was joint Siderfin p. 339. Gee versus Sir Francis Fane If three bind themselves jointly in a Recognizance Execution must go against them all and if they are bound severally there if the Scire Fac. be against all the Execution must be so too for by the Judgment they have made their election 2 Siderfin p. 12. Capias aginst the Principal and Judgment and after Scire Fac. against the Bail and Judgment thereupon the Plaintiff cannot take out one Execution of Scire Facias against ihe Goods and Chattels of the principal and Bail for there ought to be several Executions upon the several Judgments Stiles Rep. p. 290. Newton and Goddard Trin. 1651. Banc. sup Removal Error Hab. Corpus IN Scire Fae against Bail on removal of the principal by Error the Defendant pleaded the Writ of Error is yet depending this was on Bail below no Scire Fac. will be against the Bail especially out of an Inferior Court till the principal be determined Scire Fac. cannot be until Judgment be affirmed 3 Keb. 396 424. Caul and Bezar Debt brought in Inferior Court of Record and issue pro Quer. and Judgment given and had against the Manucaptors and Error brought in redditione judicii and the Record and Plea removed to this Court but not the Recognizance nor Judgment against the Manucaptors per Doddrige they have well done in removing only the Record and the Judgment against the principal and that they may well proceed to Execution and if judgment was not had against the Manucaptors after the Error brought then it ought to be removed by special Writ of Error 2 Rolls Rep. 494. Anonymus A. is Bail for B. Judgment in B. R. is given against B. B. sues Error in Exchequer Chamber there the Judgment is affirmed and Costs assessed A. shall be charged with the Judgment in B. R. but not for the Costs on the Writ of Error Noy p. 18. The Defendant was Bail in Inferior Court in Action of Debt Scire Fac. against him because the Principal did not render nor pay The Defendant pleaded that after the first Action brought and Bail found the Cause was removed by Habeaâ— Corpus and new Bail here accepted and afterwards the Cause was â—manded by procedendo and then Judgment given against the Principal The Question was if the old Bail be discharged by the Record removed Per Cur. If the Bail be here Recorded so as the Court is fully possess'd of the matter and the Term is past there the old Bail is absolutely discharged but if in the same Term the Record is remanded by procedendo it is as if it never had been removed and there is no Record of the removal thereof and the matter doth rest in the inferior Court Statu quo prius the first Bail is revived 2 Bulstr 287. Cro. Jac. 363. 1 Roll 64.
Obligations and Conditions and of avoiding them An Award was that the party shall pay unto a Stranger or his Assigns 200 l. before such a day the Stranger befor the day dieth and B. takes Letters of Administration Per Cur. the Obligor shall pay the Mony to the Administrator for he is the Assignee and so if the Assignes had been left out 1 Leon. p. 316. Mony awarded to be paid to a Stranger if the Stranger will not accept of the Mony the Obligation is saved 3 Leon. 62. Norwich and Norwich If the Award be ill of your own shewing then you have no cause of Action and so you cannot have Judgment though the Defendants Bar be not good Stiles 136. Wood and Clemenee If the Plaintiff shews the Award but assigns no Breach he shall not have Judgment though he hath a Verdict for the Obligation is not for any Debt for this is guided by the Condition which goes in performance of a collateral thing viz. of an Award And though the Defendant had not answered to the Breach if it had been assigned yet the Court ought to be satisfied that the Plaintiff had cause to recover otherwise they shall not give Judgment and though the Verdict is found for the Plaintiff yet this fault in the Replication is matter of Substance not aided Yelv. p. 152 153. Barret and Fletcher An Obligation to perform a void Award is void Latch 207. 