The law of obligations and conditions, or, An accurate treatise, wherein is contained the whole learning of the law concerning bills, bonds, conditions, statutes, recognizances, and defeasances ... : to which is added a table of references to all the declarations and pleadings upon bonds, &c. now extant : also another table to the forms of special conditions which lie scattered in our president [sic] books ... : with an index of the principal matters therein contained / by T.A. of Grays-Inn, Esq. Ashe, Thomas, fl. 1600-1618. This text is an enriched version of the TCP digital transcription A26015 of text R9431 in the English Short Title Catalog (Wing A3972). Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread Approx. 954 KB of XML-encoded text transcribed from 298 1-bit group-IV TIFF page images. EarlyPrint Project Evanston,IL, Notre Dame, IN, St. Louis, MO 2018 A26015 Wing A3972 ESTC R9431 12384301 ocm 12384301 60808 2240973819

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.

 Early English books online. (EEBO-TCP ; phase 2, no. A26015) Transcribed from: (Early English Books Online ; image set 60808) Images scanned from microfilm: (Early English books, 1641-1700 ; 267:17) The law of obligations and conditions, or, An accurate treatise, wherein is contained the whole learning of the law concerning bills, bonds, conditions, statutes, recognizances, and defeasances ... : to which is added a table of references to all the declarations and pleadings upon bonds, &c. now extant : also another table to the forms of special conditions which lie scattered in our president [sic] books ... : with an index of the principal matters therein contained / by T.A. of Grays-Inn, Esq. Ashe, Thomas, fl. 1600-1618. [32], 578, [2] p. Printed for J. Walthoe ..., London : 1693. Attributed to Thomas Ashe. Cf. NUC pre-1956. Advertisement on p. [1]-[2] at end. Reproduction of original in British Library. Includes index. eng Obligations (Law) -- Great Britain. Conditions (Law) -- Great Britain. eebo The law of obligations and conditions, or An accurate treatise, wherein is contained the whole learning of the law concerning bills, bonds, conditions Ashe, Thomas, 1693 591 163645 691 0 0 0 0 2 78.89 D The rate of 78.89 defects per 10,000 words puts this text in the D category of texts with between 35 and 100 defects per 10,000 words. 2008-03 Assigned for keying and markup 2008-05 Keyed and coded from ProQuest page images 2010-05 Sampled and proofread 2010-05 Text and markup reviewed and edited 2011-06 Batch review (QC) and XML conversion

THE LAW OF Obligations and Conditions , OR An Accurate TREATISE , wherein is contained the whole Learning of the LAW concerning Bills , Bonds , Conditions , Statutes , Recogniz●nces and Defeasances ; as also Declarations on Special Conditions , and the Pleadings thereon , Issues , Judgments and Executions , with many other useful Matters relating thereunto , digested under their proper Titles .

To which is added A TABLE of References to all the Declarations and Pleadings upon Bonds , &c. now extant .

ALSO Another TABLE to the Forms of special Conditions which lie scattered in our President BOOKS . Being a Work necessary for all that Study the Law , or follow the Practick Part thereof . With an INDEX of the Principal Matters therein contained .

By T. A. of Grays-Inn Esq.

LONDON , Printed for I. Walthoe at his Shop in Vine-Court , Middle-Temple . 1693.

TO THE STUDETNS OF THE Common Law . GENTLEMEN ,

I Have often admired , as well at the Confidence as the scribling Fatigues of any particular Persons , who pretend to write Abridgments of the whole Common Law of England ; Non est res unius aetatis ; such Persons by an impertinent Citation of a Multitude of Cases , not duly examined , either raise a Confusion in the Minds of Students , or else soften them into a careless Humour ; it being more easie to turn to Hughes or Shepherd , than to search into the true Reasons of the Judgment in Cases maturely reported ; besides , these Persons are seldom curious about Declarations and Pleadings ; their essential Forms and apt Notions , which is the very Soul of the Law , that plastica vis , without which all their Volumes are void of Life and regular Motion , a meer rudis indigestaque moles .

Some indeed have merited well by their particular Treatises , and for that they have kept themselves to one Subject , have proved very useful .

This particular Title which I here present to you , hath not been hitherto fully and designedly handled ; and yet there is no Title more frequent in our Books than that of Obligations and Conditions . The Method I have used is as exact as a Treatise of this Nature is capable of ; yet in this I have not been over-curious and systematical .

I have not treated at large on Arbitration Bonds ; the Learning of Arbitraments being a large Title of it self , and Mr. March hath been very exact therein ; and for the same Reason I have been very sparing about Bonds sued by or against Executors or Administrators , that being a peculiar Learning of it self , ( though hitherto I confess but lamely handled . )

I have added a Reference-Table of Declarations and Pleadings , both Ancient and Modern , a thing useful for entring Clarks , who may at any time compare their own Manuscripts with these .

I have also added a Table of special Conditions such as are extant , though that must generally be left to the Students own Improvement , as the nature of the Case will be ; and it s very easie to change any Covenant into a Condition .

Some Cases I have cited more largely for the benefit of such who may not have the Books at hand , but especially where the Reasons of the Resolutions are Learned and Curious ; and I have corrected some Cases which have been mistaken in some Reports , as Croke Eliz. and others : I have ventured to insert many of the Cases reported by Mr. Keble , though in some of them I confess I am a little confounded , but they are set down in his own Words .

Gent. If this Piece prove useful to you either in it self , or in instructing you in the Method of your Studies as to other Titles of Law , I have my Design ; And if you please to pardon my Mistakes , it will lay a farther Obligation on your Humble Servant

J. A.
The Names of the Books made use of in the Table of Pleadings . A Stons Book of Entries in Quarto . Printed 1673 Brownlows Declarations and Pleadings , in English , 2 parts , 4to . 1653 Brownlows Declarations and Pleadings , in Latin , fol. 1693 Browns Entries , in 2 parts , fol. 1675 — Modus Intrandi , 8vo . 1687 Cokes Entries , fol. 1671 Clarks Manual , 8vo . 1678 Hernes Pleader , Eng. fol. 1685 The Book of Entries , fol. 1685 Robinsons Entries , fol. 1685 Rastals Entries , fol. 1670 Placita Generalia & Specialia , 8vo . 1674 Tompsons Entries , fol. 1674 Vidians Entries , fol. 1684 Winches Entries , fol. 1680
THE INDEX . A. PLEAS in Abatement , and where the Court shall abate the Writ 34 , 35 , 36 , 37 , 359 , 360 , 361 , 362 , 365 , 366 , 402 Acquittance pleaded to a single Bill . 31 Acquittance pleaded in discharge of Covenants for Reparations 198 Acceptance , Concord pleaded in Bar 406 Condition to accept a Lease 232 Condition to give an Account 237 Of Acts to be performed by a Stranger 188 Action on Bonds 353 By a Corporation 355 By joint Obligee 356 By Baron and Feme 357 By Alien ibid. By Executors and Administrators 358 Action brought on Bond against Administrators and Executors 358 Against Baron and Feme 363 Against Body Politick 364 Against Joynt Obligors ibid. Against a Servant or Receiver 367 Action brought before Cause of Action ibid. Who to do the first Act 352 Conditions on special Agreements , Contracts , &c. 134 Bonds made to Aliens 19 Leases made to Alien Artificers 50 Condition not to alien 234 Conditions for Appearance at a place Vid. Title Sheriffs Bonds . 232 Appearance to a Sheriffs Bond how to be pleaded 85 , 86 , 87 Apprentices Bonds 305 Condition for Appearance for Felony 314 Inter alia , a Bond may be put in Arbitrament , yet in such Case the Arbitrament cannot be pleaded in Bar of the Obligation 400 Of Bonds of Arbitrament 301 Assignee : who are Assignees of the Obligee , when a thing is to be paid or performed to him or his Assigns 110 , 111 Assignee to perform Covenants 190 Assignee of Estate , and Assignee of Contract 172 Assignment of Obligations to the King 317 Assignment by Commissioners of Bankrupts 343 Assets in the Hands of the Heir 293 , 300 Condition to make Assurance or farther Assurance 157 , &c. At whose ●●…sts 161 Condition to assure Land on Marriage 235 Foreign Attachment pleaded 445 Averment 10 , 35 Audita Querela , where lies and where not 257 , 272 , 281 B. BOnds Vid. tit. Obligations . Action brought by Baron and Feme on Obligation 357 Against Baron and Feme 363 Obligations assigned by Commissioners of Bankrupts 343 Conditions concerning Bastard Children 132 Bail Bonds Vid. Sheriffs Bonds . Bail Recognizance 267 The Nature of it ibid. Process and Scire Fac. thereon 269 How and when the Bail is discharged 272 Pleadings thereon and Execution 277 Removal , Error , Hab. Corp. 282 The Form of a Recognisance of Bail 313 Bond for the Good Behaviour 309 What amounts to a Breach of the Behavior 309 , 316 Condition to procure a Benefice 225 Of Bills Obligatory 8 , 27 Two several Bills in one 11 Assignment of a Breach on Bonds of Covenants 149 C. OBligations made by a Corporation16 Obligations made to a Body Corporate19 Conditions . The Nature of a Condition 38 The several sorts of Conditions 39 Of Conditions precedent and their Operation 40 What words make a Condition 41 What shall be said parcel of the Condition , and what not 43 Conditions against Common Law 45 , 46 Against Statute Law , as Against Stat. 32 H. 8. Of Leases made to Alien Artificers 50 Against Stat. 5 E. 6. c. 16. Of buying Offices 51 Against Stat. 16 Car. 2. Of Gaming 53 Against Stat. 31 Eliz. cap. 6. Of Simony 54 Against Stat. 13 Eliz. c. 20. & 14 Eliz. c. 11. Of Non-Residence 58 Against Statutes of Usury 59 , 60 , 61 , 62 Against Stat. 23 H. 6. cap. 10. Of Sheriffs Bonds , Vid. tit . Statutes . 67 Of Conditions Repugnant 90 Of Conditions impossible 92 , 93 Of Conditions insensible and uncertain 100 Conditions copulative ibid. Conditions disjunctive105 Exposition of Conditions . About payment of Mony 110 Persons to whom payment to be made or performance done ibid. What persons are to pay or do a thing by the Condition 112 Of payment of Mony by the Condition of a Bond in general ibid. In what Cases a collateral thing may be given in satisfaction of a Condition , or payment of other things in lieu of Mony 113 Time of payment or performance where time is limited 116 Where no time is limited 124 During the Lives of the Parties 125 On Request ibid. Place of payment or performance where a place is limited 127 Where no place is limited 128 Particular Conditions and their Expositions . Of Conditions to pay Mony on Marriage 131 Of Conditions to pay Mony concerning Children and Bastards 132 Conditions to pay Mony upon Proof 133 Special Conditions to pay Mony on Contracts , Agreements , &c. and of Pleadings thereon 133 Conditions to pay Mony on Warning 137 To pay Mony at several days 138 To pay Mony on a Voyage , and Pleadings thereon 139 To pay Mony yearly during Life 140 To perform Covenants generally 141 To perform Covenants where some are void , and some are good 45 A Condition to do a thing which is malum in se 46 Of Breaches of Covenant Bonds and Pleadings 149 Disability of the Obligor to perform the Condition 155 Conditions to perform particular Covenants . To make Assurance 159 At whose Cost 161 For quiet Enjoyment 169 To acknowledge a Fine 184 To pay Rent 115 , 189 On Covenants on a void Lease , or void Covenants 175 , 195 On Covenants in a Mortgage 196 On Covenants for Reparations 197 Pleadings on Covenant Bonds 199 Variance ibid. Release pleaded to Bonds of Covenants 202 Issue , Tryal on Bonds of Covenants 205 Conditons to save harmless 207 Of Counterbonds 215 Condition to permit an act or thing [ suffer ] 175 , 221 Conditions to surrender Copyhold 223 To satisfie embezilled Goods 224 To enjoy Offices ibid. To procure Office , Place or Benefice 225 To procure , deliver and execute Writings 226 To deliver Possession 228 Conditions concerning Wives 229 Condition to accept a Lease 232 To appear at a place ibid. Not to alien 234 Not to continue a Suit ibid. To convey Lands upon Marriage235 To perform a Promise ibid. To do things belonging to a Trade 236 To deliver Goods or pay the value ibid. To reap and carry Corn over the usual way 237 To give an Account ibid. Conditions concerning Wills and Legacies 238 General Rules of Expositions and Constructions of Conditions , and what shall be said a good performance . 240 According to the very Words and Circumstances 241 Of being performed in substance ibid. And that exactly and not in shew 242 Improper Words shall not vitiate a Condition242 No intention of the Parties to be construed against the express words 243 Conditions construed according to the intent 243 , 253 If it may constare 236 When a Man is bound to do or permit a thing , he ought to do and permit all which depends upon this in the performance of the thing 246 A Condition to be performed as near as may be 247 In many Cases endeavour shall excuse ibid. If there be an indifferent construction which may be taken two ways , that way shall be taken to make the Obligation stand . 248 A Man shall be supposed by the Condition to do what properly belongs to him ibid. One may be said to forfeit a Bond if he do what in him lies to break the Condition ibid. Where a Condion of an Obligation shall be expounded by a matter dehors 249 Expositions of Words , Sentences and References in Conditions . 259 As , [ During the Time ] ibid. As [ Debito modo ] 173 As [ Being reasonably required ] 251 As [ Then living ] ibid. As [ At all times ] 125 As [ Payments ] ibid. As [ Acres ] 168 As [ Either ] 252 As [ Until he be advanced ] 120 As [ Bearing date ] ibid. As [ Defend ] 170 As [ Miles ] 252 As [ Assigns ] 110 As [ Them ] 181 As [ And also ] 186 As [ Then to be void ] 245 Condition void and the Obligation single 90 , 91 , 92 , 93 Conditions Copulative 100 If it be not set down in the Condition who shall do a thing ; if the Obligee have more skill , he shall do it ; if the Obligor , he shall do it 112 , 136 To do a thing as Counsel shall advise 126 , &c. 157 , 158 , 167 To pay Mony concerning Children 132 Difference between Conditions affirmative and negative as to Pleading 142 , 143 , 147 Bonds of Covenants , Vid. supra . At whose Costs Assurances to be made 161 Covenants special , specially to be answered to 200 What things will excuse the performance of a Condition 353 Actions on Bond brought by a Corporation 355 Where a Recital in a Condition shall be an Estoppel 384 Difference where the Condition is to pay a Sum of Mony , and where to do a Collateral Act 6 Concord pleaded in Bar 406 Costs upon Verdict 465 In what cases discharge of part of the Condition shall be a discharge of the whole 479 Conditions to convey Lands , Vid. tit . Assurance . D. COsts and damages on a Verdict 465 Damnification , Vid. Pleadings on Bonds to save harmless 216 Date of Obligations 20 Of Declarations on Bonds . In respect of place 369 In respect of time 370 Form of the Declaration ibid. Declarations for outlandish Mony 375 Variance between the Original and the Declaration 376 Variance in the Sum ibid. Variance in the Names and Additions 378 Variance in time of Payment and Entry 380 Declarations against the Heir 297 Declarations on Statutes , Recognisances 262 Of Defeasances 28 The Notion of a Defeasance 287 Difference between a Condition precedent and a Defeasance 136 What amounts to a Defeasance and what not 289 Demand actual , where necessary or not 29 , 30 Delivering of Obligations 22 Detinue of Obligations 346 Conditions to deliver Writings 226 To deliver Possession 288 To deliver Goods or pay the Value 236 Disability of the Obligor to perform the Condition 155 Of disjunctive Conditions 101 Obligations void per Duress . 107 E. EXception in a Conveyance where void 295 Where the Obligor hath Election , and where the Obligee in disjunctive Conditions 103 , 115 Condition for quiet Enjoyment 169 Deed delivered as an Escrow 24 , 439 Error 272 , 282 What things will excuse the performance of a Condition 353 Estoppel and Pleadings ; Recital in Conditions 201 , 441 Exposition des parols 110 , 250 Vide tit . Condition Exposition of Conditions 110 Execution on Statutes and Bonds 262 , 265 , 410 Actions brought by Executors on Obligations 355 Summons and Severance 359 Release by Infant Executor ibid. Actions brought on Bonds against Executors or Administrators 361 F. FEme Covert makes a Bond , how far binds 13 Bonds made to Baron and Feme 18 To Feme Covert ibid. To Feme Sole 19 Actions on Bonds by Baron and Feme 357 Against Baron and Feme 363 Condition to acknowledge a Fine 184 , 185 , 186 , 187 Who to do the first Act 352 Bond , when said to be forfeited , Vid. sparsim per tot. 99 , &c. 142 , 179 Forgery of Bonds 345 Foreign Plea 443 Foreign Attachment pleaded 445 Fraudulent Deed , need not be pleaded , but may be given in Evidence 295 G. OF Bonds given for Gaming Mony 53 Act of God , Vid. supra . H. DEbt on Bond against the Heir 292 Riens per descent 293 What shall be Assets ibid. Declarations 297 Judgment ibid. I. JEofail 115 Impossibility excuse a Condition 97 , 98 Condition impossible , the Effect of it ibid. Pleas after Imparlance , Vid. tit . Pleadings . Infants entring into Bond , acknowledging Statutes , Recognisances 14 , 259 Insensible Conditions 100 Bonds joint or several 32 Actions by joint Obligees 356 Actions against joint Obligors 364 Joyining Issue on payment 461 On a Collateral point 462 Issue Tryal on Bonds Covenants 205 Of pleading to the Jurisdiction 449 Judgment on Bonds sued 465 K. BOnd made to the King , Vid. Recognisance . Condition to observe the order of the Kings Counsel 240 Assignment of Debts on Bond to the King 318 , 319 L. OF Bonds on Covenants in a void Lease 195 Condition to accept a Lease 232 Conditions concerning Legacies 239 Conditions about Licence 241 Condition to pay during Life 140 M. BOnd void for Maintenance 47 , 48 What is Maintenance and what not 317 Condition to pay Mony upon Marriage 131 Condition to convey Land upon Marriage 235 Bod void by Menass 107 Misnomer or Variance in the Names , Additions 380 Monstre des faits 141 , 195 , 303 , 381 Bond of Covenants in a Mortgage 196 N. NAme of Baptism , Variance between the Bond and Declaration 17 Variance in Names , Additions 378 One Non compos mentis entring into Bond 16 One may not plead he was not sane memory at the time of his Sealing the Bond , Vid. Pleadings . Non est factum , where pleaded to a Bond 36 , 430 , &c. Vid. tit . Pleadings . Of Non-Residence , and of Conditions against the Stat. of 13 Eliz. c. 10.14 Eliz. c. 11. 58 Notice where requisite , and where not in the performance of a Condition 134 , 135 , 166 , 218 , 224 , 308 , 347 , 351 O. THE Nature of an Obligation 1 Faux Latin in Obligations , or incongruous 3 The Frame and wording of Obligations and Bills Obligatory 13 What persons may or may not make Obligations ibid. To whom Obligations may he made 18 Obligations joint or several 32 By what Names bound 16 Of sealing and delivery of Obligations 22 , 27 Bond to Baron and Feme , to Feme covert , to Feme sole 18 , 19 Bond to alien 19 Bond to a Body Corporate ibid. Bond against the Heir , Vid. tit . Heir . Bonds of Arbitrament 301 Bonds of Apprentices 305 Bonds for the Good Behaviour 509 Assignments of Obligations 317 Forgery of Bonds 345 Detinue of Bonds 346 Suits on Obligations 355 Vid. Suits . Bond where suable 368 Oyer 381 Outlawry pleaded 441 How and by what means an Obligation good in its Creation may be defeated , extinct or discharged by matter ex post facto in Deed or Law 473 , 478 , 479 A discharge of a Condition in part is a discharge of the whole 479 Of buying Offices 5● P. Payment . PErsons to whom Performance or Payment to be made or done 110 Of Payment of Mony on a Bond in general 112 What Persons are bound to pay or do by the Condition ibid. Of Payment by Collateral satisfaction 113 Of Payment without Acquittance pleaded to a single Bill 31 Payment how to be taken 112 Time of Payment amongst Merchants 119 Place of Payment , when a Place is limited 126 , 455 When no Place is limited 128 Time of Payment , Vid. tit . Time . Of Payment at several days Of Performance of Conditions 122 , &c. Et sparsim per tot . Performance on Bonds of Covenants where to be pleaded specially , and where generally 194 Vid. tit . Bonds of Covenants . Payment of a lesser Sum in satisfaction 408 , 409 Place of Payment mentioned in the Condition and Venue 455 Joining Issue on Payment or not 461 What things will excuse the Performance of a Condition 353 Pleadings . Where Performance generally may be pleaded , and where it must be shewed specially , and how 392 Of Pleading non damnificatus 209 , 395 In many cases the Law allows general Pleading to avoid Prolixity 34 , 396 Of Certainty in Pleading 397 Regularly , it is good to pursue the Words of the Condition ; and yet he ought to plead the Certainty of time and place and manner of performance 398 In Pleading negatively , he ought to traverse all the Condition 399 Where a certain duty accrews by the Deed at the beginning , this ought to be avoided by a matter of as high a nature 400 Sometimes matter en fait shall avoid an Obligation ibid. A special Plea in Bar it always to be answered with a special Replication in the point 401 The Replication ought to contain sufficient Cause of Action , and sufficient Breach of the Condition ; or else the Plaintiff shall not have Judgment , though the Issue be found for him 401 Pleas in Abatement , Vid. Abatement . Pleas after Imparlance , what are good and what not 404 Concord , Acceptance pleaded , Vid. Concord . Payment of a lesser Sum how to be pleaded 408 Collateral things or satisfaction pleaded in performance , or for Payment , where good or not 410 Payment pleaded , and parcel paid 413 By command of another 415 Where mistake in pleading the Sum , or the time is aided , and where not ibid. Release pleaded , Vid. tit . Release . Tender & uncore prist pleaded 425 In what Cases non est factum is a good Plea , and in what Cases and where a special non est factum , as in Cases of Alteration , Rasure , Seals broken , &c. and Delivery as Escrow 430 , &c. 439 Estopples in Pleading , Vid. tit . Estoppel . Plea per Duress , Vid. tit . Duress . Plea per Heir to the Bond of the Ancestor , Vid. supra Actions of Debt against the Heir . Outlawry pleaded . 441 Attainder of himself pleaded , not good 442 Defendant pleads , he was non sane memory , no Plea 443 Recusant convict pleaded ibid. Peerage pleaded ibid. Of Foreign Pleas ibid. Foreign Attachment pleaded 445 Of pleading to the Jurisdiction 449 Recovery pleaded in Bar , in another Court , and against another person 450 Bond to be a true Prisoner for Fees 88 Condition to deliver Possession 228 Pleadings on Scire Fac. against the Bail 277 Condition to satisfie embezilled Goods after due Proof made 306 How Proof to be made 307 Pleadings on Sheriffs Bonds 80 R. OF Rasure in Obligations and Conditions 206 , 431 , 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. BOnds 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 23● 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 Do●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 Obligation , it is void , 14 H. 4.30 .