10 Rep. 131. b. If a Man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Mony he may have his Action of Debt for the Mony and declare upon the Award and afterwards he may have another Action upon the Obligation for not performing the Award per. Câ—r 1 Brownl Rep. 55. If one countermand the Authority of his Arbitrator as he may he shall forfeit his Obligation 8 Rep. 82. a. Vynior's Case A Condition is annexed to the Award as paying so much Rent yet Debt upon Bond lies 〈◊〉 Non-payment Cro. El. 211. Parsons and Frowd A Condition to stand to the Award of J. S. The Defendant pleaded the said J. S. had arbitrated that the Defendant should pay to the Plaintiff 10 l. and he said he had paid it to the Plaintiff Wise who had received it The Plaintiff demurs and Judgment pro Quer. Payment to the Wise not being good 1 Leon. 320. Frowd and Bâ— Recognisance to stand to the Arbitrament of A. and B. who awarded that Robins should have the Land yielding and paying 10 l. per ann Rent is behind The Plaintiff brought Debt The Defendant pleads the special matter and concludes Judgment if the Plaintiff shall have Execution against him Per Cur. it is ill for here is not any Execution of the same Debt but an Original Action of Debt port and he ought to conclude Judgment si actio These words yielding and paying 〈…〉 not a Condition for it s not knâ— to the Land by the Owner himself but by a Stranger sâ— the Arbitratoâ— But it is a good clause to make the same an Article of the Arbitâ—ment which the Parties are bound to perform upon the penalty of the Recognisance and this Rent shall not cease by Eviction of the Land 3 Leon. p. 58. Treshal and Robins An Award was that the Defendants Brother J. for whom the Defendant was bound to perform the Award should pay the Plaintiff 30 l. viz. 20 l. at the Annunciation and 10 l. at Michaelmas after and shewed that the said J. had payd the 20 l. and as to the 10 l. he pleaded that J. died before the Feast of M. The Plaintiff demurs Per Cur. the Bond is forfeited because the Sum awarded by the Arbitrament is now become a Duty as if the Condition of the Bond had been for payment of it 2 Leon. f. 155. Kingwel and Chapman Debt on Bond to stand to an Awards and the Defendant pleads Nil debet On Demurrer it was excepted the Action is grounded on the Award and therefore the Award ought to have been brought into Court which is not done for ought appears here Per Glyn It is not necessary to produce it in Court though he must plead the Award in Writing for the Action is not brought upon the Award but upon the Submission for the Award is but the Inducement and the Court hath nothing to do with the Award but to see whether it be in writing or not For a Deed that I confess must be produced in Court that the Court may judge whether it bind the party or not and you your selves have here set forth the Award in Pleading In all Cases where things cannot be demanded but by Deed the Deed must be produced but here is no Deed in this Case for an Arbitrament under Seal is no Deed it is but a Writing under Hand and Seal Stiles p. 455. Dod and Herbert Condition to stand to the Arbitrament of J. S. If the Defendant pleaded Nullum fec arbitriâ— the Plaintiff by Replication ought to shew the Arbitration in certain and assign a Breach for the Plea of the Defendant is so general it doth not offer any Issue therefore the Plaintiff in his Replication ought to lay a Breach or else there appears no cause of Action to the Court and the offer of the Issue comes from the Plaintiff Award is if J. pay to D. 10 l. then D. shall assure to J. the Mannor of Sale D. pleads in Debt upon this Bond J. paid him not 10 l. it is a good Replication for J. to say he had paid him 10 l. without saying over that J. D. had not assured the Mannor for the Plaintiff had given a direct Answer to the special matter alledged in Bar Yelv. 24. Baily and Taylor But this was after a Verdict Vid. 1 Sanders p. 103. Hayman and Gerrard The Plaintiff ought to assign a Breach in his Replication because the Defendants Plea Nul tiel award is general but if in such Case the Defendant plead a Release of all Demands after the Arbitrament by which he offers a special point in Issue there it sufficeth if the Plaintiff answer to the Release or other special matter alledged by the Defendant without assigning a Breach 1 Brownl Rep. 89 90. Condition to perform an Agreement already set down by J. S. The Defendant pleads no Agreement was made ill Plea Aliter had it been to perform all Agreements 1 Rolls Rep. 430. King and Perseval Condition to perform an Award they awarded the 24th of March the Defendant to pay at Mich. following 20 l. The Defendant pleads the Plaintiffs Release of all Actions and Demands made to him the 10th of Apr. Per Cur. the Release is no Baâ— of the Plaintiffs Action Aliter if had been a Debâ— or Duty presently Cro. Jac. 300. Tynan and Bridges In Debt on Bond to perform an Award Defendant pleads no Award Plaintiff sets it forth which was that the Defendant should pay Mony and they give mutual Releases to the time
Paine On a Bond made to a Bishop Parson Vicar Master of an Hospital or other sole Body Politick the Executor or Administrator shall have this Action Except in the case of the Chamberlain of London where it goes to the Successor and so in the case of a Corporation aggregate Dean and Chapter Mayor and Comminalty the Successor shall have the Action 4 Rep. 65. Fulwood's Case Cro. Eliz. 480. Bird and Wilsford Per two or three to whom the Obligation is made IF Obligation be made to three and two bring their Action they ought to shew the third is Dead Siderfin p. 238. Osborn and Crossborn But in Whelpdales Case This advantage was waived on non est factum pleaded Also the Obligation being Obligamus nos it shall not be intended the others did not Seal but if they had not the Count should have been on writing by three whereof two did not Seal 1 Keb. 840. Mesme Case If two or three are bound joyntly and one dies the Executor of him that is dead is altogether discharged And the Action may not be brought against the Survivor and the Executor Siderfin p. 238. Osborns Case Debt versus Excutor Plaintiff profert joynt Obligation without saying jam defunct Q. if this be saved upon a General Demurrer If the Executor had been Plaintiff in Debt upon such Obligation he ought to have said jam defunct to entitle himself to this his Action Siderfin p. 272. Osborns Case Obligation made to three to pay Mony to one of them they ought all to joyn in the Suit for they are all as one Obligee and if he which ought to have the Mony dye the Survivors ought to Sue tho' they have no interest in the sum contained in the Condition Yelv. p. 177 Rolls and Yate By Baron and Feme THe Husband after she Marries must joyn with her in the Suit where the Bond was made to the feme dùm sola fuit for if cause of Action arise before Coverture tho' but Trespass where damages are only recoverable they must joyn 1 Keb. p. 440. Hardy and Robinson Upon such Bond made to the Wife dùm sola fuit by the Husband only Judgment staied 37 Ass 11. If Bond be made to a Feme-covert and the Husband disagree in Action brought the Obligor may plead non est factum for by his disagreement the Obligation is no Deed. 10 Rep. 119. Whelpdales Case On Bond made to Baron and Feme Feme Administers and brings Debt upon the Bond as Administratrix she dies before Judgment her Executors cannot bring Debt upon that Obligation for she hath waved it and that personal duty being a thing in action may well lie in Joynture between Baron and Feme aliter of other persons Noy p. 149. Norton and Glover By Alien ON Bond made to an Alien Enemy he may have an Action for personal things More n. 852. Walford and Marsham F. makes a Bill of Debt to A. by which F. acknowledges to have received of one P. 40 l. to be equally divided between A. and B. and to their use Per Cur. B. need not joyn in the Action tho' Tenants in Common ought to joyn in personal Actions for they are several Debts as 20 l. to one and 20 l. to the other Yelv. p. 23. VVhorewood and Shaw By Executor or Administrator AS to Suits brought by or against Executors that more properly belongs to another Title in our Law and the Pleadings stand altogether upon other Reasons Yet I shall say something here so far as refers to Obligations as to Payment Satisfaction Release Gist of the Action and the like Two Men made an Obligation joyntly for Debt the principal made his Surety his Executor who pays the Mony generally Q. if he paid it as Executor or as Obligor 3 Leon. p. 197. Carter and Marten B. As Executor brought Debt upon Obligation made to his Testator the Defendant Pleads he paid a lesser sum to the Testator and that he did accept thereof in full satisfaction per Rolls you may Traverse either the payment or the acceptance of the Mony but more proper to joyn