Feme .

IF a Feme Covert make an Obligation it is void , 14 H. 4.30 . and she shall plead she was Feme Covert , and conclude issint non est factum , because it is void : But an Infant shall not do so , because his Bond was only voidable , and he shall conclude Judgment si actio , 1 H. 7. 15. Donn's Case . Vid. pluis postea sub tit . plead . non est factum .

Debt brought against J. S. and Elianor his Wife upon Bond made by the Wife . Defendant pleads quod tempore confectionis , and shews the day she was Feme Covert . The Plaintiff confesseth this , but saith , she sealed the same Deed the same day of her marriage before the Espousals in the morning . Defendant demurs : The Plaintiff had Judgment , 2 Rolls Rep. 431. Jackson's Case .

Debt on Bond by Baron and Feme . The Defendant pleads the Wife had another Husband living . The Plaintiff replies , the Wife ad annos nubiles disagreed to the former marriage , and good , Moor n. Warner and his Wife versus Babbington .

Feme Obligor of full age takes Baron within age , in Debt on Obligation , they pray his age , but denyed , Noy p. 69.

Infants .

IF an Infant make an Obligation , this is not void , but voidable .

If an Infant seal a Bond , and he be sued thereon , he cannot plead non est factum ; but it must be avoided by special pleading , and conclude Judgment si actio ; for the Bond was not void but voidable , 5 Rep. 119. Whelpdale's Case , 1 H. 7.15 . Donn's Case , Vid. postea .

An Obligation or Covenant of an Infant for his Apprentiship shall not bind him , neither at Common Law , nor by the words of 5 Eliz. yet the Indenture shall bind him , because he is compellable Yelv. 225. contra . Octogenta libris , with Condition of payment of 40 l. it was adjudged good for octogint . though it is minus Latinum , 10 Rep. 133. Fitzhughes Case cited in James Osborns Case , Hob. p. 19. contra . The Record of this Case is set forth at large in Hobart , but there is no mention of the Condition , the Obligation was in septungenta libris , with Condition of payment of 350 l. and good , 10 Rep. 133. cited in James Osborns Case , so in vigint , libris , this is a good Obligation for 20 l. in Osborus Case .

If a Man be bound in quingint . duabus libris this is a good Obligation for 52 l. the Condition being for the payment of 36 l. it cannot be taken for 500 l. because it is not genta● but it shall be taken as an abbreviation of quinquagint . this was adjudged upon a special Verdict , where the Plaintiff declared upon a Bond de quinquagint . duabus libris , and the Defendant pleaded non est factum , Cro. M. 11 Jac. 416 , 418. Downs and Haithwait .

A Man is bound in octogesimo libris ( pro octogint . libris ) its good , 2 Rolls Abr. 147. Moor n. 1123. 1 Brownl . 60. Vernon and Onslow , in quinquagessimis libris pro quinquagint . libris , good , being all of one sense ; so fiftieth and fifty pounds , Cro. M. 9 Jac. Els and Clark .

Debt upon a Bill Obligatory for thirty two pounds , and upon Over of the Bill it was threty two pounds , adjudged pro quer' Cro. Jac. 607. Hulbert and Long.

The Obligation was in centem libris , and upon non est factum pleaded on a special Verdict ; the question was , whether it was his Deed or not , because it was centem ( for where a Deed is void non est factum is a good Plea ) but adjudged it was all one with centum , and the Condition shewed it to be an 100 l. Stiles Hill . 1653. fol. 438. Yorkhurst and Scot.

One is bound in vigint . nobulis , its good , 2 Rolls Abr. 146. Cro. Jac. 203. 1 Brownl . 95. Durchin and Vaughan .

Debt is brought for 600 l. on Bond , on Oyer it was sexagint . for this Variance the Defendant demurs ; per Cur. this Obligation doth not warrant the Declaration , because it is another Sum , and cannot be taken for sexcent . Cro. M. 5 Jac. fol. 203. Greggs Case , One is bound in sexgint . libris for sexcent . libris , this is not good , it s not a Latin word , Yelv. p. 105. 2 Rolls Abr. 147. Grey and Davis . In terengentate liberis its a void Bond , for both words are insensible , Cro. M. 18 Jac. 603. Hills and Cooper . In quint aginta libris is ill , but there is a good remedy in Equity on this mistake , 3 Keble 644. P. 28 Car. 2. Strange and Greenhill .

Note , There is a difference when the Condition is to pay a Sum of Mony , for then the intent of the Sum may more easily be collected , ut supra , and a Condition to do a Collateral Act. Debt on Bond de quingent . libris ; Defendant demands Oyer , and it was in quemquegent libris , the Condition was to do a collateral Act , Defendant pleads an insufficient Plea , and the Plaintiff demurring thereon prayed his Judgment : but because the Plaintiff had declared upon a Bond that appeared to be variant , and the word was insensible , and had not any other thing to expound it , per Cur. the Obligation was void , and Writ shall abate , Hill. 4 Jac. p. 146. 2 Rolls Abr. 146. Yelv. 95. Parry and Dale . So ,

A. is bound in a Bail Bond pro quadragent . libris , the Plaintilf declares pro quadragint . libris , for this variance Defendant demurs to the Declaration , per Cur. genta , refers to centum , and so it s rather 400 l. than 40 l. and the Condition being collateral doth not shew the intent of the Parties ; adjudged against the Plaintiff , Stiles p. 241 , 257. 2 Rolls Abr. 147 , 148. Feilder and Tovey . So Condition to appear was novemgint . ( for honagint . ) and the Defendant pleaded in Abatement , 3 Keble 255. Scots Case .

An English Bill is made se●teen for seventeen pounds , and adjudged good , in 10 Rep. 113. James Osborns Case .

Tenerie & firmit . Obligarie , yet good , Yelv. 193. Dodson and Keyes .

In viginti litteris ( for libris ) its void , Partrose's Case cited in Cro. Jac. 603. Cooper and Hills Case , But the Attorny who made the Bond was committed to the Fleet for Knavery .

In viginti lib'is , with a dash , it s an insufficient Bond ; liba signifies a Cake , and the dash doth not help it , Noy p. 109 , Shet●et and Mallet .

One is bound in viginti liveris ( for libris ) it is not good , Cro. Jac. fol. 203. cited in Durchin and Vaughans Case .

A Man is bound in an Obligation , in libris , without saying how much , it s a void Obligation , Yelv. p. 225. in Loggins and Tethertons Case .

An Obligation was made for the payment of 10 l. 8 s. and 8 ( not saying pence ) Action of Debt lies for the 10 l. 8 s. 1 Brownl . Rep. p. 61.

Obligation to pay 5 l. puri auri , i. e. fine gold , Quaer. 9 H. 7.6 .

In respect of the Frame of the Obligation or Bill .

NOte the Opinion in Yelverton , Dodson and Key 's Case , p. 193. When the parties and the sum are well expressed to the Conusance of the Judges , such words by which the party doth intend to bind himself shall serve .

Memorandum , That I Ben , have received 20 l. of C. which 20 l. I Ben. promise to pay to D. in witness whereof I have hereunto set my Seal , this is a good Obligation , 22. E. 4.22 . cited in Roll. 2. Abr. 146. If it be , I shall pay to you 20 l. In witness , &c. I put my Seal , it s a good Obligation , 22 E. 4.22 . So these words , Concedo vobis , &c. makes a good Bond , 22 E. 4.22 . Hatley's Case . If a Man by his Deed , say , that I owe to C. 20 l. to be paid at Easter next , or , I had of C. 20 l. of which I owe him 10 l. or , to be repaid him again ; or , I A. B. do bind my self to C. that he shall receive 20 l. and such like , these are all binding .

Obligation was made in such manner : Be it known to all Men , that I doe owe unto Oliver 26 l. to be paid such a sum at Michaelmas , and such a sum at Lady-day ; and in truth the particular Sums do not amount unto 26 l. this was not a good Obligation for 26 l. Rolls 2 Rep. Tr. 18 Jac. B. R. Oliver's Case .

If A. acknowledge by a Bill Obligatory himself to owe 10 l. to B. to be paid at a day to come ; and by the same Bill binds him and his Heirs in 20 l. and saith not , to whom he is bound ; yet it is good , and it shall be intended to be bound to B. adjudged upon demurrer , Rolls 2. Abr. tit . Oblig . p. 148. Franklin and Turner .

Obligation was written in this form : Know all Men , &c. that I H. W. am bound to W. Gore , &c. in the Sum of , &c. for the payment of which Sum I give full power and authority to the said Gore to levy the said Sum upon the profits of , &c. until the same be paid . Defendant pleads , the Plaintiff had levied part of the said Sum , and shews not how , ill Plea . Per Curiam , the Plaintiff may at his liberty bring his Action upon the said Obligation , or levy the said Monies according to to the Clause aforesaid , 3 Leon. fo. 223. Gore and Winckfeild .

An Obligation of 200 l. to two Solvend . the one hundred pound to the one , and the other to the other ; it is a void Solvend . 18 Eliz. Dyer . 350. Hob. p. 172. in Stukeley's Case ; yet Brownlow seems contra , 2 Rep. p. 207. Obligation to two , solvend . 10 l. to the one , and 10 l. to the other ; both ought to join in Debt on this Obligation . But an Obligation made to three , solvend . to one of them , is good .

Memorandum , I John B. have agreed to pay J. S. 20 l. though it be in the Preterperfect Tense , and wants the word In cujus rei testimonium ; yet is a good Bill , 1 Leon. p. 25. Bedowes Case . And per Wray dedi & concessi are used as words of a present Conveyance .

This Bill witnesseth , that I R. S. have received of T. P. 40 l. to the use of Robert and Jane Shaw Children of , &c. equally to be divided between them ; which Sum I confess to have received to the uses aforesaid , and the same to repay again at such a time , as shall be thought best for the profit of the said R. S. and J. S. R. S. dies intestate , his Administrator brings Debt for 20 l. and counts that the Defendant by his Bill Obligatory ( shewn in Court ) acknowledged se recepisse 20 l. of T. P. to the use of the intestate , solvend . at such a time , quod videtur opportunum pro proficuo of R. S. the intestate , and shews that at such a time videbatur opportunum , &c. and he demanded it . Upon Oyer , the Defendant demanded Judgment of the Writ and Count as not warranted by this Bill ; per Curiam . 1. This is a good Bill Obligatory , and shall be intended to be delivered to the use of the Plalntiffs intestate ; the Plaintiff hath supposed it in his Declaration , and the Defendant hath admitted it , otherwise he ought to have pleaded non est factum . 2. The Receipt of this Mony shall be made to R. S. and J. S. and not to T. P. 3. It is as several Bills of 20 l. apiece , and are divided Debts , by the words equally to be divided , and so shall not survive , Crook M. 41 Eliz. fo. 729. Shaw and Sherwood .

Be it known , &c. I Tho. J. do bind my self to J. M. to pay unto him all such Monies as my Brother owes him . In witness , &c. And in the end of the Bill was written , that Will. the Brother of Tho. J. owed to M. 40 l. with this Averment in the Declaration ; it is a good Bill and Action lies ; for it is reduced to a certainty , Crook Eliz. p. 561. Morgan and Johnson , and yet p. 758. dubitatur .

Be it known that I Tho. D. do owe unto A.B. 50 l. to be paid him , 10 l. at such a day , and so at five several days 10 l. until 50 l. were paid ; and for payment hereof I bind me , &c. in 10 l. nomine poenae . Obligee after five days past brings Debt for 50 l. and good ; for it is a several Bill for the 50 l. and a Bill also for the 10 l. Crook El. p. 771. Anonymus .

Memorandum , I do owe and promise to pay to A. 10 l. at any time after the Feast , &c. when she shall require it ; for payment whereof I bind my self , &c. to J. H. by these Presents . It is a good Bill to A. by the words of the first part , and the words which oblige . him to J. H. are void , Crook Eliz. 886. Hardman's Case .

Bill Obligatory written in a Book with the Defendants Hand and Seal to it , good , Crook Eliz. p. 613. Fox and Wright .

Be it known , that I do owe unto P. 14 l. to be paid at , &c. together with 6 l. which I owe him upon Bill and Recognizance subscribed under my Hand . Plaintiff brings Debt for 20 l. and adjudged against him , because the Bill made him Debtor only for 14 l. Moor n. 670. Parry and Woodward .

The Defendant by Deed acknowledged he had received of T. 40 l. to the use of his Master , to be paid at Michaelmas following , and sealed it . In Debt the Defendant demurs , supposing this was only a Deed testifying the Receipt to anothers use , and not to charge himself . Curia contra , for the Clause of the repayment is general . Aliter , If the Bill had recited the Repayment to be made by the Master , then it had been but a Receipt , and meerly to anothers use , Yelv. p. 137 , 147. Talbott and Godholt .

Now I shall put a Case or two , how words written in a Bill after the In cujus rei Testimonium shall be expounded whether as parcel of the Bill or not .

My Lord Cook in Hamond and Jethro's Case , 1 Brownl . Rep. 59. held that whatsoever comes after these words ( In witness , &c. ) is no part of the Bill , but may be a Condition , and must be pleaded and not demurred 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. ● . 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 . Qu●r . If the Jury ought to find in such case non est factum , 1 Keb. M. 14 Car. 2. f. 416 , 423. Russel and Le● .

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. 3● .

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 Debt upon Bond , the Defendant pleads the Intestate in her Life by the name of Ellen released , &c. The Plaintiff replied non est factum Elianorae , which was found so by Verdict , and well , More n. 1192. Panton and Chowles .

Obligation by the name of John , and the Condition by the name of James ; the Declaration is that James per nomen Joh'is became bound , it is not good ; for John cannot be James , Crook El. p. 897. Field and Winlow .

The Plaintiff declared in Debt against Edmond Watkins alias Edward Watkins , that he by the name of Edmund , was bound &c. The Condition was , that if Roger W. paid 50 l. to the Plaintiff at a day , then &c. The Defendant pleads Payment by Roger , and Issue and Verdict pro Quer ' and Judgment : But it was reversed by Error ; for Edward is bound , and Edmund is sued , which cannot be intended one and the same person , and no averment can help it ; for one cannot have two Christian Names , and here is no Estoppel . Aliter , if the Condition had been if Edward W. pay the 50 l. and the Verdict found for the Plaintiff , then the Verdict should make it an Estoppel , Crook Jac. 558. Watkins and Oliver .

Debt on Bond brought against him by the name of Jacob ; he pleads he was called and known by the name of Jaacob and not Jacob , it was over-ruled , Mod. Rep. 107. Aboabs .

Who are bound though not named .

IF a Man bind himself , his Executors are bound , though not named ; not so of the Heir ; for the Executor doth more actually represent the person of the Testator , Cook Lit. fo. 209.

The Ordinary shall be bound if he administers , 2 Rolls Abr. 149.

In respect of Obligees .

To whom Obligations may be made , and the Effect .

To Baron and Feme .

A. Makes a Bond to Baron and Feme , Baron dies , Feme administers and brings Debt upon the Obligation as Administratrix ; she dies before Judgment , and her Executor brought Debt upon that Obligation : It lies not ; it was in her a sufficient Election and Waver ; and that personal duty being a chose in action may well lie in jointure between Baron and Feme . Aliter of other persons , Noy p. 149. Norton and Glover .

To Feme Covert .

IF Bond be made to a Feme Covert , and the Husband disagree , the Obligor may plead n● est factum : For by his disagreement the Obligation is no Deed , 10 Rep. 119. Whelpdale's Case .

To Feme sole .

THE Husband ( after she marries ) must join with her in the Suit ; for if cause of Action arise before Coverture , though but Trespass , where damages are only recoverable , they must joyn , 1 Keb. 440. Hardies Case .

To Alien .

AN Alien born under the Obedience of an Enemy may have Debt on Bond for personal things , More n. 852. Walford and Marsham .

To Corporations .

A Bishop , Parson , Vicar , Master of an Hospital , or other sole Body politick cannot take a Recognisance or Obligation , but only to their private , and not in their politick Capacity ; and therefore no Chattel either in Action or Possession shall go in Succession , but the Executors or Administrators of the Bishop , Parson , &c. shall have them . This is regularly true , except a Custom enable it to go in Succession , as in the Case of the Chamberlain of London for Orphanage Mony , there it goes to the Successor . But in case of a Corporation aggregate of many , as Dean and Chapter , Major and Comminalty , &c. it goes to the Successor , for they in Judgment of Law never die , 4 Rep. 65. Fullwood's Case , Crook Eliz. p. 480. Bird and Wilsford .

A Man cannot bind himself to two severally in a Bond ; but a Man may covenant with two severally , for that sounds in damages , March . Rep. p. 103.

I shall in the next place come to the Dates of Obligations ; and though it may be good without a Date , yet when it is dated , there is good Learning in our Books concerning the Juries finding , pleading , &c.

Date .

OBligation is good though it wants a Date , or hath a false or impossible Date , 2 Rep. Goddard's Case .

Declaration sur Obligation made ultimo die Augusti anno , &c. upon Oyer of the Bond , it bore date 19 Aug. an . &c. The Defendant pleads non est factum . Jury found it his Deed. Judgment pro Quer ' : For the Count was not of the date , but of the making , and the Jury have found the Deed , Hob. p. 249. Thorp and Taylor .

One brought Debt , and declares the Defendant 4 Apr. 4 Eliz. made a Bond bearing date the same day and year , and the Defendant pleads non est factum , and it s found that the Deed was delivered at another day before or after than the Plaintiff hath declared , yet Judgment shall be for the Plaintiff , for the date is not material , and the Defendant cannot be twice charged , 2 Rep. 5. Goddard's Case .

If it be a mistaken date as to the King's Reign , or no King's Reign be in , or an impossible date , or if it want a date , its good ; and the party may surmise a date in the Declaration , and it is good , and the party ought to answer to the Deed and not to the Date , Yelv. 194. Dobson and Keyes , Crook Jac. 261. id . Case .

The Obligee cannot alledge the Delivery before the Date , yet the Jury may find the truth ; and tho there wants in cujus rei Testimonium , yet its good , 2 Rep. Goddard's Case .

Obligation bears date in France , it may be sued in England , and it shall be alledged to be at Islington in France , for it s not traversable whether there be such a place as Islington or not , Cook Lit. 261. b. Latch . p. 77. Ward's Case .

The Defendant pleads quod factum prae● , was made and delivered sans Date , and afterwards the Plaintiff put a Date thereto and so not his Deed , ill Plea upon demurrer ; for the Defendant first confesseth it to be his deed by saying factum praed . and then concludes its not his deed , Crook Eliz. 〈◊〉 800. Cospes versus Turner .

In det sur obligation fait 1 Novemb. 12 Jac. the Defendant pleads in Bart an Indenture of Defeasance , and shews not the date of it , but by these words iisdem die & anno , referring this to the Plea of the Defendant ( viz. ) to the date of the Obligation alledged in the Count ; the Bar is insufficient for the uncertainty ; for this shall be intended to bear date before the Obligation , for that every deed shall be taken most strongly against him that pleads it , Doct. pl. 29.

If a Man plead factum suum dat. primo Jan. & deliberat . quarto Jan. he ought to say primo deliberat. 4to die Jan. otherwise the word suum imports that this was his deed the first day of Januar. per Dyer 5 Eliz. 221. b.

I shall now , treat of the delivery of an Obligations being an Essential part or circumstance required thereto , and what amounts to a good delivery to the party himself ; and where the delivery of a deed is traversable ; and of the Delivery as an Escrow ; and how non est factum may be pleaded thereon .

Delivery .

THE Defendant pleads non est factum ; The Jury found the Defendant caused the Obligation to be written and signed and sealed it , and then laid it upon a Table , and the Plaintiff came and took it ; per Curiam , this was not the Defendants Deed without other Circumstances found by the Jury . Had the Obligor cast it on the Table and said this will serve , and the other took it , it had been good , Crook Eliz. p. 122 1 Leon. n. 193. Chamberlain and Staunton .

If an Obligation be delivered to another to the use of the Obligee , and the same is tendred to him , and he refuseth it , then the Delivery hath lost its force , and the Obligee can never after agree to it , and therefore the Obligor may say it is not his Deed , 5 Rep. p. 119. Whelpdales Case .

Obligation dated 3 Sept. 1 Jac. Condition was that if the Defendant 4 Sept. 2 Jac. pay 100 l. to J.S. at such a place and also save the Plaintiff harmless from any Suit &c. The Defendant pleads true it was , that he by his Obligation bearing date 3 Sept. 1 Jac. did become bound in 200 l. but further said , that the said Obligation was not delivered as the Defendants Deed until the 17th day of Sept. 2 Jac. and then fuit primo deliberat . Upon demurrer adjudged pro Quer. for the Bond mentioned in the Declaration is not answered , For the Plaintiff shews the Defendant was obliged to him by his Obligation bearing date the same day , &c. which is laid to be a perfect Bond the same day as the Plaintiff counteth ; and then for the Defendant to come , and say that it was first delivered 17 Sept. 2 Jac. which is a year after , is no good argument , but naught without taking a Traverse , absque hoc that it was made the 3d of Sept. 1 Jac. 1 Brownl . p. 104. Green and Eden , Yelv. p. 138. id . Case .