Issue on the payment Stiles p. 239. Bois and Cranfeild Executor port Debt on Bond in the debâ—t detinet and had Judgment by Default but it was Reverst because it ought to have been brought in the detinet only Stiles p. 278. Lydall and Lister Administrator Sues J. S. upon Obligation and had Judgment and after the Administration is revoked yet the Plaintiff took the Defendant in Execution And upon motion the Execution was adjudged void and the second Administrator shall not have Execution for he is no party to the Record Yelv. p. 83. Barnhurst versus Sir Charles Yelverton Six Executors brought Debt named in the Writ after three were summoned and severed the other three bring Debt upon a Bond the Defendant Pleads non est factum and found against him Per Cur. there needs no mention of the other three who were severed Cro. Car. 420. Price and Parkhurst Debt port by Executors upon an Obligation the Defendant pleads payment of the Principal and Interest to one of the Executors of 18 years and a Release by him no good Plea for he not being at Age could not Release except he had the entire Forfeiture the Chancery in such case will releive Cro. Car. M. 13. p. 490. Kniveton and Latham Debt by Baron and Feme Exacutrix upon a Bond made to the Testator Upon non est factum pleaded it s found to be made to the Testator and another Judgment pro Querente The matter of variance goes but in Abatement and cannot be pleaded in Bar 5 Rep. 119. If the Defendant in this Case had demanded Oyer and caused it to be entred in haec verba he might have Dâ—murred to the Declaration and the Court ex officiâ— ought to have abated the Bill Allen p. 41 42 Holdwych and Chafe In Debt by Executor after imparlance the Defendant shall not have Oyer of the Testament or of the Obligation or other Deeds Q. de hoc doct placitandi 272. Two Executors made Partition of the Testators Specialties and then one of them did release to the Debtor an Obligation which did appertain to the part of the other the Debtor having notice of the Partition between them the other Sued in Chancery for relief Chancery would not relieve him but if the release were obtained by Covin for a lesser sum than the Debt was the Debtor should satisfie the overplus More n. 802. A. Administrator of B. de bonis non per G. against H. and Avers that H. had not paid it to B. nor to A. not saying he had not paid it to C. its good enough for the Declaration is quas ei injuste detinet which per Cur. cannot be if it were paid to C. Also this lieth on the part of H. to plead in discharge of himself 1 Keb. 232. In Debt on Bond per B. Administrator de bonis non of G. The Plaintiff saith the
pro Querentâ— On non est factum pleaded it had been well enough so if this had been a Condition to pay Qu. if there be no sufficient words of Obligation to the Plaintiff Siderfin p. 290. 2 Keb. 81. Queen Mother versus Challoner Variance between the Obligation and Count shall not be shewed after imparlance 1 Brownl 95. Percher and Vaughan Variance in the Sum. THe Declaration was the Defendant stood bound to him in Septingent ' quinquagent ' libris and produced his Writing Obligatory and upon Oyer the words were Septuagint ' and quinquagint ' libris The Defendant pleads the Variance and demurs thereupon Per Cur. that is no cause to abate the Writ The Defendant then pleaded non est factum and the Jury found that the aforesaid Writing Obligatory de summa Septuagent ' quinquagint ' librarum per quod praedict W.W. per breve suum exegit de praefat ' T.P. infrascript septingent ' quinquagint ' libras was sealed c. sed utrum super tota materia c. the Court awarded the Plaintiff should recover the 750 l. and Costs Hobart 116. Walter and Piggots Case The Obligation was octigint ' and the Declaration octogint ' and Variance pleaded See the form of Pleading and entring Judgment Hobart p. 19. Fitzhughes Case Upon Oyer it appears no sum is mentioned in the Condition and the Declaration is to pay so much Per Coke it s a material Variance and the Obligation is single and no day being set down its payable on request and so the Declaration is good 2 Bulstr. 