Debt on Bond 18 Car. 2. to pay 300 l. in six Months next after the Defendants Marriage . The Defendant pleads primo deliberat. 22 Car. 2. and that no Marriage was , Post 22 Car. 2. hucusque : per Curiam though there can be no primo deliberat . before the day of the date , yet after it may , on Goddard's Case , Coke . But Condition to pay Mony three Months after the precedent Marriage is impossible , and so the Condition single and good , 3 Keb. 332. Newland and Dendy .

In Debt sur Bond which in truth was made to A. H. of London Merchant , to the use of A. H. his Factor beyond Sea now Plaintiff ; the Defendant pleads that A.J. sealed and delivered a Bond to A. H. of London Merchant , absque hoc that he sealed to A. H. the Plaintiff ; the Plaintiff demurs being but the general Issue , Not guilty ; if Evidence be that its sealed to the use of the Plaintiff , it is all one as if sealed and delivered to him , 3 Keb. 738. Hawtry and White .

If the Defendant plead the Delivery after the Condition impossible to be performed , then is the Obligation become single , Yelv. p. 138. Green and Eden .

The day of the Delivery of a Deed is not traversable , unless it be upon a special Cause , as if one be bound in an Obligation dated primo die Octobris , to pay 10 l. at the Feast of All-Saints next after the delivery of the Obligation ; and the Obligation is not delivered till the 2d day of November . In Debt upon this Bond the Plaintiff declaring of a Deed delivered primo Octob. the Defendant pleads that it was primo deliberat. 2 do Novemb . and that he tendred the 10 l. at the Feast of All-Saints then next ensuing , absque hoc that the Deed was delivered primo Octob. Jones Rep. 66. Bishop of Norwich versus Conrwallis .

If Evidence be that it was sealed to the use of the Plaintiff , it s all one as if sealed and delivered to him , 3 Keb. 739. in Hawtry's Case .

Delivery as in Escrow .

AN Obligation cannot be delivered as an Escrow unto the Obligee himself , but it may be delivered to another to the use of the Obligee , as an Escrow . For the delivery of it to the Obligee himself and his receiving it , makes it work as a Deed in the very instant of the delivery of it according to the effect of the Deed ; but being delivered to another to the use of the Obligee , it cannot operate so , because he is no party to the Deed , nor can take any thing by it , and doth but only take it as an Escrow , and as an Instrument to deliver to the Obligee at such time and in such manner as the Obligor shall direct ; and if he deliver it otherwise , the Obligor may plead non est factum , Stiles Pr. Reg. 222.

Therefore an Obligation may not be delivered as an Escrow to the party himself upon Condition to be his Deed upon special delivery , for this is absolute , being made to the party himself ; for delivery is sufficient without speaking words , and when the words are contrary to the Act , they are of no effect , Cook Lit. 36. a. 9 Rep. 136 , 137. Thoroughgood's Case . Vid. Hob. p. 246. Holford and Parker . More n. 836. Williams and Green .

Though the Plea , that he delivered it to the Plaintiff as an Escrow to be his Deed upon performance of Condition ; be not good ; yet being pleaded and replyed to , and admitted for good , and Issue being joyned and found false , the Verdict is good and Judgment well given , Vid. Crook Jac. 85. Blunden and Wood.

If the Deed be delivered to the party himself first , as his Deed upon Condition , the Deed is absolute ; but when it is first delivered as an Escrow though to the party himself , it is not his Deed till it be performed . One brings Obligation to me and prays me to deliver it as my Deed , and I say , do such a thing and take it as my Deed , otherwise not : It is clear , it is not my Deed until the thing performed ; here the Condition is precedent , so as it was not his Deed until it was performed ; and therefore a Conditional Delivery may be averred sans writing ; but if once delivered as his Deed , it cannot afterwards be defeated , it the Condition be not in writing , Quaer . Crook Eliz. 835. Hawksland versus Gatchel , contra . Crook El. p. 884. Williams and Green .

The Defendant pleads the Writing was his , and delivered to one W. as a Schedule until certain Conditions performed , and then to deliver it to the Plaintiff ut scriptum , and saith not ut factum ; yet per Curiam all is one in Construction of Law , 2 Keb. 690 , 733. Twiford and Barnard .

The Defendant pleads it was delivered as an Escrow on future Condition , and so non est factum , & hoc paratus est verificare . The Plaintiff demurrs specially quia minus apte conclusit . Per Curiam , sic non est factum is a full Issue , and the hoc paratus is ill , Judment pro Quer. 2 Keb. 805. Goslin and Broad , id . p. 836. Edwards and Web.

Of later 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 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. ● 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 sigi●at . Plaintiff declares against the Defendant so●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 afterwards released to his Executor , the Release is void , alit ; had the Obligation been joint and several , 1 Keble 936. Scot and Littleton .

Joint Bond by three , and Count General , the Jointure appearing upon Oyer demanded , the Court will intend they are dead , or not sealed ; had the Declaration been on a joint Bond , the Plaintiff must aver the death of the others , or that they never had sealed , 1 Keble 936. Tr. 17 Car. 2. Osborn and Crossland , vide plus Doct. Placit . 268.

Two are bound jointly , and one is only sued , he may plead this matter in abatement of the Writ ; but he may not plead non est factum , Co. L. 283.

Two are jointly bound in an Obligation , Action is brought against one of them only ; upon this the Defendant cannot demur , but may plead in Abatement , Siderfin 2.12 . And if one of the Obligors die , the Obligee in his Action of Debt against the other that survives , must set forth in his Declaration that the other is dead .

Four were bound conjunctim & divisim to B. B. had Judgment against them , and one of them dies , B. sues forth a Sci. Fac ' against the four , its ill , Stiles , Trin. 23 Car. p. 50. Blackwell and Ashton .

When two are jointly bound in an Obligation , though none of them is bound by himself , yet none of them shall plead non est factum , but he may plead in Abatement of the Writ , for they had sealed and delivered it , and every of them is bound in the entire ; therefore if they two are sued , and one appears , and the other makes default , and by Process of Law he is Outlawed , he which appeared shall be charged with the whole , 5 Rep. 119. Whelpdales Case .

The Defendant pleads he was bound simul cum R. G. to whom the Plaintiff had released all Actions the said first day of May , ( that being the date in the Declaration . ) the Plaintiff by Replication shewed , that after the Obligation sealed by R. G. he released to him , and after , i. e. the same day the Plaintiff sealed the Bond , absque hoc quod simul tenetur cum R. G. The Defendant demurs ; this Release doth not discharge the Defendant , and per Cur. the Traverse is ill , because R. G. was bound with the Defendant ; but because the Defendant had not taken advantage of it to shew it on the Demurrer , but confess it ; Judgment pro quer' Cro. Eliz. p. 161. Mannings and Townsend .

Two brought Debt on Bond , the Defendant pleads that the Obligation was made to them , and to one Bellamy , and that they three had an Action of Debt depending against him ; Judgment si Actio and demur : Adjudged pro quer . because an Obligation made to two , on which they counted , cannot be intended an Obligation made to three ; and if it be a Plea , it s in Abatement of the Bill , Cro. Eliz. p. 202. Isan and Hichcock .

Debt on Bond by three , brought against one without shewing the other two are dead , the Plaintiff ought to shew the others were dead ; but in Whel●dales Case this advantage was waved 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 one Writing by three , whereof two did not seal , 1 Keb. fol. 840. Osborn against Cawthorns Executors .

Conditions of Obligations . 1. The Nature of such a Condition . 2. The distinct respects or differences thereof in our Law . 3. What shall be said a good Condition of an Obligation , and what not . 4. The Exposition of Conditions , or when a Condition shall be said to be performed , and when not . 5. How a Condition and Obligation may be discharged , and gone by matter ex post facto .
The Nature of a Condition .

WHen an Obligation is clogged with a Condition , it s called a Bond conditional or double Bond ; when it is in another Deed or Instrument , it s called a Defeasance ; but it is commonly subscribed under the Obligation , or included within the Body of it , or indorsed upon the back of it ; and if the Condition be performed , the Penalty is saved , if not , the Penalty is forfeit .

The Condition is always for the benefit of the Obligor , 1 Sanders 66. Butler and Wig , and shall be construed favourably for his advantage : Cro. El. p. 396. Greninghams Case , 1 Leon. p. 142. Condition to perform an Award , the Arbitrator made Award 24 March , that the Defendant should pay to the Plaintiff 10 l. at Michaelmass next ; the Defendant pleaded the Plaintiffs Release of all Actions and Demands made the 10th of April : Per Cur. the Release is no bar to the Plaintiffs Action ; difference is , where Obligation is entred for payment of Mony at a day to come , there it s a Debt presently , and may be discharged by such Release before the day of payment ; but not so in case of Annuity , Rent and an Action of Debt for non performance of Award to pay Mony at a day to come , Cro. Jac. p. 300. Tyman and Bridges .

The several sorts of Conditions . Some are in the Affirmative , to do an Act , suffer an Act. Some in the Negative .

Some are to pay Mony , and some are to do a collateral Act. Debt on Obligation to stand to the Award of J. S. the Defendant pleads no Award . Plaintiff replies , and shews the Award , but assigns no Breach , its ills , for the Obligation is not for any Debt , but this is guided by the Condition , which goes in performance of a collateral thing , ( viz. ) of an Award , Yelv. fol. 152 , 153. Barret and Fletcher , Cro. Jac. 220.

Some Conditions are Precedent and executed , and some are Subsequent and executory . If A. acknowledge by his Bill obligatory , that he owes to B. 20 s. and for the payment of this at a day , he binds himself in 40 s. by the same Bill , in debt upon this Bill for 40 s. he ought to aver that A. had not paid the 20 s. otherwise it s not good , 1 Rolls Abr. 414. Danes and Bret.

An Award is made by Arbitrators between A. and B. that A. shall pay 10 l. to B. and in consideratione inde B. shall be bound in an Obligation to A. to release all his Right in certain Land , &c. In this Case B. is to be bound in the Obligation , though A. had not paid the 10 l. for it is not a Condition precedent ; and there is a mutual remedy of each Party , if the Award be not performed , 1 Rolls Abr. 415. Vivian and Shipping .

If the Condition of an Obligation be in such manner , The Condition of this Obligation is such , That if the above bounden A. B. do discharge the Obligee of such Recognizance , &c. And whereas also the above bounden A. B. hath agreed to free and discharge the said Obligee from two several Obligations , &c. Now the Condition of this Obligation is such , That if the said A. B. do save and keep harmless the Obligee , of and from the said two several Obligations , then this present Obligation to be void ; the last words do not restrain the Condition to the last part only ( to wit ) of the two Obligations , but do extend to the Recognizance , per the first words , The Condition of this Obligation is such , and per the word ( also ) in the last Clause , 1 Rolls Abr. 409. Ingoldsby and Steward .

For the Matter and Substance of the Condition .

What Conditions are good , and what not .

A Condition to do any lawful or possible thing , is good ; as to make a Release , perform Covenants , not to play at Cards and Dice , not to be Surety , &c.

But when the matter or thing to be done by the Condition is unlawful or impossible , or the Condition it self is repugnant , insensible or uncertain ; the Condition is void , and in some Cases the Obligation also .

Conditions against Law are void .

Against the Law of God , of Nature ; to do a thing that is malum in ●se ; as to kill a Man , or do any other Felony , &c. in such Cases the Condition and Obligation are both void , Co. Lit. 206.

Conditions against Common Law . Statute Law .

Note , This difference between a Bond made void by Common Law , and a Bond made void by Statute Law . If a Bond be made void by Statute Law , it s void in the whole ; as upon the Statute 23 H. 6. If a Sheriff take a Bond for a thing against that Law , and also for a due Debt , the whole Bond is void ; for the Letter of the Statute is so , 2 Rolls Rep. 116. But the Common Law doth divide , and having made void that that is against Law , le ts the rest stand ; Carters Rep. fol. 230. in Pearson and Humes Case . A Bond to perform Covenants , one is void , and the other good ; the Bond is good for those that are agreeable to Law ; as in Sir Daniel Nortons Case , Hob. p. 14. Cro. Eliz. p. 529. 2 Anderson 116. Lee and Coleshill . 3 Rep. 82 , 83. Lee and Coleshill cited in Twines Case .

If the Condition be to do a thing contrary to Law , the Obligation is void , 2 H. 4.9 . Co. Lit. 206. b.

But here is another Diversity .

A Condition to a do a thing against the Law of God , of Nature , a malum in se , or against Law and Justice ; in such Cases the Obligation and Condition are both void ; as for unlawful Maintenance , for a Sheriff not to execute Process , and the like .

But when the thing to be done , or not to be done by the Condition , is not malum in se , but against some Ground of the Law ; as that a Man shall make a Feoffment to his Wife , or is but malum prohibitum only ; as that a Man shall erect a College contrary to the Statute of 31 Eliz. or a Man is bound to alien certain Lands to a Religious House , or repugnant to the Estate , as Feoffee of Land shall not alien or take the Profits , or that Tenant in Tail shall not suffer a Recovery , &c. In these Cases the Conditions are only void , and the Obligations remain single , and yet Equity will relieve against them ; yet if a Feoffment be made of Land on Condition to kill J. S. the Condition is void , but the Feoffment is good ; for the state of the Land is setled , and executed in the Feoffee , and cannot be taken back but by the performance of the Condition which is void .

If a Man make a Feoffment in Fee , on Condition that he shall not alien , this Condition is repugnant , and against Law , and the state of the Feoffee absolute ; but if the Feoffee be bound in a Bond , that the Feoffee or his Heirs shall not alien , or take the profits , this is good ; for he may notwithstanding alien , or take the profits , if he will forfeit his Bond , Co. Lit. fol. 206. a. b.

A Man is bound to do a thing unlawful at present , which in time may be made lawful ; as a Feoffment of a Strangers Lands , or of the Lands of an Alien , &c. in these Cases he is bound to do it , and at his peril he must obtain Power to do them , Lit. Rep. 86.

Condition was , That if the Defendant shall procure one J. S. to make reasonable Recompence to the Plaintiff , for certain Beasts which he wrongfully took from the Plaintiff , that then , &c. the Defendant saith de facto J. S. had stollen the Beasts , and was indicted , and so the Condition being against Law , the Obligation was void : Per Cur. where the Condition shall be said against Law , and therefore the Obligation void , the same ought to be intended where the Condition is expresly against the Law in express words , and not for Matter out of the Condition , as it is here ; Judgment pro quer. 1 Leon. Case 99. Brook and King .

Conditions against Common Law .

Besides what hath been said before in general , take some few Cases of Conditions against Common Law .

Maintenance .

A Condition to maintain any Suit unlawfully , though no Act be done ; for if it be unlawful to be done , the Bond is void .

The Condition is , If J. S. the principal , and J. H. and J. M. do pay , &c. all such Sums which are due , and shall be due in such Suits ▪

The Under-Sheriff makes a Bond to the High-Sheriff , that he shall not return Venire Fac. not intermeddle with Executions until he be acquainted , it is naught and against Law , 1 Brownl . Rep. 64 , 65. Hobart p. 14. Norton and Sims . That the Under-Sheriff shall not execute any Process of Execution without special Warrant and Assent of the Sheriff , the Bond is void , 2 Brownl . Rep. p. 280 Chamberlain and Goldsmith . 1 Rolls Abridg. p. 417. Norton and Sims .

A Bond to save J.S. harmless from such a● Appeal of Robbery as B. had against him , is void , 18 E. 4.28 .

A Condition to renounce an Administration is good , 25 E. 4.30 .

A Condition that he should not molest or hurt the Obligee in his Lands or Goods ratione alicu● rei cujuscunque , it shall be intended he shall not hurt tortiously ; but not to restrain him from prosecuting the Obligee for Felony , or other just cause , and so not against Law , Crook Eliz. fo. 705. Dolson and Crew .

Conditions against Statute-Law .

Against the Stat. 32 H. 8. Of Leuses made is Aliens .

DEbt upon Bond to perform Covenants in an Indenture , which was to pay Rent . The Defendant pleads Stat. 32 H. 8. which maltes Leases to Alien Artificers void , and saith that the Defendant was an Alien born at Paris , and av●s the three points of the Statute . 1. That the House was a Mansion House at the time . 2. That ●e , ( viz. ) the Defendant was an Alien . 3. That ●e was an Artificer . The Plaintiff replies , the Defendant was an Alien Artificer ; demurr . Per Cur. the Replication not double ; but because he ●ad not said the place where he was born in En●land , it was ill , Siderfin p. 357. Freeman and King . The Form of the Plea , Vid. 1 Saunders 5. Jevens ●nd Harwich , Vid. Keble .

Against Stat. 5 & 6 E. 6. c. 16. Of buying of Offices .

THE Office of Armourer is within that Statute , Stiles Rep. f. 29. Hill and Farmer .

The Office of Secretary of Barbadoes , which is ●verred to be an Office of Justice , and being by 〈◊〉 Grant by Patent under the Great Seal , is within the Statute ; so if it were an Office in the Admi●alty or Spiritual Court , 3 Keb. p. 26. Dawes and Painter .

A Condition to perform Articles . That he before Easter Term next following , at the Request of the Plaintiff , would surrender to the Plaintiff his Letters Patents of the Stewardship of Bromes Grove , to the intent that he might renew the said Letters Patents in his own name . Adjudged that the Stewardship of a Court-Leet is within the Statute 5 E. 6. and so an Agreement to Surrender , 1 Brownl . Rep. 71. Williamson and Barnsley .

Debt sur Bond. Coleshil the Testator had the Office of Surveyor of Customs by Letters Patents to him and his Deputies ; and by Indenture between him and Smith for 600 l. paid and 100 l. per annum to be paid during the Life of Coleshil makes Deputation of the said Office to Smith , and Coleshil covenants with Smith that if Coleshil die before him , that then his Executors shall repay to him 300 l. and Coleshil was bound to Smith for performance : Per Cur. the Bond was void , 2 Anderson p. 55 , 107. Lee and Coleshil , cited in Twine's Case . 3 Rep. 82 , 83.

The Bayliff of the Savoy is an Office in fee ; he deputed Ellis for 30 years , who for Rent reserved substituted the Defendant , who replyed this matter . This is not within the Statute , or if it be , it s excepted by the Proviso . The Franchise it self being in Fee , Priviledge doth protect all inferious Grants ; as the Marshal may grant Under-Marshal , &c. for Precepts . The accounting for the Profits will be no selling within the Statute ; and the making a Reservation is no more . And the King may grant this Office of Bailiff , and there is 40 l. per annum reserved by the King . And the Bailiffwick of Southwark is granted for Mony , 1500 l. was paid for it : And the Bailywick of Westminster is sold reserving Rent , 3 Keb. 659. Ellis and Nelson . The Statute 27 H. 8. c. 24. is indeed a general Statute , but the King is out of that Statute , as well as out of 23 H. 6. c. 10.3 Keble 679.

The Plaintiff made the Defendant Deputy-Searcher , and allows him one half of the Profits , reserving the other to himself , good : Had it been to render a Rent or pay a sum in gross , it were within the Statute ; but Sheriffs , Chyrograss and most other Officers that make Deputies , do it to account of Fees , 3 Keb. 717 , 718. Welsh and Baden .

Against Stat. 16 Car. 2. cap. 7. Of Gaming .

A Bond upon Articles of an Horse-race for 300 l. It was to run four heats , on request for 40 l. and again the same day for 100 l. The Action is only for the 100 l. The Bond is forfeited , though there is not above 100 l. lost at any one time . As a Bond to run three several days , it is forfeited on the first loss , and though no more be played or lost , yet the Bond is void or any other Security that is entire ; for it is lookt upon according to the first contract , and not to the contingent , whether more or fewer times be played . Also a Bond of 1000 l. to pay all such Mony as is lost by Gaming at such a time , though only an 100 l. be lost ; this Bond is within the Statute , 3 Keb. Hill . 25 & 26 Car. 2. p. 254 , 259. Edgbury and Rosindale . So where it is to game at several days , and the one day the Plaintiff wins of the Defendant 100 l. and the other the Defendant wins of the Plaintiff 100 l. this is void , ibid.

If A. loseth to the Plaintiff 90 l. at Most at three throws , and at the same time he lost to B. at Cards 30 l. and to C. at Bet 60 l. more , and gives Bond , the Bond is void , though these are not Parties together , or in Trust one for another . It is not material to whom the party comes indebted ; for the Statute is that the party should not lose more than an 100 l. at one time or meeting upon Ticket , and per Cur. all plaid for on Ticket is void , 3 Keb. 671. Hudson and Malins .

There was lost at play a Ring of 20 l. value which was paid , and there was also lost at play at the same time 100 l. upon Credit , for which Bond was given , this 100 l. is not within the Statute ; and Judgment for the Plaintiff , Siderfin p. 394. Danvers and Thistlethwait , 2 Keb. 369 , 389.451 . If 500 l. be paid down , and not above 100 l. besides upon Credit , it is not within this Law . Per Keeling and Twisden , If one loseth a 1000 l. presently , and loseth an 100 l. in Rings present , yet he may lose 100 l. on Ticket , 2 Keb. id . Case .

Against Stat. 31 Eliz. cap. 6. Concerning Simon● , and what is not .

THE Patron takes an Obligation of the Clerk ( which he presented ) that he should pay 10 l. to the Son of the last Incumbent yearly , so long as he should be a Student in Cambridge unpreferred , per Cur. this is not Simony . So to pay 5 l. yearly to the Wife and Children of the last Incumbent . Aliter , if it had been to pay it to the Son of the Patron , Noy p. 142. Abigael Baker versus Mountford .

If a Man be bound to a Stranger to present J.S. to a Benefice , and he presents him upon a Simoniacal Promise with another Stranger , yet the Bond is forfeited , by Hobart p. 167. in Winchcomb's Case .

A Condition for performance of Covenants . The Defendant demands Oyer of the Condition and pleads performance . The Covenants were in consideration of a Marriage , M. was to pay 300 l. and other Covenants ; and there was one , that M. will procure B. to be presented , &c. into such a Benefice upon the next avoidance , and the Breach was assigned in this : Per Cur. had it appeared that on consideration of the Marriage he covenanted this , &c. it had been a Simoniacal Contract , and had avoided the Obligation : But this is a meer Covenant by it self , and without special shewing or averring it was upon a Simoniacal Contract , it shall not be so intended , Cro. Car. 425. Byrt and Manning .

A. is bound to B. on Condition , That whereas A. is in a short time to be presented , instituted and inducted to the Church of D. if A. after his Admission , Institution and Induction at all times on the request of B. his Heirs , &c. resign the said Rectory and Church to the Ordinary or Guardian of the Spiritualty for the time being , by which A.B. &c. may present anew to the said Church . This is a good Condition in it self without averment that it was for a Simoniacal purpose , 1 Rolls Abr. p. 417. Mich. 14 Car. B. R. Cary and Yeo.

J. had a Son which he intended to be a Clergy-Man , and having obtained a Presentation from Queen Eliz. for the Church of S. agreed with the Defendant that he should be presented , so that he would resign when the Son of J. was qualified . Whereupon the Defendant entred into a Bond of 1000 Marks on Condition ( having first recited the Agreement ) that if the Defendant within three Months after request should absolutely resign the said Benefice , that then , &c. In Debt on this Bond the Defendant pleads non requisivit , which was found against him . And in Arrest of Judgment it was moved , that this Bond was made on Simoniacal Contract , and so void : But the Court gave Judgment for the Plaintiff , 1. Because there was no Averment of the Simony . 2. That it was not material as to the Bond , because that Statute doth not make the Bond or Contract void , but only the Presentation . The sense of the Court in that Case was , that in truth , if a Man be preparing a Son for the Clergy and have a Living in his disposal , which falls void before his Son be ready , he may lawfully take of such person , as he shall present , a Bond to resign when his Son is become capable of such Living . But if a Patron take a Bond absolutely to resign upon Request without any such cause as the Presentment of a Son , or to avoid Pluralities or Non-Residence , or such reasonable cause , but only to a corrupt end to exact Mony by this Bond from the Incumbent , or attempt it ; tho the Bond may be good against the Obligor , yet it makes the Church become void , and gives the Presentation to the King . It seems in this Case , if Simony had been averred , it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was , Crook Trin. 8 Jac. 248 , 274. John and Lawrens , Sir Simon Degg p. 54 , 55 , 56.

Such a Condition was in Wood and Babington's Case , to resign into the hands of the Bishop of London . Upon Oyer of this Bond and Condition the Defendant demurred . Judgment pro Querente . But per Cur. If the Defendant had averred that the Obligation had been made with intent to exact Mony , make a Lease , &c. which in it self had been Simony , then it might have been a Question , whether this Bond had been good or not ; but upon this Demurrer it doth not appear there was any Simoniacal Contract , and such Bonds might be for good and lawful ends , ut supra , Crook Car. 180.

A Condition to resign on Request ; which was , If Jo. Watson do and shall upon the first of Octob. next , or before , if the said William Baker at the Parsonage-House of Cowley shall request the same , and before John Watson shall take another Benefice , in due manner resign the said Rectory , Parsonage or Benefice of Cowley aforesaid unto the Bishop or Ordinary of the Diocess , whereby the Rectory may become void , and the said William Baker may lawfully present to the same ; then this Obligation to be void . The Defendant after Oyer pleads Resignation ; the Plaintiff replies he did not resign . Et hoc petit &c. The Defendant demurs , for that the Condition is void . Per Cur. it hath been above a dozen times adjudged that the Condition is good . Quaere , if the Resignation shall be tryed per pais or by Certificate , 2 Keb. 446. Siderfin p. 387. Baker and Watson . M. 20 Car. 2. B. R.

In Debt on Bond for payment of Mony at a day certain . The Defendant pleads it was made upon a Simoniacal Contract for the Presentation to a Benefice , &c. per Cur. it is no Plea , because it was averred by matter debors , and appeared not within the Deed ; and an Averment shall not be , that it was paid for other causes than the Obligation expresseth , More n. 729. Noy p. 72. Gregory and Older .

The Condition was , if Web the Patron presented the Defendant , and if the Defendant continued Incumbent for a year , and after the year at all times within three Months after Notice and Request was ready to resign , and did resign the Benefice to the Ordinary to be presented thereto again by Web , and should not before resign , that then , &c. The Defendant pleads Stat. 13 & 14 Eliz. and that after he was inducted , he made a Lease to the Plaintiff of the Benefice for 21 years , and averred the Obligation was made for enjoying the Land by Lease . The Plaintiff demurs . Per Cur. the Plea was good , but the Averment not sufficient . Judgment pro Quaer . More n. 835. Web and Hargrave .

Against Stat. 13 Eliz. c. 20. 14 Eliz. c. 11. Of Non-Residence .

NO Lease to be made of any Benefice or Ecclesiastical Promotion or any part thereof , and not being impropriated , shall endure any longer than while the Lessor shall be ordinarily resident and serving the Cure of such Benefice without absence above 80 days in any one year . And all Bonds and Covenants for suffering any such Parson to enjoy any such Benefice with Cure shall be void , 13 Eliz. c. 20. 14 Eliz. c. 11. either by Parson or Curate ; the Lease was made to the Curate who leaseth over . Qu. If the absence of the Parson shall make the Lease void , 1 Leon. p. 100. St. John and Petit's Case .

Upon the Statute 13 Eliz. of Leases made by Parsons , that upon Non-Residence for 80 days the Lease shall be void ; this Statute voids Bonds for Non-Residence .

If the Condition be , that after Institution and Induction he shall at all times after be ordinarily resident , and serve the Cure without being absent 80 days during any one year , that he shall be Parson of the said Church ; this is a good Condition without Averment taken to be for a Simoniacal purpose , 1 Rolls Abr. 417. Cary and Yeo.

The Condition was , that if the Defendant be not absent 80 days from his Benefice , nor resign without the assent of his Patron , then , &c. The Defendant pleads Stat. 13 Eliz. That all Leases of Parsons made of their Benefices where they are absent 80 days , & ultra , and all Obligations for enjoying them shall be void ; and saith he was absent by the space of 80 days , and saith not & ultra , it was held an incurable fault in the Plea , Cro. Eliz. p. 88. Gosnal and Kindlemarsh . Such another Case in Crook Eliz. p. 490 , Earl of Lincoln versus Hoskins . Such a Plea was naught . 1. The Statute was misrecited tam diu ( where the words are tam cito . ) 2. Because it is not alledged that he was absent ; for otherwise neither Lease nor Bond are void .

Against Statutes of Usury , 13 Eliz. c. 8. 21 Jac. 12 Car. 2. c. 13. How and when such Obligations become void or not , and the Pleadings thereon .

IF the Contract be not usurious , it shall not be made Usury by mater ex post facto . A Bond for 60 l. and gave Bond to pay it and 6 l. Interest at the end of the year ; and before the end of the year , the Obligor pays 6 l. for Interest , it is not Usury , 1 Bulstr . 17. Anonymus .

A Condition to pay 20 l. per annum during Life , it is no Usury , but an absolute Bargain ; had there been any provision 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 . V●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 bottom●●● , 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 not within this Statute , Hob. p. 13. Sir Daniel Nortons Case .

This Statute hath two parts , one for the Benefit of the Sheriff , ( viz. ) That he shall take Obligations with single Sureties , which is for his Indempnity , that if he be amerced for non-appearance of the Party , he shall have his remedy ; the other for the benefit of the Party , so the Statute prescribes the Form , and that the Sheriff under colour of his Office , should not oppress the Party to make him any other manner of Obligation , for the Statute makes the Obligation void , for not persuing the Form , but not in the Matter thereof ; therefore the Sheriff may take one Surety , or two , one being a Stranger that hath nothing in the County , Cro. El. 808. Sir George Clyfton versus Webb .

At the Common Law the Sheriff was not compellable to take Bail of any ; and the Statute compels him to let to bail , and therefore no Action lies against the Sheriff for not having the Body at the day ; the Statute saith sufficient Sureties , but that is for his own indempnity , which he may wave , and take what Sureties he thinks fitting . The Statute saith , The Obligation taken in any other Form than is there prescribed shall be void ; and within the Statute are three Froms to be observed , 2 Leon. fol. 78. Seckford and Woolverton .

1. That it shall be made to the Sheriff himself .

2. That it shall be made to him by the Name of his Office .

3. That it shall be only for appearance at the day ; but the insufficiency of the Sureties is Matter , and not Form , and the Obligation is not void , Cro. El. p. 862. Mich. 43 El. 1. Cotton vers. Wale , mesme Case , 2 Anderson 175.

The Statute was made for the Prisoners benefit ; for the Mischief before was , That the Sheriff not being compellable to bail him , would extort Mony from him to be bailed , Modern Rep. p. 228.

At Common Law if the Sheriff had taken any Man by Writ of the King , he might not be delivered but by breve de homine replegiando , 2 Sanders 60.

This Statute does not extend to Fees or other Collaterals , only matter of Imprisonment colore Officii is taken in malam partem , as Extortion is , &c. 2 Keble 422.

One in Execution escapes , and is retaken , and then a Bond is made for his enlargement ; this is colore officii , and deins Stat. 2 Leon. 118. Philips and Stone .

If a Sheriff take a Bond for a true Debt , its good , because not colore officii .

The Warden of the Fleet , and the King Palace at Westminster , are excepted out of this Act.

If the Statute be misrecited , it may be demurred to , as he recited , if any Sheriff aut ejus Officiarii , where it should be alii Officiarii , Cro. Eliz. 108. Trussel and Aston . Q. if the Court will take notice of this by the printed Book , or by the Record , or otherwise , Siderfin p. 356. Holby and Bray . As to misrecital , vide 2 Keble 278. Pench and Woodnoth .

The Sheriffs Return upon this Statute .

ACtion upon the Case brought against the Sheriff , because he took J. S. and returned at the day , Cepi Corpus , and yet had not the Party at the day , but suffered him to escape , but he returned paratum habeo ( which was false , ) The Defendant pleads he being arrested , put in J. B. and J. C. Sureties , and pleaded Stat. 23 H. 6. and so let him at large ; the Plea is good , for the Sheriff is compellable to take Bail , but what Bail is left to his discretion , and for his false return of paratum habeo , he is amercible to the Court , and that is nothing to the Party , Cro. El. p. 624. Barton and Aldworth . And this is a good Plea for the Sheriff to plead not guilty in such a Case ; but if the Sheriff demurs to the Declaration , then the Action lies against him , for the Declaration shall be taken to be true upon the Demurrer , for the Statute is private , and the Court will not take notice of it unless it be pleaded , Siderfin H. 21 and 22 Car. 2. Parker and Webly , 1 Rolls Abr. 92. Mod. Rep 244. Page and Tulse . Mod. Rep. 57. But if the Defendant had pleaded this specially , or had pleaded non cul . he might have had advantage of the Statute , and ousted the Plaintiff of his Action , Moor n. 428. Cro. 3. 460. Langton and Gardners Case .

After this Statute the Sheriff may not make a Special Return , but only Cepi Corpus , or non est Inventus , Franklin and Andrews Case , cited in Siderfin in Parker and Welbyes Case , p. 23.

If the Sheriff return Languidus , yet if he took Bond according to the Statute , no Action upon the Case lies against him , but he is amercible , Cro. Eliz. 852. Boles and Lassels . The Sheriff , shall be amerced until he assign the Obligation to the Plaintiff , Siderfin p. 23.

If Bail be taken by the Statute 23 H. 6. and the Sheriff return Cepi Corpus , and the Party appear not at the day of the return ( being in mean Process ) the Sheriff shall not be charged in Action sur Case , for this would be to frustrate the Statute 23 H. 6. but then it must appear to the Court on the Record , that it is on the Statute 23 H. 6. and not a return at Common Law , Siderfin 22. Allen and Robinson .

If the Sheriff refuse to take reasonable Bail , Action upon the Case lies against him ; and if he refuse to take Bail , he is liable to an Action of false Imprisonment , Siderfin p. 23.

An Action upon the Case against the Sheriff pro Escape ; the Defendant pleads the Statute 23 H. 6. that he let H. to bail , and took reasonable Sureties , A. and B. Persons having sufficient within the County ; the Plaintiff replies , absque hoc , That he took Bail having sufficient within the County ; the Defendant demurs , Judgment pro Defendente , Mod. Rep. 227. Ellis and Parborough .

An Action upon the Case against the Sheriff for not taking reasonable Sureties , nor having sufficient Estates in the said County , and returning Cepi Corpus , and yet had not the Bodies at the day , it lies not , for he is compellable to let to bail , and if he have not the Body he shall be amerced ; and because he shall be amerced the Statute gives him advice to take sufficient Sureties for his own Indempnity , 2 Sanders p. 59. Posterns Case . Vide the Declarations and Pleadings in that Case there .

An Action upon the Case for taking insufficient Bail ; the Defendant pleads he had taken sufficient Security ; he need not say where , nor need he traverse the intent to deceive the Plaintiff of his Debt , Siderfin p. 98. Bently and Hore . Q. of this Case .

What Obligations and Conditions shall be void by this Statute , and what not .

IF the Obligation had one part of the Condition according to the Statute , and the other not , all shall be void , Plow . Dive and Manningham p. 68. b. Vid. Palmer Rep. 378. Noel and Cooper , Vic. in Com. perdit . pro praedict. it s void .

An Obligation to the Sheriff to appear and answer , &c. is void by the Statute 23 H. 6. aliter to appear to answer , for the Party by the Law may appear , and yet Judgment may be given by default , Noy p. 54. Lord Evers Case .

The Condition to make an appearance ; Q. if good , Noy p. 172. Rowles and Fow.

Obligation taken by the Sheriff after the day of the return is void by the Statute 23 H. 6. Siderfin p. 301. Rods Case . 3 Keble 260. and so not a single Obligation .

Obligation taken by the Sheriff for an appearance at Westminster , and the Term was adjourned to St. Albans , and the Party appeared there , he had not forfeited his Obligation , Moor n. 578. Corbet and Downing .

Ad respondend . de placito debiti in general , without mentioning the Sum is good ; the Bond ought to be made to the Sheriff by the name of his Office , and ought to express the day and place of his Appearance ; and these Circumstances being observed , though it be variant in other Circumstances , it s not material , Cro. M. 9 Jac. 286. Villers vers. Hastings .

The taking of a Bond of 40 l. by the Sheriff , is sufficient cause to excuse him from a mistake ; yet he may take Bond for a greater Sum , Cro. Jac. 286. Villers and Hastings .

Debt sur Bond , the Writ was ad respond . H. G. nuper Vic. Norff. and the Count was , quod concessit se teneri praefat . J.H. in praedict. 40 l. and saith not tunc Vic. Norff. existen . and per Cur. sur . Demurrer sur le bar ( where the Statute was pleaded ) the Count was insufficient , Cro. Eliz. p. 800. Guibon and Whytoft contra , 3 Keble 191 , 201. Twisleton and Druthin , for no advantage can be taken against the Bond except it were entred .

The Condition was , If the said J. D. personally appeared , &c. a die Pasc . in 15 dies , to answer to J. H. as shall appertain , and farther , to do and receive as the Court therein of him shall consider in that behalf , that then , &c. it s a void Bond , Cro. El. p. 672. Scriven and Dyther .

The Condition was , That if the Defendant do appear in B. R. such a day , then the Condition of the said Obligation to be void , yet per Cur. both good , for if those words were omitted it s but surplusage , Siderfin 456. Maleverer and Hawksby , 2 Keble 625.

The Writ is placito Transgr . the Condition of the Bond is to answer the ac etiam Billae 100 l. in placito debiti is void , being another Writ ; but if the Writ were in placito debiti , or the Bond taken only to answer the Writ in placito Trans . it were well enough ; and a nil Cap. per Bill . awarded sur demurrer by the Plaintiff , upon the Defendants Plea upon the Statute it being in alia forma , 3 Keble 164. Mildmay and Cage , and p. 711. Moor and Finch .

A Writ out of B. R. returnable out of Term , the Sheriff takes the Party , and takes Bond to appear at the day of the return , and for non-appearance brought Debt upon this Obligation , this Bond was void per Statute , and the Sheriff shall not be amerced for the non-appearance , nor liable to any faux Imprisonment by the Party , 2 Siderfin p. 129. Jenkins and Hatton .

The Bond not being taken by the Sheriff in the name of his Office , in Debt sur Obligation the Defendant demurs upon Oyer , sed non allocatur , for the Statute is not pleaded , and it may be for a just debt , 2 Keble p. 620. Jaques and Reyner .

A Condition to appear before his Majesties Justices of B. R. in Westminster , the Defendant pleads the Statute 23 H. 8. and that this was ali● forma , it should be coram Dom. Rege ubicunque &c. yet adjudged good ; the Statute is not to be avoided by such mistakes of returns , 3 Keble 611 , 551 , 627.

The Condition is , If such a one who was arrested sur Lat. appeared personally and answered , &c. in regard his appearance is necessary to put in special Bail , if the Party requires it , the Bond is good , Cro. Eliz. p. 776. Bowels and Hearster .

If Obligation be taken by the Sheriff after the day of the return its void by the Statute , and is not a single Obligation , for the Party so taken after the return may not be bailed without coming before a Judge , and he may not do this out of Term without consent of the other Party , Siderfin p. 301. in Courtney and Phelyn .

A Bond or Covenant for Fees is void ; a Bond for true Imprisonment is not void , prima facie , without Circumstances , &c. a Bond for Chamber-rent is void by Common Law , because the Party is contra voluntatem restrained , and shall be imprisoned till payment , to which the Court agreed ; also the Statute extends only to the Marshal for such Bonds as they may take virtute officii , 3 Keble 133. Mosedale and Midleton .

An Obligation taken with one Surety is good , Sir William Drurys Case , Lit. Rep. 110.

A Bond for Tuition of a Child as Curator , and to give account to the Ordinary , is but a voluntary undertaking of the Guardian , and so not deins Stat. 23 H. 6. and at Common Law its good , notwithstanding 3 Inst. 149. A Bond for due Administration may well be taken by the Ordinary , 3 Keble 671. Bishop of Carlisles Case . The Plea that the Bond is taken colore officii , will not avoid a Bond taken of the Party to do what he ought , 3 Keble 790.

What Obligations and Conditions are good or not , in respect of the Persons and Officers , to whom made , and in what Courts .

L. gives Bond to the Sheriff , being arrested by Attachment out of the Chancery ; the Condition was , That the Defendant should appear such a day in Chancery apud Westm. ubicunque fuerint , this Bond is within the Statute ; but here is a material variance in the Bond which makes it void ; for the Defendant to be precisely bound to appear at Westminster , and then to add ubicunque fuerint , Stiles p. 234. Burton and Low cited in 3 Keble 614. Kirby and Curwin , 3 Keble p. 599. Kirkby and Dicer .

The King is not deins Stat. 23 H. 6. 5 Rep. Whelpdales Case , 3 Keble 678. in Ellis's Case , Dyer 119.

A Serjeant at Arms of Wales is not within the Statute , Stiles 234. Burtons Case .

A Serjeant at Arms to the House of Commons not deins Stat. 1 Keble 391. Norfolk and Ailmer .

Such Bond given to a Deputy of a Bailiff of a Franchise is void , or to an Under-Sheriffs Deputy ; it must be to the Bailiff or Sheriff himself , Noy p. 69. Tavernors Case .

A Serjeant at Arms attending on the President and Councel of the Marshes of Wales , is not an Officer within this Statute , Cro. Car. p. 9. Car. B. R. Johns and Stratford .

If the Marshal of the Kings Bench takes Bond for the easment and delivery of a Prisoner in Execution , its void by this Statute , though he is not named ; and so many others , Cro. Eliz. p. 66. Bracebridge vers . Vaughan .

The Sheriff by vertue of Attachment under the Privy Seal of the Court of Requests , took the Defendant , and for his Enlargement made the Obligation to appear before the Queens Councel , &c. per Cur. here is no Warrant to take the Body or the Obligation ; for that Court hath not any Power by Commission , by Statute or by Common Law ; but the Sheriff ought to obey the Process out of the Dutchy Court , for that is appointed by Act of Parliament , and so this is not within the Statute , for the Statute speaks of such who are in their Custody per Course of Law ; and so this Obligation taken by Duress is avoidable , Cro. El. p. 646. Stephens and Floid , mesme Case , 2 Anderson 122.

If a Bailiff of an Hundred ( which is a Franchise ) take Bond , he must do it in the Sheriffs Name , 3 Keble 71 , 117 , 127. Monday and Frogat .

The Bond must be taken to the Sheriff himself , and not to another , Plow . Com. 68. a. b.

The Statute doth not extend to a Bond made to the Plaintiff himself , Allen p. 58. Leech and Davis .

The Marshal of the Kings Bench is deins this Statute , 1 Keble 391. 9 Co. 98.

On Oyer it was to appear on Process out of Chancery ; the Defendant pleads 23 H. 6. that Attachment was out of Chancery delivered to the Sheriff , retorn . Tres Trin. and this Obligation was for Ease and Favour ; the Plaintiff shews the Defendant was arrested , and gave this for appearance on another Writ , absque hoc , that it was for Ease ; the Defendant demurs , because the Sheriff cannot take Bond to appear on any other day than in the Writ ; sed per Cur. the Plea layeth a return that never was , and the Plaintiff sets forth true Bond , and traverseth the Ease , which is as well as can be ; Judgment pro Quer. 2 Keble p. 526 , 596. Maleverer and Redshare .

Plaint in Court Baron of 39 s. and Attachment against the Defendants Goods , and detained till the Bailiff caused 40 l. Bond to be made to the Plaintiff himself , to appear and answer with , and Condemnation by a day ; and pleaded Stat. 23 H. 6. this Bond is void at Common Law ; its void also for the unreasonableness of the Sum extorted , 1 Keble 873.