156. Dorrington and VValler Debt in York on Obligation of 13 l. Plaint was in plicito debiti 14 l. which variance was assigned for Error 2 Keb. 590. Vavisor against Bellingham Variance in the Names and Additions Misnomer MOlineax enters his Original in the Common-Bench against Marâ—ham in Debt on a Bond per name of J. Markham Alderman de D. and declares against him by the name of Markham de D. Esq and Judgment was given pro Quer. sur Verdict it was adjudged Error Yelv. p. 120. Molineax and Markham The Plaintiff in the Obligation was named J. Thorney de Fenton in Com' Not ' Armig ' and in the Declaration he was named J. Thorney Armig ' To de Fenton in Com' Noi ' were left out The Defendant demands Judgment of the Bill for this Variance Per Cur. respondeas ouster for this is no Variance to abate the Bill when he is well named is his proper Name and Sirname the addition is not material otherwise if it were of the part of the Defendant Cro. Eliz. p. 312. Thorney and Disney Declaration is on a Bond by Edmund Shephard for so it was signed and shews a Bond of Edward Shepard Noverint c. me Edwardum Shephard c. Upon non est factum the Jury found it the Deed of Edmund Shepard and Judgment was Arrested for they are distinct names And though it be subscribed by the name of Edmund yet that is no part of the Bond he ought to have brought his Action according to the Bond Cro. Jac. 640. Maby and Shepard Cro. Jac. 558. Watkins and Oliver Count quod praedict ' Jacobus per nomen Joâ—annis W. per quoddam scriptum c. upon Oyer the Defendant by the name of John W. fecit scriptum The Condition was if James W. paid The Defendant Demurs Per Cur. the Action lay not for John cannot be James Crook Eliz. 897. Feild and Winlowe W.S. is bound by the name of J. S. Action brought against him by the name of J. W. alias J. On non est factum adjudged the Plaintiff shall not recover the Action should be against J. as he is named in the Obligation 11 Eliz. Dyer 279. The Defendant pleaded variance between the Obligation and the Declaration for the Obligation was Randal and the Declaration was ad respondend ' Randulpho alias Randal Q. if Randulphus be Latin for Randal 3 Leon. p. 232. Babington's Case In the Writ he was named Son and Heir apparent and in the Declaration Son and Heir generally for this variance the Judgment was reversed Crook Eliz. 333. Annesby and Stokes When a Man appears and pleads he hath lost the advantage of Misnomer 2 Rolls Rep. 50. Sir Francis Fortescue's Case If he is named Saxex in the Original and Saxey in the alias dict' its variance for he ought to declare against him by the name he was at the time of Sealing the Bond and as he is named in the Condition and the alias dict' is for no other purpose but to make the name agree with the name in the Bond. If Action be brought against J. S. who at that time was Esquire and afterwards he is made a Knight there he shall declare against J. S. Armig. alias dict J. S. Mil. But in the first case it was no Error it being an easie Mistake 1 Bulstr 216. Saxey and Whemson Variance in time of payment of Entry THe Bill was Be it known c. to be paid at two payments that is to say 5 l. to be paid the 19th day of November which is the present of this Month and the other 5 l. the 10th day of December and the Bill was dated 17th Nov. 1604. The Plaintiff declares the Defendant did acknowledge himself to owe the Plaintiff 10 l. to be paid to the Plaintiff at two payments viz. 5 l. to be paid the 19th of November then next following and the other 5 l. to be paid the 10th day of December then next following On non est factum the Jury found the Special Matter The Question was Whether the Bill maintain the Count for the first payment and adjudg'd it did Brownl 1 Rep. 74. Prest and Cee The Count is of a Bond dated 1 May and the Entry is of 2 May on a Release pleaded and Issue thereon it 's good enough Aliter on non est factum 1 Keb. 426. Billage and Blake Oyer monstre des faits IF no Oyer be demanded it 's intended a single Bill 1 Keb. 937. Coxall and Sharp In Debt on Obligation the Defendant avers the Obligation was for security of certain Rent c. without demanding Oyer of the Condition it 's but as a single Bill and he cannot aver a Condition and so upon Demurrer adjudged pro Querente 1 Rol. Rep. 425. Baylee and Harrington The Law in Henry the Seventh's time was That the Defendant need not shew forth the Indenture of Covenants on Oyer demanded 6 H. 7.12 13. 9 H. 7.17 13 H. 7.18 The Defendant craves Oyer of the Obligation ei legitur and then of the Condition ei legitur And this was for performance of Covenants in an Indenture and after Oyer of the Condition the Entry on the Roll was That the Defendant prays Oyer of the Indenture mentioned in the Condition which was not brought into Court ei legitur The Plaintiff demurs for that the Defendant hath prayed Oyer of an Indenture which was not brought