A Condition to appear in B. R. according to custom at the Suit of M. on Oyer the Defendant pleads there is no such Custom in B. R. as the Plaintiff hath alledged to appear to an ac etiam Billae , and so the Obligation void ; the Plaintiff demurs , Judgment pro quer . because the Statute 23 H. 6. which is a particular Statute , is not pleaded , so the Plea ill ; but it might be pleaded the Bond was by Duress , being in other manner than the Statute allows , and that Statute makes the Bond void for the whole , 3 Keble 160 , 181. Forth and Walker .

Debt on Obligation taken per the Plaintiff , Sheriff of the Defendant his Clerk , upon Condition to pay the Kings Silver into the Exchequer within 14 days after he received it ; the Defendant pleads Stat. 23 H. 8. and averred it was taken colore Officii ; upon demurrer adjudged pro quer . for the Statute doth not intend such Obligation taken of them , which are not to appear , nor are in Custody , Moor n. 685. Cartwright and Dale●worth .

The Sheriffs Bond for appearance at a day certain , at which day the Party did not appear ; but two days after he appeared : Per Cur. this appearance , though after the day , shall be allowed of for a good appearance , and shall be a discharge of the Bond ; for the whole Term is but one day in Law ; so it is in C. B. and B. R. 2 Bulstr . p. 255. Daly and Fryar .

Pleadings .

J. S. puts himself in a special Bailiff , and Arrests J. D. and takes Bond , &c. this is by Duress , and the Defendant might plead that ; yet it s not within the Statute , nor aided by it , for J. D. was never in the Sheriffs Custody after the Arrest , and the Bond was taken out of the County where he was arrested , and so by Duress , but not deins Statute , Cro. Eliz. p. 746. Brown and Adams , 3 Keble 756 , 760. Earl of Bristol and Lord Burks Case .

On the Sheriffs Bond it must be averred , that there is a Record in the Rejoinder , as well as in the Bar , 2 Keble 250 , 278. Knight and Pits Case , If one plead appearance , he must conclude prout patet per Record . Cro. Eliz. fol. 466. Corbets Case .

Though the Defendant nor Bail have any thing in the County , nor are Inhabitants in the County , yet the Bond is good ; for the Statute doth not make void any Bonds , but what are made in other manner , in oppression to the People , which the Statute appoints to be void ; and the words in other manner and form are to be intended of the matter of the Bonds as to the Sheriff , and not for the sufficiency of the Sureties ; therefore if he take Bond with one Surety it is good enough , Crook M. 43 Eliz. pl. 9. Blackburn versus Michelborne . The Sheriff is Judge of the sufficiency , and it is no Plea to say , he took Bond of insufficient persons , More n. 818. Cotton and Wade .

A Condition that J. S. appear in B. R. &c. The Defendant on Oyer demurred , because it is not taken by the Sheriff in the name of his Office . Sed non allocatur , the Statute being not pleaded , 2 Keb. 620. Jackes and Reyner .

If the Sheriff take an Obligation for the appearance of J. S. before Process comes to him to arrest J. S. and after the Process comes , this Obligation is good , Siderfin p. 151. Anonyinus .

A Statute of 200 l. was acknowledged to the Defendant to J. S. and this was extended by the Plaintiff being Sheriff , and that it was agreed by C. E. Brother to the Plaintiff and the Under-Sheriff , before the Liberate executed , that the Defendant should enter into the said Bond to the use of the Plaintiff : Per Cur. this Obligation is not within Stat. 23 H. 6. for the party was not in the Ward of the Sheriff ; and so it was resolved in Beufages's Case , Winch. 20 , 50. Emson and Bathurst .

A Bond to Neel Sheriff of Warwick ; and the Bond was to Neel Vic. Com. praed . and Warwick was put in the Margent ; per Dodderidge , this is not a good Bond ; he ought to be named Sheriff and of what County , 2 Rolls Rep. fol. 365. Neel● and Cooper , vide such a Case in 3 Keble fol. 422. Brisco and Richardson . Q. If it shall be taken by Presumption in this Case , the Writ being directed to the Sheriff of Cumberland , and the Bond by R. and S. of Carlisle in that County .

Bail Bond was to appear at Westminster die Sab' proxim' post Purif . to answer , its ill , 3 Keble 260 , Rod and Huans .

The Condition was Stare mandatis Ecclesiae , on Presentment for not receiving the Sacrament , whereon he was excommunicated , and gave this Bond for Absolution . Q. if this be a good Bond , for per Cur. 9 Jac. the Bishop can only take a Pledge in such Case , and not Bond. 3 Keble p. 219. Bishop of Exeter and Star .

A Condition to appear in B. R. where the Process is returnable , &c. the Defendant said in facto , that he had appeared secundum formam , &c. Et hoc petit , &c. there was a Repleader awarded , for it must be tried per the Record ; A. is bound to appear such a day , &c. and A. at the said day goes to the Court , but there no Process is returned , then the Party may go to one of the chief Clerks of the Court , and pray him to take a Note of his appearance . Vide the Form of Entry in such Case ; if the other Party pleaded nul tiel Record , it behoveth that the Defendant have the Record ready at his peril ; for this Court of Common Pleas cannot write to the Justices of the Kings Bench to certifie a Record hither , 1 Leon. p. 90. Bret and Shepard .

Debt upon a Sheriffs Bond ; Jones for the Bail prayed the Principal being now in Person , may be admitted to plead discharging th Amerciaments , ( which is the course of the Court ) where the Prosecution is fresh ; but where the Defendant in the Original Action , i. e. the Principal is become insolvent , per Cur. the Bail Bond is the only remedy , and they will not discharge that on the ordinary Rules ; but in this Case , because the Bail appeared on the very day of the return , and the default is the Plaintiffs own , and the Bond not above a year old , paying the Amerciaments and Costs the Bail was discharged , and the Principal admitted to plead , 2 Keble 545 , 553. Flood and Williams .

If the Defendant appears not to the Sheriffs Bond according to the Condition thereof , the Plaintiff may by leave of the Sheriff sue the Bond in the Sheriffs Name ; but it s at the Plaintiffs Election to amerce the Sheriff , Stiles Pract. Register p. 221.

When Bail is put in de bene esse ( as Bail taken in a Judges Chamber is ) the Plaintiff cannot sue the Sheriffs Bond , till it be refused or set aside , but he ought to except against it in the Judges Chamber , 1 Kebl● 478. Anonymus .

The Court cannot compel a Sheriff to assign his Bond ; the Party was arrested , and through his default in not returning his Writ , the Defendant died , Per Cur. in this Case he shall not take advantage of his own wrong , but shall now assign the Bail Bond , or pay the utmost Amerciaments , 2 Keble 388. Hill and Browning .

A Bail Bond was discharged upon motion , the Mony being paid before the return of the Writ , and appearance ordered , 3 Keble 316. Randuls Case ,

In Det sur Bond , the Defendant pleads Stat. 23 H. 6. and shews that V. was in Execution , and the Bond made for his deliverance against the Statute . The Plaintiff replies , tempore confectionis of the said Bond , V. was at large , absque hoc that he was in Prison tempore confectionis , &c. The Traverse is not good ; for one may be in prison and make a promise to make a Bond for which he is enlarged , and within an hour after he makes the Bond , the same is within the Statute , it ought to be absque hoc that it was made pro deliberatione , 2 Leon , 107. Bowes and Vernon . 2 Keb. 512. Die and Adams .

The Condition was if Thomas Manningham keep the Sheriff without damage against our Lord the King and one Th. P. and at all times be at the Commandment of the said Sheriff as a true Prisoner , and appear before the Justices , &c. then the Obligation to be void . The Defendant pleaded the Statute of 23 H. 6. and that the Body of Tho. Mannigham was in Execution upon a Recognisance , and that the Sheriff made the Obligation for the Delivery of the said Thomas Manningham , and demanded Judgment si actio , i. e. if the Plaintiff ought to maintain his Action ; this is no good Conclusion of the Plea , he ought to have concluded issint nient son fait . For the Statute saith it shall be void , and if it shall be void , then it is void from the beginning , and then it is not his Deed. And farther , the Defendant had not wisely concluded his Plea , for this special Conclusion had straitned the Defendant so , that if the Obligation be void for any other cause the Defendant shall not have benefit of it ; and yet because it appeared to the Judges on the matter in Law , that the Plaintiff had no cause of Action , the Court gave Judgment against him , for the Obligation is void by the Letter of the Statute , for it makes void Obligations taken in other manner , which extends to avoid Obligations for bayling those which are contained in the 2d Branch , as those in Execution , &c. Plowd. 66 , 67. Dive and Manningham . Yet the Condition was that the Defendant should appear in B. R. to answer in a Plea of Trespass and satisfie the Damages . The Defendant pleads the Statute of 23 H. 6. that the Bond was made for his enlargement and issint not his Deed. The Plaintiff demurs specially upon the Conclusion of the Plea , which ought to be Judgment si actio , and agreed the Plea to be naught , Allen p. 58. Leech and Davies .

Det sur Obligat . dated 25 Sept. The Defendant pleads a Ca. sa . was awarded against B. who was taken on it 30 Sep. and that the Obligation was made for the enlargment of B. The Plaintiff demurs , and had Judgment because it appears the Bond was made before the Arrest and so could not be avoided by 23 H. 6. but he ought to have pleaded that with a primo deliberat . after the Arrest , Noy 23. Collins and Phillips .

Det sur Bond by the Sheriff dated 13 Junij , the Defendant demanded Oyer of the Condition , which was that if he appear here Veneris prox . post tres Trin. and pleads Veneris prox . post tres Trin. was 14 Junij , and that he was imprisoned by the Plaintiff till 19 Jun. and that the Obligation supra fuit primo deliberat . per le def. 19 Junij , absque hoc that this was delivered as his Deed before the 19th of June . The Defendant demurs : Per Cur. this is not a good Traverse , it ought to have been , absque hoc that this was delivered as his Deed before die Veneris prox . post tres Trin. For if the Traverse supra be allowed , the Plaintiff shall be excluded from answering to the time alledged of the Return , although it be false , Siderfin p. 300. Courtney and Phelps , 2 Keb. p. 108 , 109 , 122. mesme Case .

The Defendant pleads to the Sheriffs Bond , that that there was no Writ ever delivered to the Sheriff , and so would avoid it per Stat. 23 H. 6. The Sheriff after the Writ sent out , but before delivery , takes Security , which per Cur. he may if the Defendant will give it , 1 Keb. 554. Brumfield versus Penhay .

The Defendant pleads Stat. 23 H. 6. and that he was in Custody by Warrant of a Writ returned Veneris post Oct. Pur. The Plaintiff replied , the Defendant was taken by a Warrant on a Writ returned Sab. post Oct. Pur. and not by any Writ returned Veneris , &c. The Defendant rejoined that he was in Custody by Vertue of a Writ returned Veneris post Oct. Pur. absque hoc , that he was taken by any Writ returned Sab. post Oct. The Plaintiff demurs : Per Cur. this is no Traverse upon a Traverse ; and there would be no Traverse in the Replication , which would make an end , but in the Rejoinder it doth , 2 Keb. 105.94 . Bennét and Philkens , 1 Sanders p. 20. id . Case , 3 Keb. 656. Gold and Cutler , 791. Sturges Case .

The Defendant pleads to a Sheriffs Bond taken for his appearance in B. R. die Sab. prox . post Oct. Sancti Martini , and that he appeared at the day , and the Court of Common Pleas gave him a day to bring the Record of his appearance by Mittimus out of the Chancery ; the Record was certified ( viz. ) that he appeared Lunae prox . post 15 Martini , which was after the day , and adjudged good ; for if the appearance be the same Term , it is good , 1 Brownl . 58. Statfield and Grony , 1 Brownl . 74. Carter and Freeman .

To plead an appearance , and not to say prout patet per Record . is naught , 1 Brownl . 91. Andrews and Robins .

A Condition to save harmless a Serjeant at Mace for letting the Defendant go on a Protection of the Lord of Bath . The Defendant pleads the Statute of H. 6. and misrecites it . The Plaintiff replies he was Bail for the Defendant , and for saving harmless of that , it was given the Plaintiff is estopp'd by the Bond to plead it was in another manner , 2 Keb. p. 278 , 334.

The Defendant pleads the Statute , and that it was for Ease and Favour and not for a just Debt . The Plaintiff saith , it was for a just Debt , absque hoc that it was for Ease and Favour . Judgment pro Quer. for not joyning Issue , 2 Keb. 554.

Debt on a Bail Bond to appear . Defendant pleads before the day he was taken by Cap. Utl. and deteined till after the day , and so could not appear . The Plaintiff demurred : Per Cur. it is an ill Plea ; for the Party may remove himself by Habeas Corpus ; and all Bail Bonds may be thus avoided , 2 Keb. 622. Jeoffries and Cooper . And the Plaintiff doth but his duty , Siderfin p. 406. id . Case .

A Bond to be a true Prisoner for Fees , &c.

THE Marshal takes Bond of one in Execution to be a true Prisoner , who escapes ; Action brought against him , it is a good Bond , Latch . 143. Sir G. Reynel versus Elworthy , Poph. 165. Sir G. Reynel's Case . The Marshalsey ruled to be enlarged , and this shall be called within the Rules ; and if the Marshal take a Bond to tarry there it is good , ibid.

A Bond to the Marshal to save harmless from Escapes is void and within the Statute , because not a Bond that he shall continue a true Prisoner , Vid. the Condition , Record and Pleadings , 1 Sanders 160 , 161 , 162. Lenthale and Cook , 2 Keb. 422. Siderfin 382. mesme Case .

The Defendant demands Oyer of the Condition , that the Defendant being a Prisoner and in the Custody of the Plaintiff , shall be a true Prisoner , and shall not make any Escape . The Defendant pleads Stat. 23 H. 6. and saith , that this Obligation was taken by the Plaintiff colore officii sui , and that it was for ease and favour to the Defendant . The Plaintiff replies , the said Obligation was taken for the better Security of the Defendant , absque hoc that it was for ease and favour ; the Defendant demurs ; Judgment pro Quer. For the intention of the Obligation was for ease and favour ; but traversing this had taken this away , and when the Defendant had such Issue offered , and refused it , and demurs , the Defendant agreed it was not for ease and favour : a little Evidence in such case would serve to prove ease and favour , Siderfin 283. Lenthal and Cook . From Queen Eliz. time such Bonds have been usually taken , after Issue such Bond is good , 2 Keb. 423. To be a true Prisoner , and to pay Fees is void ; for it is entire , 10 Cook 100. b.

A Bond to the Warden of the Fleet to be a true Prisoner . Defendant without pleading the Statute saith , it was for ease and favour . The Plainiff demurs . This Bond is void at Common Law ; this is a publick Law and need not to be pleaded . The Plaintiff should have traversed the Ease . Judgment pro Def. 3 Keb. 320 , 361. Oakes and Cell .

The Warden of the Fleet takes a Condition for true Imprisonment of M. and to pay all Fees and Chamber Rent . The Defendant pleads the Statute that it was for Ease . The Plaintiff replies the Proviso , which excepteth the Warden and traverseth not the true Imprisonment , it is ill . The Obligation is void at Common Law , and the Defendant need not plead the Statute . The Warden or other Gaoler cannot impose what Rents they will on their Chambers , 3 Keb. 133 , 603. Duckenfield and Wood.

Since 13 Car. 2. c. 2. persons arrested by Process out of the Kings Bench or Common Pleas , not expressing the Cause out of the Action in the Writ , Bill or Process , shall give Bail-Bond not exceeding the Sum of 40 l. and an appearance entred shall discharge a Bail-Bond ; yet if the Sheriff take 150 l. Bond in such Case , it is a Misdemeanour , but the Bond is not void , 2 Keb. 287 , 311. Yet he may bring an Action upon the Statute against the Sheriff , ibid. p. 311.

Out of this Act 13 Car. 2. are excepted Arrests upon Cap. Utleg . Attachements on Rescous , Contempt , and of Priviledge ; the said Act doth not extend to any popular Action , nor to any other Action brought upon any penal Law or Statute ( except Debt for not setting out of Tit● ) nor to any Indictment , Presentment , Inquisition , Information or Appeal .

Upon a Statute acknowledged and Extent sued , the Sheriff takes Bond of 20 l. for the payment of 10 l. for his Fee , and this was before the Liberate , adjudged the Bond was void ; for the Statute of 28 H. 8. gives him an Action of Debt for his Fee , and he must not have a double Reward . 1. Because he took the Bond before the Liberate . 2. He took his wages before he had done his work , Latch . 10. Epson's Case . A Leafe of a Bailywick contra , 23 H. 6. cap. 10. 3 Keb. p. 678. Ellis and Nelson .

A Condition repugnant or not .

IF the Condition be repugnant to the Obligation it self , there the Condition is void , and the Obligation is good : As if the Condition be , that the Obligee shall not sue for the Mony in the Obligation ; The Condition is void and the Obligation is single ; and yet this may be done by a Defeasance made after the Obligation , 7 H. 6.44 . 21 H. 7.24 , 30.

If the Condition be that if the Obligee shall pay to J. S. 10 l. at such a day , then the Obligation being 100 l. shall be void , otherwise not , although this was not the intent of the parties , yet the Condition is good ; for if the Obligee do not pay the 10 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 that otherwise his Election shall be taken away by the Act of God ; and the Condition is for the advantage of the Obligor and shall be taken beneficially for him . One was bound , that if after Marriage he and his Wife sold the Lands of the Wife , if then he did in his Life time purchase to his said Wife and her Heirs Lands of such Value , or else do and shall leave to her as Executrix , or by Legacy , or other good Assurance , as much Mony , &c. He married her and she dyed and he survived her , he is excused from the Bond , 5 Rep. 22. Laughter's Case , Crook Eliz. 398. mesme Case .

But if a Condition consist of two parts , whereof one was not possible at the making of the Condition to be performed , he ought to perform the other ; as if the Condition be to enfeoff J. S. or his Heirs when he comes to such a place , he is bound to enfeoff J. S. when he comes , for that the other is not possible , for he may not have an Heir during his Life , and so he had not any Election , 21 E. 3.29 . cited in Laughter's Case .

If the Condition of an Obligation be to enfeoff two before such a day , and one dies before the day , yet he ought to enfeoff the other , 1 Rolls Abr. tit . Condition , p. 451. Horn and May. Vid. contra Expressement , Bendl. p. 8. n. 31. Dyer 347. pl. 10.15 H. 7.13 . 5 Rep. 22 , &c.

If the Condition be to enfeoff J. S. within a certain time , if J. S. dies before the time be past , the Obligation is discharged , 1 Rolls Abr. 451.

I am bound to enfeoff the Obligee at such a day , and before the said day I dye , my Executors shall not be charged with it , for the Condition is become impossible by the Act of God , for the Land descended to the Heir , 2 Leon. p. 155. Kingwel and Chapman .

2. By the Act of the Law . If a Man be bound in a Recognisance for the appearance of another in a Scire-Fac . he shall not avoid this Recognisance by saying , that he which ought to appear was imprisoned at the day , 1 Rolls Abr. p. 452. 2 Leon. p. 189. Wood and Avery .

If a Man be obliged to repair an House or build a Mill , he is excused , if the Obligee will not suffer him to do it ; or if a Stranger by the Command of the Obligee disturb him , and will not suffer him , 1 Rolls Abr. 453.3.4.5 .

A Condition that the Son of the Obligor shall serve the Obligee seven years , if he tender the Son and the Obligee refuse , it is no Forfeiture ; 22 E. 4.26 . 2 E. 4.2 . So if he take him , and after within the Term command him to go from him , Vid. ibid. 1 Rolls Abr. 455.

If the thing to be performed by the Condition may not be performed without the presence of the Obligee , there his absence shall excuse the performance , 12 H. 4.23 . b. cited 1 Rolls Abr. 457. As if the Condition be to make a Feoffinent to the Obligee . Aliter , if it be to enter into a Statute to the Obligee , for that may be performed in his absence .

A Condition to enfeoff the Obligee , though the Obligee disseise him of the Land , yet this shall not excuse the performance of the Condition , for he may re-enter and perform it ; but if he keep it with force till after the day of performance , it shall excuse , 1 Rolls Abr. 453 , 454. Frances's Case , 8 Rep. 92.

If the Obligor by his own Act hath made the Condition impossible , it is a Forfeiture , 4 H. 7. 3 , 4. Vid. Keilway p. 60. Abbot of Glassenbury's Case .

Where a Refusal of one of the Obligors shall be a Refusal of both .

Two are bound in a Statute with Defeasance , that they two shall make such assurance as shall be devised , &c. If an Assurance be devised and tendered to one , and he refuse to seal this , the Condition is broken by both ; for he need not make Request to both at one time , 1 Rolls Abridg● 454.13 .

The Condition is to pay 20 l. to the , &c. or before such a day render the Body of a Stranger , &c. so as the Plaintiff may declare against him ; the Defendant pleads , before the day the Stranger died , a good Plea , though the Obligor undertakes for a third person , which differs from Laughter's Case . Payment or Tender are to be at the same time , therefore a discharge of one , a discharge of both . Contra , if the Acts were to be done at different days . The Condition was to run a race , or pay by a day , and adjudged that the Defendant was discharged by the death of the Horse , 3 Keb. 738 , 761 , 770. Warner and White .

If one is bound to pay 20 l. before the 1st day of May , or to marry A. S. before the 1st of Aug. if he do not pay the 20 l. before the 1st of May , and A. S. dies before August , so that it is become impossible ; yet the Obligation is forselted . Quaere , He hath undertaken to do one , and it was in his power , Crook Eliz. p. 864. More's Case .

3. By the Act of the Obligee . If A. be bound to B. that J. S. shall marry Jane G. by such a day , and before the day B. himself marry with Jane G. hereby the Obligation is discharged , and B. shall never take advantage of it , Co. Lit. 206. a●b .

If the Obligee be party to an Act that hinders the performance of the Condition , it shall excuse , 4 H. 7.4 . b.