762. Cantor and Hurtwel Bond to collect all the Amerciaments he Pleads he collected all and good being in the Affirmative aliter if the Condition be of matter of Record as to be Non-suit in all the Kings Courts 2 H. 7.15 a. 4 H. 7.12 b. Certainty THe express certainty regularly ought to be pleaded according to the express words of the Condition and to shew the performance 15 Eliz. Dyer 318. vid. Kel p. 60. Covenant in a Lease that he hath full Power and Authority to Demise the Land Lessee brought an Action on this Covenant it sufficeth him to say the Lessor had not full Power and lawful Authority and this Assignment of breach is good for he persues the words of the Covenant Negative and the Lessee is a stranger to the Lessors Title and therefore the Defendant ought to shew what Estate he had in this Land tempore dimissionis by which it may appear to the Court he had full Power and lawful Authority to Demise 9 Rep. 60 61. Bradshaws Case A Man is bound in the Copulative that he and his Assigns persolverent omnia onera He ought to Plead that he and his Assigns have done this 28 H. 8 Dyer 27. b. Condition to pay 10 l. within six Months after the Marriage of the Plaintiff the Defendant Pleads the Plaintiff was not Married the Plaintiff replies he was Married Defendant demurs because it doth not appear but the Defendant hath paid the 10 l. Adjudged for the Defendant he ought to answer the Condition Aliter after Verdict Siderfin p. 340. in Hayman and Gerards Case Though it be a good Plea regularly to the Condition of a Bond to persue the words of the Condition and to shew the performance Yet Coke said there was another Rule that he ought to Plead in certainty the time and place and manner of the performance of the Condition so as a certain Issue may be taken As Condition to pay 30 l. to H. S. J. S. and A. S. tam cito as they should come to the Age of 21 years The Defendant Pleads he paid those sums tam cito as they came to Age The Plaintiff Demurs because it s not shewed when they came of Age and the certain time of the payment It s an ill Plea So if the Condition be for performance of Legacies in such a Will he Pleads performance generally not shewing the Will nor what the Legacies are Cro. Jac. 359 360. Hally and Carpenter If I am bound to enfeoff you of all the Acres in such a Fine and I shew the Record of the Fine and averr that I have enfeofft you this is good But if it be of Acres in Middlesex he ought to shew the Acres in certain 28 H. 8. Dyer 28. Conditions to deliver all Writings concerning such Lands it s a good Plea to say generally that he has delivered all the Writings Doct. placitandi 62.4 H. 7.12 vid. pluis for Conditions performed pleaded generally and not shewing the certainty 12 H. 8.6 b. Sir John Cutts Case 12 H. 7.14 b. In pleading Negatively he ought to Traverse all the Condition as if a Man be bound to pay for so much Bread as the Defendant shall deliver at the common Hall whensoever he shall be requsted by C. he shall say he was not requested by C. to pay to him any Mony for any Bread delivered at the Common Hall c. 4 H. 7.12 Where the Party is bound with Condition to warrant Land the Defendant shall say expressly that he had warranted the Land for pacificè gavisus is no Plea 30 H. 8. Dyer 42. Condition was if neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said Lands by any indirect means but by due course of Law then c. The Defendant Pleads that neither J. S. nor J. B. nor J. G. did disturb the Plaintiff by any indirect means but by due course of Law Q. if it be not a Negative Pregnant i. e. a Negative which implies an Affirmative Not disturbed by any indirect means such a Plea had been good or not disturbed contra formam conditionis Adjurn ' If I am bound I shall not go out of Westminster Hall till night but tarry in the Hall till night or that I will not return to Serjants Iun the direct way but by St. Giles in an Action brought on that Bond I may plead in totidem verbis 2 Leon. p. 197. Dighton and Clark Where a certain Duty accrews by the Deed at the beginning as by a Covenant Bill or Obligation to pay Mony this ought to be avoided by a matter of as high a nature viz. by Deed vid. suprà tit ' Accord pleaded and 9 Rep. 78. Peytoes Case Sometimes matter un fair shall avoid an Obligation as well as a matter in Writing as to say the Feme was Covert de Baron c. 4 H. 7.15 The Defendant Pleads after the Mony became due he and the Plaintiff did by parol submit to an Award and sets forth the Award and performance per tender Per Cur. it s an ill Plea Submission by parol cannot discharge a Debt by Specialty Stiles 350. Ludding and White Coxal and Sharp 1 Keb. 937. Inter alia a Bond may be put in Arbitrament yet in such case the Arbitrament cannot be pleaded in Bar of the Obligation Q. if the party hath his remedy on the promise to perform the Arbitrament A Bond inter alia may be Arbitrated and mixt with other things And where the Award is good the party must resort to Action thereon 2 Keb. p. 734. Morris and Creech A Special Plea in Bar is always to be answered with a Special Replication in the point Whereas such a Mortgage was made of such Land to J. S. c. if therefore the said Land at the day be redeemed and discharged from all Tithes c. the Defendant Pleads the Close was not Mortgaged to J. S. The Plaintiff replies it was Mortgaged he need not alledge it was not redeemed J. S. is bound to Marry the Daughter of B. at Easter next J. S. Pleads in Bar she died before Easter it s a good Replication to say she was living at Easter day without saying he had not Married her Yelv. p. 24. Bayly and Taylor Vid. good Learning as to this Rule supra Titulo Assignment of a Breach In Monox and Warleys Case It was taken as a Rule that the Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment altho' the Issue be found for him as in Debt on Bond against A. and B. A. Pleads Non est factum B. Pleads the Release of the Plaintiff and it s found the Deed of A. and the Plaintiff hath Released to B. The Plaintiff shall never have Judgment for upon the Verdict it appears he hath no Cause of Action 2 Leon. p. 100. Pleas in Abatement IN Debt on Bond the Defendant demands
that the Mony was demanded 1 Brownl p. 71. After Imparlance in Debt sur Bond the Defendant shall be received to plead he was always ready to pay Winch. p. 4. Doct. placitandi 388 389. A Bond to pay 500 l. The Defendant pleads after Imparlance Tender at the day place and that none was there to receive it and that he is yet ready to pay The Plaintiff demurs because he doth not plead touts temps prist and although he tendered it at the day whereby he saved it for the time yet if he doth not plead touts temps prist it shall be intended he hath forfeited his Obligation Q. If it be a good Plea Vid. Cro. Jac. p. 617. Steward and Coles The Defendant pleads Tender at the day and Touts temps prist The Plaintiff received the principal sum in Court and Judgment to acquit the Defendant of the sum received And the Plaintiff to have Damages alledgeth a demand of the Mony from the Defendant and thereupon it was demurred and Adjudged against the Plaintiff For if the Plaintiff would have Damages he ought not to receive the Mony but to suffer it to remain in Court for after Judgment Quod eat inde sine die no Issue can be taken Cro. Jac. 126. Harrold and Clothworthy Cro. El. p. 73. Allen and Andrews where he need not plead Uncore prist where an Obligation is made and afterwards a Defeazance is made thereof if he pay a lesser sum c. he needs not say Touts temps prist for by the Tender he was discharged of all Cro. Eliz. 755. Cotton's Case Debt on Bill to pay 50 l. on demand and on Non-payment the Defendant to pay 100 l. Action is brought for the 100 l. The Defendant pleads there was no demand The Plaintiff demurs and per Cur. the Action is a demand of the 50 l. but no cause to forfele the 100 l. But the Defendant should have pleaded tender of the 100 l. and Uncore prist But on Bond on Award to pay on demand being Collateral it s lost sans demand therefore no Uncore prist need be But where the Condition of an Obligation is to pay