One is bound to stand to the award of , &c. he may countermand the Arbitrators ; but then he forfeits his Bond , because the Obligor by his own Act hath made the Condition of the Obligation ( which was endorsed for the benefit of the Obligor to save him from the penalty of the Obligation ) impossible to be performed , and by consequence his Obligation is become single , and without the benefit or help of any Condition , because he hath disabled himself to perform the Condition . If one be bound in an Obligation with a Condition that the Obligor shall give leave to the Obligee for the time of seven years to carry Wood , &c. though he give him leave , yet if he countermand it or discharge the Obligee , the Obligation is forfeited , 8 Rep. 82. b. Viniors Case .

Refusal at the day shall save the penalty , 1 Rolls Abridg. 448. Vid. Tender and Refusal . Shep. Touchston p. 393.

One is obliged to another to the use of a third person to deliver a Chest to the said third person , who refused to receive it upon the tender at day , the Obligation is saved , it being to the use of the third person , and he shall not take advantage of his own act , Carne and Savery cited in Huish and Phillip's Case , Crook Eliz. 754.

A Bond is delivered to J. S. to my use , and when it is tendered to me I refuse , hereby it is become void and cannot afterwards be made good ; so if an Obligation be made to my Wife and I disagree to it , 5 Rep. 119. Whelpdale's Case , 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 Michaelma● 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 Le●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 l. or a Pint of Wine upon request , ibid. 18 Ed. 4.20 , 21. So if it be to go to York , or marry my Daughter upon request ; for in all these Cases the request had no other effect but to appoint a time when the Obligor should do the one or the other , ibid.

If I am bound to pay 5 l. at the Feast of P. next , or before , &c. at the request of the Obligee ; the Obligor hath given his consent that the Obligee shall have the Election in this Case , Dyer 1 , 2. M. 108.32 . Aliter if it had been to pay 5 l. before the Feast of P. at the request of the Obligee , or at the Feast of P. there the Obligor had the Election , ibid.

Condition if the Obligor deliver certain Obligations to the Obligee before such a day to be cancelled , or else if he seal a Deed of Release of all Actions which the Obligee shall cause to be made by the advice of his Council , and shall deliver it to the Obligee to be sealed before the day aforesaid , &c. both are in the Election of the Obligor , for if the Obligee doth not deliver him any Release to be sealed by him , he is not bound to deliver the Bonds , id . Case , Cro. El. p. 396 , 539. 1 Rolls Abr. 447. Greningham and Ewer , Moor n. 492. And if he had delivered him a Release , then he ought to have Election to deliver the Bonds , or to seal the Release , ibid.

Condition is to deliver such Obligation before such a day , or to pay to him 10 l. if he request this , if he doth not request the 10 l. the Obligor ought to deliver the Obligation , for he had not Election until request made ; but after request made he had Election which of them he would do , id . ibid.

Condition was that H. should make a Conveyance when he came to twenty one years of Age , or in default thereof the Defendant should pay 50 l. the Defendant hath not Election ; if he do not the one , he must do the other , 1 Keble 230. Johnson and Bridges .

Condition to deliver to the Plaintiff before such a Feast , such a Ship and Tackle , or in default thereof to pay at the same Feast such a Sum as J. S. shall value them to be worth ; the Defendant pleads before such a Feast J. S. did not value them ; upon Demurrer , pro Quer. for though the Obligor hath Election to do the one or the other , yet the Condition being for his benefit , he ought to provide the value should be assessed , otherwise he is to deliver the Goods themselves ; so if one be obliged to make such an Assurance of such Land as the Councel of the Obligee before such a day shall oblige , or to pay there , and then 100 l. If the Councel devise not any assurance , he ought to pay the 100 l. Cro. M. 43 Eliz. pl. 42. More and Morecomb .

Condition that the Obligor should pay to the Obligee , &c. at the choice and election of the Obligee within a month after the death of J. S. 30 l. or twenty Kine ; the Defendant pleads that the Plaintiff within the month after the death , &c. did not make any choice or election : Per C●r . it s a good Plea , for the Obligor is not boun● 〈◊〉 make a tender of both ; and the Election of the Plaintiff ought to precede the Tender of the Defendant , 1 Leon. p. 69 , 70. Basset and Ke● Case .

The Defendant was bound to the Lord Lisle to shew his Evidences touching such an House , to the said Lord or his Councel ; the Election was to the Defendant to whom he would shew them , 18 Ed. 4.15 , 17 , 20 , 21.

Where the Condition is in the Disjunctive , before the day of performance , the Election is to the Obligor ; but if at the day he make default , the Election is to the Obligee , 9 Ed. 4.36 , 37.

If I am bound to you in a Bond , &c. to pay to you such a day 10 l. in Gold or Silver , if you do not make your Election before the day , yet the Duty remains payable ; for the thing to be paid is parcel of the Penalty , per Concessum Curia , in 1 Leon. p. 70.

Condition , if the above bounden J. B. &c. shall within six months after the death of , &c. assure unto the said H. B. as the Councel of the said H. B. shall advise , one Annuity of , &c. during H. B's Life , payable after M's decease , if the said H. B. require the same at the Dwelling-house , &c. or if he shall not grant the same , if then the said J. B. shall pay unto H. B. within the time aforementioned 300 l. then , &c. The Defendant pleads the Plaintiff H. B. had not tendred any grant of an Annuity within the time of six months after the death of his Mother : Per Cur. the Obligors Election is taken away by the Act of the Obligee himself , and the Plaintiff by his negligence hath deprived the Defendant of his Election ; Judgment pro Defendante , Mod. Rep. 264. Basset and Basset .

Condition to pay 20 l. after demand , when L. had a Son that shall or can speak the Lords Prayer in English : The Defendant pleads L. had not a Son after the Obligation made qui locutus fuit aut loqui potuit the Lords Prayer ; the Plaintiff replied he had a Son qui loqui potuit , &c. it s a good Replication , and a good Issue , for the Condition being in the Disjunctive , he may alledge the one or the other at Election ; and the power of speaking shall be proved by those that have heard him recite it , Cro. El. p. 727. Lane and Goleman .

Obligation and Condition void by Duress , Minas .

DUress is not intended but where the Party was wrongfully imprisoned till he make the Bond , 3 Leon. 239. Knight and Norton .

Duress pleaded , the Case on the Evidence was , Plaintiff charged the Defendant with Felony , for stealing an Horse , and procured a Warrant from a Justice of Peace , whereby he was taken , and being in Custody , upon promise of the Plaintiff to discharge him , sealed the Bond , and thereupon was immediately discharged ; and it appeared that the Horse was the Defendants own Horse ; and Roll directed the Jury that the Bond was gotten by Duress , these Proceedings being but to cover the deceipt , Allen p. 92.

The Defendant pleads duress of Imprisonment ; it s no good Replication for the Plaintiff to say , that menac't to bring a Suit against him for Arrears of Rent according to Law , and by Process of Law to imprison him if he can , unless he would seal the Obligation , for this is not any answer to the Bar , 16 Ed. 4.7 . b.

It s no Plea that it was done by duress , by a Stranger , without making the Obligee Party to the duress , Keil . 154. a.

If the Defendant pleads the Obligation was made by duress of Imprisonment , and by Menace of Imprisonment , its double , 1 Com. 140. a. 19 Ed. 4.4 . declares that the Obligation was made to B. it s a good Plea for the Defendant to say that the Obligation was made to S. by duress , without any Traverse , for this is but matter of supposal , 22 Ed. 4.40 . by Jenny .

The Defendant pleads that Roberts was imprisoned , and this Bond was given by him and the Defendant for enlargment ; the Plaintiff demurred , Judgment pro Quer. this Roberts being no Father , Husband , Wife or near Relation , in which Cases the Bond would be void , 3 Keble 238. Warn and Sandowne , Duress . Br. 9.

The Husband may avoid the Deed that he hath sealed by the duress of Imprisonment of his Wife or Son , but not of his Servant ; so Mayor and Commonalty may avoid a Deed sealed by duress of imprisonment of the Mayor , 2 Brownl. 276.

In Issue per Minas the Jury find it was per metum imprisonament' . Per Cur. the duress ought to be pleaded specially , but the Verdict being , that the Plaintiff threatned quod imprisonaret defendent . & crimen feloniae ei imponeret nisi , &c. it s ill , being no more than by Law he may charge him with , 1 Keble p. 516. Picard and Lawrence .

The Defendant after Issue de duress at the Assise , relicta verificatione quod ipse non potest decere actionem , &c. vide the Form of the Entry , and the Error was decere for dedicere , and reverst , Cro. Jac. 343. Anonymus .

Debt by H. I. Executor of S. the Defendant pleads per minas , and after Issue joined before the Nisi prius confesseth the Action ; the Confession is in the debuit only , whereas it ought to be in the detinet ; Per Cur. after the Defendant hath relinquished the Bar , the Declaration remains without defence , and so pro Quer. Moor n. 921. Joyner , and Ognel .

The Defendant pleads duress ; The Plaintiff saith to this he shall not be received , for that at such a day after the date of the Obligation , the Obligation was enrolled in Chancery , Cur. pro Quer. in such case he may not deny his Deed , 16 H. 7.5 .

Debt upon Bond in Inferior Court , duress was pleaded , and no place certain alledged ; this may be ill upon a special Demurrer , but is well after a Verdict , there being a place where the Obligation was made infra jurisdictionem , and the Party cannot plead duress unless where the Bond was actually sealed , 2 Keble 630. Cubit and Green .

The Defendant pleads he made it per minas de vita , &c. the Plaintiff said he did it spontanea voluntate , and traversed the minas . The Plaintiff cognovit Actionem , and vide the Entry , Cro. El. p. 840. Brown and Holland .

Exposition of Conditions

About payment of Mony , doing other Acts.

About payment of Mony .

Persons to whom to be paid , or performance of other things .

By whom to be paid or performed .

Time of payment or performance .

Place of payment or performance .

Persons to whom payment is to be made , or who are assigns for performance .

THE Condition is to pay 10 l. to such a Person as the Obligee shall name by his last Will , and after the Obligee names none by his Will , the Obligor is not bound to pay this to the Executor , for the Condition hath reference to his nomination , 1 Rolls Abr. p. 421. Tit. Condition , Pease and Mead , Moor n. 1106. Hob. p. 9. vi● Hob. 1 Brownl. 77. contra .

The Condition of the Obligation is to le● certain Lands for three Lives to the Obligee of his Assigns , and after the Obligee demands a Le●e to be made to three Strangers for their Lives , 〈◊〉 ought to do this , otherwise the Condition is broken , for by the word ( Assigns ) here is in●ed Assigns by nomination , for he may not have other Assigns , for the Estate is not assignable before he hath it , 1 Rolls Abr. p. 421. Allen and Wedgwood .

If I am bound to pay Monies to two actually , I can pay this but to one , for that I cannot pay one and the same Sum to two several Persons at the same time , per Glyn , 2 Siderfin p. 41. Abbots Case .

A Condition to pay to B. and his Assigns 100 l. the Declaration was , that he had not paid this to B. to which exception was taken , for that he might have paid this to his Assigns , and adjudged a good exception , 2 Siderfin p. 41.

Payment to a Scrivener is sufficient , especially if he have the Bond in his Custody , 3 Keble 471. Jacob and Searles . Q. in 2 Keble 249. Hicks and Loging .

A Condition to pay Mony to the Obligee , and the Parishioners of D. at such a day ; payment to the Obligee , and two of the Parishioners , is good , Moor n. 175.

A Condition is to pay 10 l. it s a good performance if he pay this to his Deputy , 42 Ed. 3.13 . b.

If Judgment be given in Debt , and the Mony is paid to the Attorny of the Plaintiff , though the Attorny miscarry with the Mony , yet the payment is good ; but if a Scrivener is imployed generally to put Mony to use for a year , and the Monies are paid to the Scrivener , who breaks , this payment shall not excuse the Party ; but if he receive this by special command , it s a good cause of Equity , Lit. p. 54. Cro. El. 313. Dr. Ford versus Hollingbrough , Lit. Rep. 156. Manningtons Case , Lit. Rep. 173. Parsons and Evar.

What Persons are to pay or do a thing by the Condition .

IF it be not set down in the Condition who shall do a thing , if the Obligee hath more skill he shall do , or else the Obligor if he have more skill shall do it . A Tailor is bound to me , that if I bring him three yards of Cloth which shall be measured and shaped , and if he make ●e a Cloak of it , and it is not said by whom it shall be shaped , it must be done by the Tailor , Perk. sect. 785.

A Condition of a Bond to pay Mony ; if my Servant by my command tender this to the Obligee , this is sufficient , 2 H. 6.3 . b.

Vide infra Exposition of Conditions .

Of payment of Mony on a Bond in general .

THE Defendant owed the Plaintiff Mony upon on Bond , and also Mony for Wares sold ; at the day of payment of the Bond he tendered the Mony according to the Bond ; the Plaintiff accepted it , and said it should be for the Debt due upon the Contract , and so crost his Book ; but in Debt upon the Bond it was adjudged against the Plaintiff , for payment must be secundum ●tem dantis , non accipientis , Cro. Mich. 29 and 30 Eliz. B. R. Anonymus . Stiles p. 239. Boy● and Cranckfield .

Debt is due by Bond , and another Debt is due by the same Debtor to the same Debtee of 〈◊〉 Sum , and the Debtor pay one Sum generally ; this shall be intended payment upon the Obligation , 2 Brownl. 107 , 108.

A Condition to pay yearly such Interest Mony as 20 l. shall amount to after the rate of 10 l. per cent . when it is secundum ratam of 10 l. per cent . the Court knows well that is 40 s. per ann. Cro. Jac. p. 378. Williamson and Hunt .

Payment of a lesser Sum before the day , 2 Keb. 628. Chapman and Wyn. vide plus de hoc infra Tit. Pleading .

In what Cases a collateral thing may be given in satisfaction of a Condition , for payment of some other thing in lieu of Mony .

ACceptance of another Bond no good Plea , so of a Statute , Cro. Car. 85. vide 3 Bulst. 148. 1 Rolls Rep. 266. Foorwood and Dickens .

The Defendant pleads he paid an Horse in name of the 20 s. or sold Land to the Plaintiff for it ; it s a good performance , 11 H. 7.21 .

If a Man be bound in 20 l. to do a collateral Act , as to make a Feoffment , to be bound in a Statute to render a true account , there Mony or any other thing given in satisfaction , is not any performance of the Condition , 9 Rep. Peyto's Case , 1 Rolls Abr. 455.

But where the Condition is to pay Mony , there any other collateral thing will be satisfaction , id . ibid.

A Man bound in 200 Quarters of Corn on condition to pay 20 l. a Ring or Horse , or other thing collateral is satisfaction , 9 Rep. 79. Peyto's Case .

But if the Condition were to pay 5 Quarters Mony or other collateral thing is not satisfaction , because of the original Contract , ib. ibid.

If the Condition be to pay a lesser Sum at the day , if the Obligee agree he shall pay an Horse or other thing in satisfaction , yet if he refuse this at the day , the Obligor ought to pay that lesser Sum at the day , 1 Rolls Abr. 456. vide plus ibid.

A Condition was to pay , &c. on the Birth day of the first Child of the Obligee ; the Defendant pleads after the Bond entred into , and before the Birth of the Child , the Plaintiff accepted of the Defendant one Load of Lime in full satisfaction of the said Debt , and in full discharge dicti scripti Obligatorii , it s no good Plea , but he might well have pleaded this Acceptance in full satisfaction of the Sum of Mony contained in the Condition of the Bond , 1 Bulst . 66. Cro. Jac. 254. Yelv. p. 192. 1 Brownl . Rep. 109. Neal and Sheffield .

If a Condition be to build an House of so much in length , &c. he may not plead another Agreement in other manner in satisfaction of this , unless it be by Deed.

Entring a new Obligation with Surety is no discharge of the first , for it s but a thing in action , and not present satisfaction , 1 Rolls Abr. 470. Hawes and Burch , Lovelace and Andrews , so entring into Obligation is no satisfaction of a Statute , ibid. 12 H. 4.23 . b.

A Condition to pay 25 l. at Michaelmas , and the Obligor lets Land to B. the Obligee rendring 35 l. Rent at the said Feast , and after , and before the day of payment concordat . & agreeat . est , that the Obligee shall retain 25 l. of the said Rent in satisfaction of the Bond ; and for the residue he shall answer the Obligor ; and the Obligor because of the said Agreement doth not pay the 25 l. at the day , the Obligation is forfeited ; this Agreement can be no discharge , for the Rent at the time of the Agreement was not due , 1 Rolls Abr. 470. Harrington and Andrews .

A Condition to pay 10 l. at a day which is not paid , but after the day the Obligee accepts of a Statute-Staple in full satisfaction of the Obligation , yet the Bond is in force , and the Obligee had Election to sue which he will , 1 Rolls Abr. 470. Bathaites Case , 6 Co. 44. b. Higgens Case .

A Condition to pay 100 Marks at a day , and at the day the Obligor and Obligee account together at another place , and for that the Obligee owes to the Obligor 20 l. by other Contract , the Obligee allows the 20 l. in the payment of the 100 Marks ; this is a good satisfaction of the Condition , its payment by way of retainer , 1 Rolls Abr. p. 471 , 475.

The Obligor and Obligee before the day of payment agree that the Obligor shall do several things , and amongst others , to assign his Interest in the Farm of the Customs of French Wines , and he pleads he hath done all in particular , and shews how , and it appearing to the Court that he may not by Law assign his Interest in the said Customs , though the Obligee had enjoyed them , yet this is not a good discharge of the Obligation , in as much as this is like to an Accord , so that all ought to be performed , otherwise it s not good , for that the Obligee had not any remedy for this that is not performed , 1 Rolls Abr. 471. Simons and Mowlstone .

A Condition to pay 20 l. at day , and a Stranger surrenders a Copy-hold to the use of the Obligee in satisfaction of the 20 l. which the Obligee accepts ; this is a good satisfaction , and discharge of the Obligation , 1 Rolls 471. Grymes and Blofield , vid. cont. Cro. El. 541.

A Condition to appear before the Plaintiff at D. such a day ; the Defendant saith he appeared before the Plaintiff at S. before the day , which he accepted of : Cur. pro Quer. because the Condition was to do a collateral thing , and the acceptance of another thing cannot dispense therewith , Cro. Eliz. p. 474. p. 38 Eliz. Nortons Case .

The Defendant pleads J. S. surrendred a Copy-hold Tenement to the use of the Plaintiff in satisfaction of the 20 l. which the Plaintiff accepted ; no Plea , for J. S. is a meer Stranger to the Condition , and satisfaction by him not good , Cro. El. p. 541. Grimes and Blofield .

Time of payment , or performance , where time is limited .

IF I pay Mony due upon Bond before the day , I am discharged , for its a Duty presently , 9 H. 7.21 . a.

The Defendant pleads payment at the day and place according to the Condition , upon which they were at Issue ; the Jury find he paid it before the day , and at another place , and the Plaintiff accepted it ; Verdict was found for the Defendant , for payment before the day , is payment at the day , Cro. Trin. 31 El. Bond vers. Richardson . 1 Leon. p. 311. id . Case . 1 Anderson pl. 233.

The Condition was to pay 100 l. on the 31st day of Septemb. the Defendant pleads payment at the day , upon which Issue , and found for the Plaintiff , the payment being impossible , it shall be paid presently ; this Issue is aided after Verdict by the Statute 13 Eliz. Latch . p. 158. Gibbon and Purchase , Cro. Car. 78. Jones 140.

Debt for 300 l. the Defendant pleads he paid the Mony such a day , whereas in truth the Case was , there were two days of payment limited in the Obligation , and the Defendant had paid part of the Mony on one day , and the rest on the other , and not all on one day ; the Plaintiff replies , He did not pay the Mony at the day , &c. Issue and Verdict pro Quer. and in Arrest of Judgment per Rolls , If you have two days of payment to plead , and you relie upon one day in your pleading , and Issue is joined upon that , and it be found against you , you must be barred , Stiles p. 93. Anonymus .

If an Obligation be made the 17th day of November , Anno 12 Jac. And the Condition is to pay 5 l. the 21st . day of November ensuing , and 5 l. the 20th day of December next after ; the first 5 l. ought to be paid the 21 Nov. 12 Jac. for it refers to the day and not to the month , 1 Rolls Abr. 442. Price and Coa .

If a Condition be to pay 10 s. when A. comes to his House , and 10 s. at the Feast of St. Michael , and then at the Feast of St. Andrew then next ensuing 10 s. these last Sums ought to be paid at the said next Feasts or Time , and not at the next Feasts after A. comes to his House , ibid.

If a Condition be to pay so much citra such a Feast , it ought to be paid on the Eve of the said Feast , and not on the Feast day ; the same Law is , If it be paid infra Festum , or ante Festum , but if it be to be paid in Festo , it must be on the Feast day , 1 Rolls Abr. Tit. Condition , p. 442.

Condition of an Obligation upon an Adventure to New-found Land , to pay so much Mony within 40 days next after the Ship shall make her first return and arrival this Voyage from New-found Land into the Port of Dartmouth , or into any Harbor , Creek or Part of England where she shall first unlade her Goods , and after the Ship doth return to Plimouth , where she unlades her Goods , the Obligor is to pay the Monies within 40 days after the arrival of the Ship , and shall not have 40 days after the unlading of the Goods ; for this is not for Fraight , but for an Adventure ; and the unlading of the Goods is only mentioned to describe the Haven where the Arrival shall be , and not to put a limitation of payment of the Monies to have 40 days after the discharge ; but perhaps it might be some doubt , if the unlading was not within 40 days ; the Plaintiff saith , He paid not the Mony within 40 days after the Arrival of the Ship , and avers that the Ship was unladen of the Goods , but no time alledged of the unlading ; and per Cur. if it were not unladen with 40 days , it ought to came on the other part to shew this , 1 Rolls Abr. Tit. Condition , 442. Leet and Cholwick , Stiles p. 30. id . Case .

The Condition was to pay at or before the 29th of September next , at such a place ; if the Obligor tender the Mony the 28th of September at the place , and the Obligee is not there , it s a void Tender , for the Tender is to be the last day ; but if the Obligor meet the Obligee at the place before the day , and then he tenders it , this is sufficient , and Obligee ought to receive it , Cro. El. p. 14. Hawly and Simpson .

A Bill Obligatory to render and pay 1188 Florens , which then amounted to 33 l. 12 s. to he paid id solutionem Festi Purification ' called Candlemass day next ensuing ; the Plaintiff in his Declaration avers , that praedictae solutiones dicti Festi Purification , next after the making of the Bill were according to the use of Merchants ; the 20th day of February ; the Defendant pleads non est factum , and found against him ; in Arrest , resolved , that payment among Merchants is known to be on the 20th of February , and the Judges ought to take notice of it , and the rather , because the Defendant by his Plea , confesseth the Declaration to be true in that Averment , 1 Brownl . Rep. 102. Pearson and Pentes .

The Condition is to pay Anno Dom. 1599. in and upon the 13th of Octob. next after the date hereof at D. where the 13th of Octob. next after the date is long time before 1599. let this shall be paid in 1599. and not before , for that is first expressed , 1 Rolls Abr. 444. Crook Eliz. p. 420. Hankinson and Kile .

The Condition , if he paid 15 l. at the Feast of St. Michael next following , and on the Feast of the Annunciation 15 l. and so yearly upon the said Feasts until H was advanced to a Benefice , that then , &c. The Defendant pleads he was presented to a Benefice before the first Feast of St. Michael , it is no Plea ; for the Advancement dischargeth not the two first Summons due at the said Feasts : The limitation ( until he be advanced ) goes only to the other subsequent Payments , Crook Eliz. p. 549. 2 Anders . 65. Countess of Warwick versus the Bishop of Coventry .

A Condition to deliver 20 Quarters of Corn on the 29th day of February next following , and that Month had but 28 days ; per Cur. he is not bound to deliver the Corn till such a year comes when February hath 29 days , and that is Leap-year , 1 Leon. 101. Anonymus .

A Condition to pay 20 l. at the Feast of our Lady , without limiting in certain what Lady-day , whether Conception , Nativity or Annunciation ; per Cur. it shall be intended such a Lady-day which should next happen and follow the date of the Bond , 3 Leon. p. 7. Anonymus . Quaere .

An Obligation dated 15 May : The Condition was to pay 20 l. the 11th day of May next ensuing ; this shall be intented the next 11th day of May , the same May when the Obligation was made , and not in the next Month of May , 2 Rolls Abr. 255. Crook Jac. 646. Prescot's Case .

A Condition to pay 60 l. on the 25th of June 12 Jac. The Defendent pleads he paid it the 20th of June 12 Jac. The Plaintiff replies , he did not pay it the said 20th of June . Issue and Verdict pro Quer. it is Error ; the Issue is taken debors the matter of the Condition , and so an ill Plea and void Issue , and not aided by the Statute of 32 H. 8. for it may be the Obligation was not forfeited , notwithstanding this Verdict , Crook Jac. 435. Holmes and Brocket .

The Defendant demanded Oyer ; which was to pay mony the 31st day of September , where in truth there are not so many days in September , and he pleads solvit ad diem upon which they were at Issue ; and found for the Plaintiff , and Judgment : For the Condition being impossible , the Obligation was due presently ; and it was an Issue upon an insufficient Bar , which being found for the Plaintiff , it is helpt by the Statute , as in Nichols's Case , in Payment pleaded in Bar upon a single Obligation , Jones Rep. p. 140. Jiggen and Purchass .

The Bond was dated in March , and the Condition was for payment super vicesimum octavum diem Martii prox . sequentem ; per Cur. it shall be understood of the currant Month ; had it been sequentis perhaps aliter , cited in Modern Rep. p. 112.

One had put himself an Apprentice to Sell for seven years , and Sell bound himself to pay to his Apprentice , his Executors or Assigns 10 l. at the time of the end or determination of his Apprentiship ; the Apprentice serves six years and then dyes ; per Cur. the Obligation is discharged . Tho per Cook , if one lease Land to another for seven years , if the Lessee should so long live , and the Lessor obligeth himself to pay 10 l. at the end of his Term , and he dies within seven years , the Mony was presently due upon his death , 1 Brownl . Rep. fo . 97. Cheney and Sell.

The Condition is that the Obligor before such a day shall make a Lease to the Obligee for 31 years , if A. B. will assent to this , and if he will not assent , then for 21 years ; the Obligor must make the one Lease or the other before the day , though A. B. might assent at any time before the day , Dyer 347. a.

If a Condition be to stand to the award of J. S. and he awards him to pay 10 l. at such a day , this is a good performance if he pay this before the day and the other accept it ; for Payment before contains Payment at the day , Berry and Perrin , 1 Rolls Abridg. tit . Condition p. 440. 30 Ed. 3.32 . b. So if the Condition be to pay so much to a Stranger , and he pay it before the day , ibid. So if the Condition be that a Stranger shall enfeoff a Stranger such a day , and he enfeoff him before the day , this is a good performance , ibid.

So if the Condition be to enfeoff a Stranger after the death of J. S. if he enfeoffs him during the Life of J. S. this is a good performance , for that it continues a good Feoffment after his death , 9 H. 7.17 , 20.

If the Condition be to make an assurance within a Month after the date of the Obligation , he is not bound by any request to do this at any certain time , but he may perform this at any time within the Month , Perpoint and Thimbleby , 1 Rolls Abr. tit . Condition 441. But if the Condition be to make farther assurance within a Month upon Request of the Obligee , if the Obligee request within the Month , and he refuse , though he be ready afterwards within the Month to do it ; yet the Obligation is forfeited , inasmuch as the time of the Month is limited to the Request , mesme Case , ibid.

The Condition of an Obligation is , If the Obligor do at all times hereafter within the space of one Month , when he shall be required , make such farther Act and Acts , Assurance and Assurances as the Obligee shall by his Counsel demand , &c. then , &c. If the Obligee do not demand any farther Assurance within the Month after the making of the Obligation , yet the Obligor is bound to make farther Assurance within a Month after Request made after the Month passed after the making the Obligation ; for that the first words , at all times hereafter , are without limit , and the other words , within one Month when he shall be required , refer to the Request ; and it is not like the common Covenant to make farther assurance within seven years ; for Usage hath interpreted this that he shall not be farther troubled after seven years , H. 1650. Wentworth and Wentworth , 1 Rolls Abr. 441.

The Latitat is ret. die Lunae prox . post Sanct. Trin. which was the 10th of July , the Sheriff arrests him the 10th of July , and takes Bond the same date with Condition to appear coram Dom. R. die Lunae prox . post crast . Trin. it seems he ought to appear the same day and not that day twelve month , 1 Rolls Abr. 444. May and Hooper .

If A. be bound 1 May with a Condition to pay to B. 10 l. at the Feast of St. Michael , without saying more , this shall be intended the Feast of St. Michael next ensuing , 1 Rolls Abridg. 444. Lewknor and Smalwood .

Payment or Performance where no time is limited : Presently , or within convenient time .

IN the Condition of a Bond for payment of Mony no time is limited , it is to be paid presently , this is , within convenient time : So in other Conditions which concern the doing of transitory Acts , as delivery of Charters , &c. Aliter of local Acts , Vid. puis , 6 Rep. 30. b. Bothies Case , Co. Lit. 208. a. 38 E. 3.12 . Crook Eliz. p. 798. Nose and Bacon , Popham p. 198. Sir Rob. Brown's Case .

If the Condition be to pay a certain Sum to a Stranger without limiting any time , this ought to be within a convenient time , 1 Rolls Abr. tit . Condition fo. 437. the Bishop of Rochester's Case .

The Condition was if the Defendant did sell the Tithes in R. that he should pay the Plaintiff such a Sum of Mony ; but if he sold them not , then he should deliver an Obligation to the Plaintiff for the payment of an express Sum at a certain day : Moved in Arrest , that he had not convenient time , and it appeared not by the Record that he had ; but per Cur. there was convenient time between the date of the Bond and bringing the Action , especially a second thing being to be performed , Stiles p. 11. Williamson and Henly .

If the Condition be to make a Retraxit of a Suit , he ought to do this within a convenient time . So if it be to acknowledg satisfaction in such a Court , 6 Rep. 30 Bothies Case , 1 Rolls Abr. 436.

If the Condition be to perform the award of J. S. who awards the Obligor to pay 10 l. without limiting any time , he ought to pay this within time convenient , 22 E. 4.25 .

A Covenant to make farther assurance at all time and times , and the Covenantee adviseth he shall levy a Fine , he shall have convenient time to do it ; for the words , at all times , shall have a reasonable Construction , 1 Rols Abridg. 441 , Perpoint and Thimbleby .

A Condition to make an Obligation to the Obligee by the advise of J. S. of 40 l. immediately , yet he shall have reasonable time to do this , 18 E. 4.21 .

Where by the Condition a thing is to be performed upon demand , yet he shall have reasonable time to perform this after demand , 15 E. 4.30 .

During the Lives of the Parties , not before Request .

WHere by the Condition the Act to be done to the Obligee is of its own nature local , as to make a Feoffment , &c. there the Obligor ( no time being limited ) hath time during his Life to perform it , if the Obligee doth not hasten the same by Request ; for this is collateral and not like to payment of Mony , Crook Eliz. 798. Nose and Bacon . Yet when the Obligor may do that that is local in the absence of the Obligee , as to acknowledge satisfaction in the Court of Kings Bench , there he must do it in time convenient , Co. Lit. 208. a. 6 Rep. 30. b. Bothes Case .

The Condition is to do such Acts , &c. for the better assurance , &c. to B. that shall be devised by B. or his Counsel , &c. B. deviseth a Release . A. not being lettered desires to shew it to Counsel before he seal it ; he shall not be allowed reasonable time to shew it , he having taken it upon him to do it , Co. 2 Rep. Manser's Case p. 1. 1 Rolls Abr. 440.

If the Condition be pay without limiting any time , he is not bound to pay before Request , 1 Rolls Abr. 438. Qu.

A Condition to make assurance before the 10th of March , and if the Obligee refuse the assurance , and shall make Request to have 100 l. in satisfaction of it , then if upon such Request within five Months after he pay it , then , &c. he refused the assurance , and ten years after he makes Request to have the 100 l. Per Cur. it is good , and he may make Request during his Life , Crook Eliz. p. 130. Boyton and Andrews , Id. Case , 1 Leon. p. 185.

The Condition is to do a thing upon Request , the Plaintiff must make Request to the person , and not by Proclamation giving notice of the Request , 1 Rolls Abr. 443. Gruit and Pinnel .

Request to , &c. Bridgm. Rep. 39. Allen and Wedgwood , 1 Rolls Rep. 373. Crook Eliz. p. 62. Gallies Case , Keilway 95.

Place of Payment or Performance : Where a Place is limited .

A Condition to pay Mony at London , the Action laid in Shrewsbury , 2 Leon. 37. Jay's Case .

If the Condition of an Obligation be to appear coram Justiciariis apud Westm . he ought to appear in B. and not in B. R. Musgrave and Robinson , 1 Rolls Abr. tit . Condition , 445.

If a place of Payment be limited by the Condition , he is not bound to pay this in any other place , 17 E. 3.16 . 1 Rolls Abr. 445.

If a place be limited by the Condition where it shall be performed , the othere is not bound to receive this in another place . If the Condition be to come to A. at Dale to aid him with his Counsel , it is not performed if he tender his Counsel at the day at another place , 1 Rolls Abridg. p. 446.

In Debt on an Obligation to pay at the House of Y. in Woodstreet magna . The Defendant pleads payment at the House of Y. generally , and the Visne is from the Parish of Woodstreet generally . Verdict and Judgment pro Quer. It is no Error , it is only in Fact , and should have been pleaded , 1 Keb. 440. Ashburnham versus Braham .

The Condition was , if he paid such a Sum of Mony at Newton Petrarch , that then , &c. The Defendant pleads payment at the day at Newton praedict . the Venire Fac. being at Newton only . A Ven. de novo was awarded , Crook Jac. p. 326. Dennis Case .

A Condition to pay 10 l. at S. such a day , or 10 l. at S. such a day , tender at D. the first day saves the Condition , 22 Ed. 4.52 . 1 Rolls Abr. 444.

A Condition to pay 10 l. at D. if the Obligee accept this at another place , it 's a good performance sans fail , 1 Rolls Abr. 456.11 .

Where no Place is limited .

IF no place be limited in the Condition for payment of the Mony , he must tender the Mony to the person of the Obligee ; but if the Condition be to deliver 20 Quarters of Wheat or 20 Load of Timber , &c. The Obligor before the day must go to the Obligee , and know where he will appoint to receive it , and there it must be delivered .

If the Condition be to make a Feoffment , it is sufficient to tender it upon the Land , for there the Livery must pass , Co. Lit. 210. b.

If the Obligee be out of England , he is not bound to seek him , ibid.

If a Man be bound to pay 20 l. at any time during his Life at a place certain , the Obligor cannot tender the Mony at the place when he will , for then the Obligee should be bound to a perpetual attendance ; but the Obligor must give the Obligee notice that at such a day he will pay the Mony , and the Obligee must attend there to receive it ; for if the Obligor then and there tender the Mony , he shall save the penalty of the Bond for ever , Co. Lit. 211. a. But if the Obligor at at any time meet the Obligee at the place , he may tender the Mony , ibid.

There is a difference between a place of payment limited in the Obligation , and a place limited in the Condition of the Obligation . For if I am bound to you in 20 l. to be paid at D. if I pay it to you at another place , this shall not excuse me ; but if I am bound in 20 l. on Condition that I shall pay it you at D. if I pay this 20 l. at another place , it is good if you receive it , 11 H. 7.17 . 9 H. 7.20 . b. Lord Cromwels Case . If the Mony be paid at any other place and received before the day , it is good , Cook Lit. 211. a.

A. is bound to B. that C. shall enfeoff D. such a day , C. is bound to seek D. to give him notice and request him to be on the Land to receive the Feoffment , ibid.

Debt upon a Bond for payment of Mony , there being no place named in the Obligation where it shall be paid . The Defendant pleads , the Plaintiff was beyond Sea at the day of payment , and saith not uncore prist : Per Cur. this a good cause of demurrer , Siderfin p. 30. H. 12 & 13 Car. 2. B. R. Hobson and Rudge .

A Condition for a common Chirurgeon to instruct his Apprentice in his Trade , and to keep him in domo sua propria & servitio . If he send him a Voyage to the East Indies to exercise his Trade , it is a Forfeiture ; but he may send him to any place in England to a Patient . Aliter , if it were a Merchants Apprentice , 1 Rolls Abr. tit . Condition , p. 445. Coventre and Boswel .

The Lessee is bound by an Obligation to pay the Rent , the Lessee is not bound to seek the Lessor , to tender it on the Land , Hobart p. 8. Baker and Spain .

In Debt on an Obligation to pay at the House of one Y. in Woodstreet magna . The Defendant pleads payment at the House of Y. generally , and the Visne is of the Parish of Woodstreet generally . Verdict pro Quer. and Judgment . It is no Error , it is only in Fact , and should have been pleaded , 1 Keble p. 440. Ashburnham versus Braham .

Debt in an inferior Court , the Condition was for the payment of Mony at a time , but no place was limited in the Condition for the payment thereof . Judgment pro Quer. 'T was Error , because there appears no place of payment : So that by that it cannot appear whether the cause of Action lyeth within the Jurisdiction of the Court where the Action was brought or not ; therefore it should have been made appear by some part of the Record , that the Mony was to be paid within the Jurisdiction of the Court , which is not here done , and therefore Judgment erroneous , Stiles p. 2. Masterman's Case .

Judgment in the Court at Barnstaple upon an Obligation , and assigns for Error , that the Condition was to pay Mony at W. which is not within the Jurisdiction of the Court . Per Rolls , if it appear by the Declaration that the Mony was to be paid out of the Jurisdiction of the Court , the Judgment is not good , and it is not necessary to swear this Plea , Stiles p. 225. 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 the Quire of Paper to write at the rate of so much per Quire for odd Sheets : Per Hales so much per Tun must be intended amongst Traders to include pro rata , for over or under measure ; but here the Breach is assigned in non-payment of the whole , and saith not nec aliquam partem inde , 3 Keble Hill . 26 Car. 2 B. R. pl. 105. Ree and Barnes .

A Condition to pay all such Sums of Mony as my Lord Chancellor should Tax for Costs ; Sir Robert Rich reports , he thinks , 170 l. to be a fit Sum ; the Chancellor subscribes , Let Costs be taxed according to the Report ; it s a good Taxation according to the Condition , Harris and Pecks Case .

A Condition to pay the Wise 50 l. per annum ( on separation ) and for non-payment the Action is brought ; on Oyer , it was provided the Wife should live at such a place as A. shall appoint ; Breach assigned , that she did not live so ; the Plaintiff replies , there was no place appointed ; the Defendant demurs ; but this being not a Condition precedent , but a Defeasance , there must be an appointment , 3 Keble 229. Leech and Beer .

A Condition that G. Deputy Post-Master of Oxon , for six months , should pay all such Sums as he received while he continued Post-Master ; on Oyer the Defendant pleads performance generally ; the Plaintiff replies , G. continued two years longer Post-Master , and such a day received so much , and paid not over : Per Cur. no Action lay , the six months being past , and the continuance after must be on new agreement , 3 Keb. 45 , 59. Lord Arlington versus Merick .

A Condition to pay such Sums of Mony for Tithes which should be levied , and upon Oyer of the Condition the Plaintiff demurs , and the question was , whether these words ( which should be levied ) shall not be construed levied , or to be levied ; and whether taxed , levied or assessed be not all one ; and agreed by the Court that it is so .

A Condition , if one who was receiver of his Profits should truly pay unto him omnia recepta & recipienda in the said Office ; the Defendant pleads he had paid all which he had received : Per Cur. he must give account of both , 1 Bulstr. 174. Hewet and Painter .

A Condition , that the Defendant shall pay from time to time the moiety of all such Mony as he shall receive as Executor ; the Defendant pleads he paid the moiety of all such Sums as came to his Hands ante diem exhibitionis Billae : Per Cur. it s a good Plea without shewing the particular Sums to avoid stuffing with multiplicity , and this being from time to time , it would be infinite ; but if it had been to pay the moiety of such Mony as he shall receive , without saying ( from time to time ) he ought to plead specially ; and another difference is this , Where the thing lies only in the Defendants notice , as to deliver all the Mony in my Pocket , there I must plead specially ; but here others may take notice of it , and the Plaintiff may reply , the Defendant received such a Sum , whereof he had not paid the moiety : But the Case of H. 7. If a Baker be bound to deliver over such Bread as from time to time he shall receive , that in an Action against him , he ought to plead how much he had received , was admitted for Law . Mr. Siderfin makes a Quere of this difference ; cave studens , I conceive in the principal Case it is a distinction without a difference . 2 Keble 220. Siderfin p. 19. Car. 2. B. R. pl. 18. Church versus Brownwick .

A Condition to pay Mony on warning .

A Condition for payment of 100 l. the 10th day of January next ensuing , on three months warning , ( being dated 1 July , ) the Defendant pleads he had not warning three months before the Action brought ; if the warning be intended three months before any 10th day of January , then it must be given by the Obligor . Per Twisden , the 10th day of January may be intended next after three months warning , not next after the Bond. Per Windham , had the Mony been payable the 10th of January next after the Bond , and three months warning by the Obligee , though that day pass without warning , yet the Mony is not lost ; but three months warning may be given after to the Obligor , and he is bound to pay , the ascertaining the day being for his benefit ; payment may be made any January upon three months warning , 1 Keble 380 , 415. Lawson and Withrington . Cave .

Condition to pay Mony at several days .

A Condition to pay Mony at several days ; the Defendant pleads particular payments according to the Condition ; the Plaintiff replies , He did not pay at such a day certain , & hoc paratus est verificare ; ill conclusion , but it s not substance , and so must be specially demurred to ; it ought to be & de hoc ponit , &c. but on performance generally pleaded , the Plaintiff may reply with a particular Breach , & hoc paratus , &c. and leave the Issue to the Defendant , 1 Keb. 759 , 766. Charlton and Fine .

If a Man be bound in a Bond , or by Contract to another , to pay 100 l. at five several days , he shall not have Action of Debt before the last day be past , alit ' in Recognizance , Covenant and Promise . C. L.

The Condition was , If the Obligor pay 100 Marks to the Obligee , during the seven years next ensuing , at two Feasts by equal portions , then , &c. the Defendant pleads he had paid 100 Marks during the said seven years , at the said Feasts , and demands Judgment si Actio ; it s a good Plea , for want of the word ( yearly ) the Obligor is bound to pay but 100 Marks . Benlow . n. 18. durus sermo .

A Condition to pay 400 l. half yearly , per Cur. until Judgment , that a Record is made of the Bond ; it may be sued on any later Breach , and the Defendant cannot plead any Breach before ; and before Plea pleaded , the constant Course of the Court is to accept tender of the Mony and Charges , 2 Keble p. 553 , 555. Stern and Vanburge .

Debt for non-performance of Articles , which were to pay so much in certain , at two days , per equales portiones ; the Defendant saith , He had paid accordingly ; the Plaintiff replies , He had not paid accordingly ; the Defendant demurs generally : Per Cur. the Replication is a double Plea , for this goes to both days , 1 Rolls Rep. 112. Sanders and Crawley .

A Condition to pay Mony on a voyage ; and Pleading .

TO pay Mony on the return of a Ship ; the Defendant pleads , the Ship was lost before the return ; the Plaintiff replies , The Ship returned such a day , and that the Defendant did not pay Mony , absque hoc ; that the Ship was lost ; the Defendant demurs , it s an ill Traverse , the not payment and return being sufficient without it ; its sufficient to say that the Ship returned such a day , and the Plaintiff hath not paid , Et hoc paratus , &c. 2 Keble 668. Wright and Bradcack .

A Condition to proceed in a Voyage and Return , ( the dangers 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 is not good unless he shew the Deed and plead this ; and it is not sufficient to shew the Deed when the Plaintiff replies and prays Oyer , because the Plea of the Defendant ought to be special , if any of the Covenants are in the negative ; and it appears not to the Court whether the Covenants are negative or affirmative until the Deed be shewn ; this hath been a controverted Point in our Books ; and in case the Party who will plead the Deed had not this , he ought to move the Court , and the Court will order he shall have the Deed , or a Copy of it , Siderfin 1. p. 50 , 97. Lewis versus Ball , and p. 425. Tapscot and Wooldridge .