on demand that is a distinct Deed from the Bond and there is no Title to the Forfeiture sans demand but the Debt of 50 l. here is not lost per not demanding 3 Keb. 577. Remsee and Rutter Condition was that whereas the Defendant was Executor to M. D. that if the Defendant should perform fulfil c. the Will of M.D. in all Points and Articles according to the true intent and meaning thereof that then c. and pleaded further that the same M. by his Will bequeathed to J. S. 3 l. He pleads as to the said 3 l. he is and always was ready to pay the same to J. S. if he had demanded it The Plaintiff Demurs Per Cur. the Plea is well For this Obligation the Condition being general to perform the Will had not altered the nature of the payment of the Legacy but the same remains in such manner as before payable sur Request and not at the peril of the Defendant 1 Leon. p. 17. Fringe and Lewis A. is bound to B. to pay 10 l. to C. and A. teners to C. he refuseth the Bond is forfeited for the Obligor having taken upon him to pay it his Refusal cannot satisfie the Condition So to enfeoff a Stranger and he offers to enfeoff him and the Stranger refuseth the Obligation is forfeit Aliter if the Feoffment had been by the Condition to be made to the Obligee or to any other for his benefit or behoof there tender and refusal shall save the Bond. But if A. be bound to B. with Condition that C. shall enfeoff D. if C. tender and D. refuseth the Obligation is saved for the Obligor hath undertaken to do no act but that a Stranger shall enfeoff a Stranger Co. Lit. 209. a. Non est factum In what cases Non est factum is a good Plea and in what cases and where a special Non est factum may be found IN every case where the Obligation is void he shall conclude Non est factum As a Feme Covert shall plead Non est factum for its void by her So where a Deed is razed or interlined so where the Obligor was not Lettered Otherwise where the Deed is only voidable for there he shall shew the Special Matter and conclude Judgment si actio 1 H. 7.15 Downe's Case As an Infant pleads at the time of making the Bond he was within Age he shall not conclude issint Non est factum but Judgment si actio When the Deed is voidable and so remains at the time of the Pleading as in case of Sealing a Bond by an Infant or Duress here he cannot plead Non est factum but it must be avoided by Special Pleading with conclusion of Judgment si actio 5 Rep. 119. Whelpdale's Case When an Obligation or other Writing is by Act of Parliament enacted to be void the party who is bound cannot plead Non est factum but must plead this Special Matter and conclude Judgment si actio As on Bond made to the Sheriff against 23 H. 6. cap. 10. or a Bond made against the Statute of Usury 5 Rep. 119. Whelpdale's Case Hob. p. 72 166. In all cases when the Obligation was once a Deed and after before Action brought becomes no Deed either by razure addition or other alteration of the Deed or by breaking off the Seal In these cases the Defendant may safely plead Non est factum for at the time of the Plea which is in the Present Tense it was not his Deed 5 Rep. 119. Whelpdale's Case If the Condition of an Obligation be altered or interlined this shall avoid the Obligation as well as the Condition Aliter in a Defeazance 28 H. 8. Dyer 27. b. In Debt on Bond The Special Verdict was That the Defendants were bound to the Plaintiff being Sheriff in 60 l. Noverint nos c. teneri B. Winchcombe Armig ' in 60 l. c. with Condition to appear and after the Delivery these words Vic' Com' Oxon ' were interlined without Notice or Command of the Plaintiff Et utrum factum praedict ' sit factum praedict ' Henrici and Resolv'd per Cur. 1. When a lawful Deed is razed by which it becomes void the Obligor may plead Non est factum and give the Matter in Evidence for at the time of the Plea pleaded it is not his Deed. 2. When any Deed is altered in a Point material by the Plaintiff himself or by any Stranger without the privity of the Obligee be it by addition razing interlineation or tractation of a Pen through the midst of any Material word by this the Deed becomes void As if one be bound in 10 l. and after Sealing 10 l. is added to make it 20 l. it s void So if the Obligee himself alter the Deed by any of the said ways though it