If he pleads performance generally , without shewing the Indenture , I may demur to it , 1 Siderfin p. 425. Tapscots Case .

In Debt on Bond for performance , the Defendant cannot now pray Oyer as heretofore , but must plead to the Indenture , and produce it to the Court ; misentry of the date of the Deed upon Oyer , may be amended , 1 Keble 104. Anonymus .

The Defendant pleads it was upon Condition to perform Covenants in an Indenture , hic in Curi● prolat . and in truth the Deed was not indented ; the Plaintiff had Judgment , 5 Rep. 20 b. Stiles Case , Cro. El. 472. mesme Case .

The Defendant demands Oyer of the Condition , & ei legitur , which was to perform Covenants ; the Plaintiff demurs generally , because the Defendant saith not profert hic in Cur. the Indenture ; for as the Plaintiff profert hic in Cur. the Obligation on which he declares ; so the Defendant ought to poferre in Cur. the Indenture which he pleads , for otherwise he may recite this in pleading , and the Plaintiff may not have answer or remedy ; this is aided by the Statute 27 Eliz. being matter of form , otherwise had it been upon special Demurrer ; the Entry upon the Roll always supposeth this to be brought into Court per the Defendant , and the Court may compe● the Plaintiff to give a Copy to the Defendant , if he swear he never had any part , or that he hath lost it , 1 Siderfin p. 208. 1 Sanders p. 8. 2 Keble p. 102. Jevans and Harridge .

A Condition to perform Covenants ; the Defendant pleads after the making the Bond , and before the Writ , the Indenture was cancelled by the Plaintiff ; ill Plea , for the Bond might be forfeited ; he ought to have pleaded performance of Covenants till such a day , which day the Indenture , was cancelled , 1 Brownl . 78. Anonymus .

The Condition was to perform all Covenants comprised within certain Indentures bearing even date with the Obligation , ( and in truth the Obligation and Indenture were both without date , ) Per Cur. they ought to have averred a date of the Obligation , and averred also that the Indenturs bore the same date with the Obligation , Anonymus , Noy p. 21.

A Condition for performance of Covenants , whereof some are void by Common Law , yet it shall stand good for the rest ; otherwise where part is void by Statute Law , all is void , Hob. p. 14. Sir Daniel Nortons Case , Cro. El. p. 529. Lee vers. Coleshil .

A Condition for performance of Covenants ; though the Covenants broken be released , yet the Bond remains under Forfeiture , Hob. p. 168.

Where an Act is to be done according to a Covenant , he who pleads the performance ought to plead it specially , otherwise where it is a permittance , then it is as in the negative , in which Case permisit is a good Plea , and then it shall come on the Plaintiffs part to shew how the Defendant non permisit , ● Leon. 136. Littleton and Perne .

If the Defendant pleads generally performance of Covenants , where some in the negative , and some in the affirmative ; and the Plaintiff doth demur generally upon it , without shewing cause of Demurrer , Judgment shall be given according to the truth of the Case , for that default of Pleading is but matter of form , and is aided by the Statute 27 Eliz. except the Plaintiff for cause sheweth some are in the negative , and some in the affirmative ; but if any of the Covenants be in the disjunctive , so as it is in the election of the Covenantor to do the one or other ; then it ought to be specially pleaded , and the performance of it , for otherwise the Court cannot know what part hath been performed , 1 Leon. 311. Oglet horp and Hide .

A Condition was for the performance of Covenants within a certain Indenture , whereof some of the Covenants were in the affirmative and some in the negative ; he pleaded the Indenture and performance of the all Covenants therein generally ; and it was thereupon demurred , and without argument adjudged for the Plaintiff , Cro. El. p. ●91 . Cropwel and Peachy .

In Debt sur Bond conditioned to perform Covenants of Under-sheriffs Bailiff , part in the negative and part in the affirmative ; the Defendant as to those in the negative , pleaded negatively ; and as to those in the affirmative that he had observed them ; to which the Plaintiff replieth , that the Defendant was not assisting at the Arrest of J. S. to which the Defendant demurred : Per Cur. the Plea is ill without shewing how he had performed them , and yet the Replication is good to shew a cause of Action ; for the naughty Plea was a trap that the Plaintiff should have demurred to , and so no cause of Action would appear ; Judgment pro Quer. nisi , &c. 2 Keble 405. Cl●vel versus Galler .

By the course of the Court upon Bonds of vast Sums to perform Articles , or Covenants , in Debt for non-performance may be common Bail , or according to the value of the Breach assigned at the discretion of the Judges , 1 Keble 124. Siderfin 63. Boothbyes Case .

A Condition to perform Covenants and Agreements ; one was that the Plaintiff had covenanted with the Defendant , that it should be lawful for the Defendant to cut down Wood for Fire-boot and Hedge-boot , without making waste or cutting more than necessary ; the Plaintiff assigns a Breach in that Covenant ( which is in truth the Plaintiffs Covenant , ) exception was , That the Condition ought but to extend unto Covenants to be performed on the part of the Lessee ; non allocatur , it is the agreement of the Lessee , though its the Covenant of the Lessor , 1 Leon. 324. Stevensons Case .

A Condition for performance of Covenants , one is against the Statute of buying Offices , the other is a good Covenant , and not concerning that , the Obligation is void in all ; but for the good Covenant Action of Covenant will lie , Cro. El. 529. Lee and Coleshil , Q.

Debt on Bond to perform Articles ; the Plaintiff Covenants to assign over his Trade to the Defendant , and that he should not take away any of his Customers , and in consideration of performance thereof , the Defendant covenants to pay the Plaintiff 60 l. per annum for Life , and pleads , that after the agreement the Plaintiff before any thing done did work to J. S. a Customer ; the Plaintiff demurs , Judgment pro Quer. this is not a Condition precedent , but these are mutual Covenants , the Plaintiff need not stay to wait for performance , perhaps then he may stay as long as he lives ; but as on Bonds of Abritrament on breach of either Party hath remedy , 2 Keble 674. Modern Rep. 64. Siderfin 464. Humlock and Blacklow .

In Debt for performance of Covenants , they must be set out in Latin , Allen p. 87.

Of Assignment of a Breach on Bonds of Covenant .

IF Breach be assigned after the Action brought , its ill ; the Defendant demands Oyer of the Obligation , and it was for performance of Covenants ; the Plaintiff replies , and assigns a Breach in non-payment of the Rent the 20th day of June , 17 Car. and the Bill was filed Trin. 17 Car. which Term ended the 14th of June , therefore ill , Siderfin 307. Champions Case .

Bond of Covenants to perform the Indenture of a demise ; the Plaintiff declares he made the Lease the 28th of May to the Defendant , and that postea scil. 27th of the same month of May the Defendant broke the Covenant : Demur , because the breach is set forth before the Lease began , and so no cause of Action ; but by Bacon , where the postea & scil . are repugnant , as here they are , the postea shall be good to signifie the time of the Covenant broken , and the ( scil. ) shall be void , Stiles p. 45. Anonymus .

If an Obligation conditioned for payment of Mony become payable , hanging the Action , this had made the Action good ; otherwise where it is conditioned for performance of Covenants , and there is a Breach pendent the Action , Q. Siderfin , in Champions Case , p. 308.

The Plaintiff must assign a Breach to intitle himself , ( except in some Cases , vide infra , ) on a Bond of Covenants , that the Defendant should not deliver possession to any but the Lessor , or such Persons as should lawfully recover ; the Defendant pleaded he did not deliver , but to such Persons as lawfully recovered it ; the Plaintiff demurs , Judgment pro Quer. Per Twisden , on affirmative Covenants general pleading of performance is sufficient , and so on negative ; for its sufficient for the Defendant to plead an excuse , and the Plaintiff must assign a breach to entitle himself , 1 Keble 380 , 413. Nicholas and Pullen .

One Covenant was , That J. B. her Heirs , &c. should perform Covenants in a Deed Poll , whereof one was , That if I. died before the Plaintiff had satisfaction on Judgment assigned , then the Administrators de bonis non of H. B. should farther secure that Assignment ; the Defendant pleaded performance generally ; the Plaintiff replies , such a day I. died , and sets not forth any Breach , Judgment pro Defendente , 2 Keble 288 , 301. Truss● and Mading .

The Plaintiff is not bound to alledge a special Breach , when the Defendants Plea contains speciall Matter . A Condition to perform Covenants in an Indenture , one was , That I. the Defendant should permit Guy the Plaintiff from time to time to come and see if the House leased by Guy and K. his Wife were in repair ; I. pleads in Bar , that I. B. and K. his Wife were Tenants in Tail of the House , and had Issue ; that I. B. died , K. married Guy the Plaintiff , and they two make a Lease to him for 20 years , and that W. the Issue in Tail such a day entred , before which entry the Condition was not broken : Guy replies , That William came with him upon the Land to see if Reparations , &c. and traverses the entry of William , in manner and form prout , and Issue joined upon the Traverse , &c. and found pro Quer. and Judgment ; it was assigned for Error , that there was not any breach of Covenant in I. assigned , and so had shewn no cause of Action ; but per Cur , he need not in this Case , for the special Plea of the Defendant had disabled the Plaintiff , that he could not assign any breach of Covenant , but of necessity ought to answer to the special Matter alledged . It s not like the Case of Arbitrament , in Debt on Bond to perform Award , the Defendant pleads nul ●iel Award , then the Plaintiff in his Replication ought to set forth Award , and assign his Breach , because the Defendants Plea 〈◊〉 general ; but if in such Case the Defendant should plead a Release of all Demands after the Arbitrament , by which he offers a special point in Issue , there it sufficeth if the Plaintiff answer to the Release without assigning any Breach , Yelv. p. 78. Hob. cont . ● Brownl. p 89. Jeffry and Guy . 2 Keb. 46 , 74. ●arch and ●lacka● .

The Condition was , That wher● Ed. Tailor had bargained , &c. to the Plaintiff a Close , &c. and whereas the said Ed. T. hath already ●ort gaged to J. S. divers Lands in G. whereby the said Close is either mortgaged , or supposed to be mortgaged , &c. if therefore the said Close of Pasture at the day mentioned in the said Indenture of a Mortgage be redeemed and set free , &c. the Defendant pleads , the Close was not mortgaged to J. S. & sic dicit quod clausum praed. &c. fuit redempt. liberat . & exonerat . &c. the Plaintiff replies , That the said Close was mortgaged to the said J. S. and upon this Issue joined , and found pro Quer. and 't was moved in Arrest of Judgment that the Replication was not good , for he ought to have replied , quod pignoratum fuit to the said Smith , and is not redeemed , for it might be redeemed before the day : Per Cur. it s a good Replication . 1. The Defendant hath offered a particular point in Issue , that it was not mortgaged , and the Plaintiff answers it , when he saith it was mortgaged , and need not alledge that it was not redeemed ; for there shall never be intended any redemption , because the Defendant pleads it was not mortgaged , as J. S. is bound to marry the Daughter of J. D. upon Easter-day next ; in Debt on this Obligation , if J. S. pleads in Bar that the Daughter of J. D. died before Easter-day , it s a good Plea , and its a good Replication that the Daughter was living on Easter-day , without saying farther , that he had not married her , because a special Plea in Bar is always answered with a special Replication in the Point alledged . 2. Because the Mortgage is supposed to be made between a Stranger and the Defendant , to whose Acts of Redemption , &c. the Plaintiff is not privy , and cannot have conusance or notice of theire Acts ; its excellent Learning which hath made me more at large recite it , Yelv. M. 44 and 45 Eliz. R. R. fol. 24. Baily and Tailor , Cro. Eliz. p. 899. mesme Case , the difference is , such pleading after Verdict should be good , but not if demurred to ; as the Condition was , the Defendant should render account of all such Goods of A. as came to his hands , or pay his part for them . The Defendant pleads , nothing came to his hands . The Plaintiff replies , a silver Bowl came to hands ; Demurrer ; Ill Replication , for he should have said , and had not paid for it , Siderfin 340. 1 Keb. 275. Hayman and Gerrard .

Though in Obligations ( put in Suit ) for 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 Mich●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 ●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. Nichl● and Thomas .

If no time is limited , if the Obligor be once disabled , he is perpetually disabled , 21 E. 4.54 . b. Vid. Cases del Disability , 1 Rolls Abr. 447 , 448.

Conditions to perform particular Covenants . To make Assurance .

TO make such Assurance as Counsel shall advise .

A Condition to make to the Obligee or his Assigns so good a Lease as Counsel shall advise , and the Obligee appoints him to make a Lease to J. S. he must do it ; for it is not , as shall be advised by Counsel . Per Coke , if the words were , he shall make as good a Lease as Counsel shall devise , he ought to have brought a Lease drawn by the advise of Counsel , 1 Rolls Abr. 424. 1 Rols Rep. 373. Allen and Wedgwood .

To make such Assurance , &c. as the Plaintiffs Counsel shall devise ; it is not sufficient to plead , he made such Assurance , but that the Plaintiffs Counsel devised such Assurance which he had made , Crook Eliz. 393. in Hutchinson's Case .

One covenants to make such Assurance , &c. as the Plaintiffs Counsel shall advise , and he pleads performance of Covenants ; he cannot afterwards say , Consilium non dedit advisantentum , in Specot and Sheer's Case , Crook Eliz. 828.

The Defendant covenants to assure such Lands by such Assurance , as by the Counsel of the Plaintiff shall be devised ; the Breach assigned in this , the Plaintiff caused such an Assurance to be drawn and ingrossed , and put Wax to it , and required the Defendant to execute it , and he refused . The Defendant demurs ; per Cur. it is no Breach , because the Plaintiff himself devised it , Crook Eliz. p. 297. More versus Roswel .

On Covenant that before such a day he would make sufficient Estate of Lands to such value to the Plaintiff for term of his Life , as by the Plaintiffs Counsel should be advised . The Defendant pleads he made Estate in Lands of such a va● , &c. he must shew what Estate was advised , and what Land , that so there may be an Issue , 28 H. 8.1 . b.

A Condition to make such an Estate to the Plaintiff as his Counsel shall advise , and saith Co●c●lium non dedit advisamentum . It was a Qua● whether he ought not to say , concilium null● dedit advisumentum : But it is now setled , a good Plea , 11 H. 7.23 . a. 6 H. 7.4 . and need not ●ledge what persons were of his Counsel , and that they gave no advise , for the Plea is in the negative ; but if he plead , his Counsel gave to him such advice , he ought to plead what persons were of his Counsel . Then the Replication was , that J. W. was of the Plaintiffs Counsel and no more and he made such advice , &c. which advisement the Plaintiff notified to the Defendant : Issue on the Advice , 6 H. 7.4 .

The Defendant by protestation saith , that the Plaintiffs Counsel made not any devise , and pro placito , that he was not required . The Plaintiff saith , J. S. his Counsel devised a Release , and that he required the Defendant to seal it and he refused . The Defendant rejoyns he did not refuse , it is a departure , and the Issue is a Jeofall , 28 H. ● Dyer 31. b.

The Condition is to make such assurance of this Mannor of D. as the Counsel of the other shall advise , and the Counsel deviseth that he shall be bound in a certain Obligation that the other shall enjoy the Mannor peaceably . He is not bound to perform this , for this is not any assurance within the intent of the Covenant , 1 Rolls Abridg. p. 423. part 1.

But if a Man be bound to do such Acts for the assurance of the Mannor of D. as the Counsel of the other shall devise ; and the Counsel adviseth that he shall make an Obligation or Statute that the other shall enjoy this , he ought to perform this , 1 Rolls Abr. 431. per Poph.

To make such assurances of , &c. as Counsel of , &c. shall devise , and the Defendant by advice of Counsel demanded a Release with Warranty . Per Cur. this is not any assurance , but a means to recover in value , 2 Leon. p. 130. Wy● and Throgmorton .

If a Man covenant to make such assurance as the Counsel of the Covenatee shall devise of an Annuity of 30 l. and of 300 l. in Mony . If the Counsel devise he shall make an Obligation to pay the Annuity , and the 300 l. at certain days , he is not bound to perform it , the Obligation being no assurance of the Annuity , 1 Rolls Rep. 423.

If A. Covenant to make such assurance for the payment of 100 l. to R. as his Counsel shall devise , and his Counsel deviseth that A. shall make an Obligation of 1000 l. for the payment of an 100 l. he ought to perform this : Otherwise , if it had been to make such reason his assurance as the Counsel of the Covenantee shall devise , 1 Roll● Abr. p. 423.

A Conclusion to seal such assurance of Copy-hold as should be devised . The Plaintiff devised that the Defendant should seal a Letter of Attorny made to one to surrender the Copyhold for him , and also seal a Bond for quiet enjoyment . The Defendant may refuse , for he is not bound to seal the Obligation ; and after Verdict , Judgment was arrested , 1 Brownl . p. 93. Stamford and Cookes .

A. covenants with B. to make such reasonable assurance to B. in Fee of such Land , reserving to A. and his Heirs 20 s. Rent per annum , as the Counsel of B. shall advise , and after B. tenders to A. a Deed poll by which A. shall enfeoff B. of Land in Fee reserving the said Rent to A. in Fee ; this is not any such reasonable assurance to bind A. to seal it , for this is a Rent Seck ; and the Deed belongs to the Feoffee , and then A. without the Deed may not have any Remedy for the Rent , 1 Rolls Abr. 423. Guppage and Asca● . It ought to have been a Feoffment by Indenture rendring Rent , Id. ibid. Sect. 7.

If the Condition be to make such assurance in Law of certain Lands to the Obligee as by the Counsel of the Obligee upon Request shall be advised , and after J. S. was of the Counsel of the Obligee , and gives his advice to the Obligee that the Obligor shall make a certain assurance , and the Obligee gives notice to the Obligor of the said advice , and requires him to perform it , he ought to perform it ; for its more convenient that the Counsel should give the advice to the Obligee , than to the Obligor , for that the Obligor knows not whether he be his Counsel in this matter , 5 Rep. Higgenbotham's Case .

A Covenant is to make a Lease on such Covenants as the Plaintiff or his Counsel shall advise ; the Plaintiff must tender this Lease , 3 Keble 183. Twiford and Buckly .

If the Condition be to assure certain Lands to such a person which the Obligee shall name , and after he assures this to the Obligee himself , it is a good performance , though it be not alledged that the Obligee named himself , for this acceptance is a nomination of himself , 1 Rolls Abridg. p. 424. Husego and Wild.

At whose Costs .

IF the assurances are to be made at the costs of him to whom they ought to be made , he may require the assurance to be made by parcels . Aliter , when the Covenantor is to be at the charges ; yet there if the party require an assurance of parcel , the Covenantor must do it ; but then he is discharged from making any assurance of that which remains , Crook Eliz. p. 681. Washington's Case .

A Condition to make a sufficient Lease to the Obligee before such a day , the same to be made at the costs of the Obligee : It is a good Plea , that the Plaintiff did not tender the Costs to him , and if then that he was ready , More n. 72.

That the Covenantor at the Costs of the Covenantee would assure such Lands before such a day ; the Covenantor is to make the assurance what he pleaseth , and ought to give notice what assurance he will make , and his readiness , that the other may know what costs he is to tender , Crook Eliz. f. 517. Halling and Connard .

Who to do the first Act , as Notice , Request , Tender , Vid. infra .

Deseasance of a Statute , that if E. M. and his Wife before such a day should make such good assurance of an House to W. with such Covenants as he should accept and signifie under his hand to be reasonable , or should pay to him such a day 350 l. then the Statute should be void . E. M. in Audita Querela furmiseth that he and his Wife were always ready to have made the assurance , and that the Conisee had not signified what assurance he would accept , nor required any , and yet he had sued Execution : Demurrer ; adjudged for the Defendant . For he is not bound to devise any assurance , but it is at his Election to accept the Estate tendred , or the Mony ; and there cannot be an acceptance but where there is a tender on the other part . Therefore the Conisor ought to have devised the Estate , and procured the Conisee to accept thereof , otherwise he ought to pay the Mony , Crook Eliz. p. 718. Mills and Wood.

A Covenant to make a Lease on such Covenants as the Plaintiff or his Counsel shall advise ; the Plaintiff must tender the Lease , 3 Keble 183. Twiford and Buckly .

The Covenant is to make a Lease for three Lives before Michaelmas ; the Defendant pleads , that none of the Lives were named by the Plaintiff . The Plaintiff demurs : Judgment was for the Defendant ; the Plaintiff must name them , 3 Keble 183 , 203. Twiford and Buckly .

The Defendant pleads the Condition was , if the Defendant make an Estate to the Plaintiff of certain Land before such a day in Fee by Feoffment , Fine or otherwise , as his Counsel learned in the Law shall advise . The Plea was , Concilium non dedit advisamentum . The Defendant is not bound to request his Counsel to make advice , and the advisement doth not come on the part of the Plaintiff , but on the part of the Defendant . This is not like the Case of Obligors being bound to pay to the Obligee 10 l. or enfeoff him of the Mannor of S. he ought to make tender of the Monies , and in the other Case he ough● to tender that he will make a Feoffment , because all comes from the Defendant , 6 H. 7.4 . as in this Case . The Plaintiff replies , J. S. was of his Counsel and no more , and he made such advice , which advisement the Plaintiff notified to the Defendant , so it is good , ibid.

If I am bound to make you such an assurance as J. S. shall devise , I am bound at my peril to procure notice ; but if I am bounden to make such assurance , as your Counsel shall advise , there notice ought to be given to me , 1 Leon. p. 105. Case 141. in Atkinsons Case .

A Condition to perform Covenants , Breach assigned , whereas the Covenantor covenanted with the Covenantee , that he at the costs of the Covenantee would assure such Lands unto him before such a day , that the day was past , and no assurance tendred by the Covenantor , not costs by the Covenantee . Per Cur. the Covenantor is to make the assurance , and to give notice what assurance he will make , and his readiness that the other may know what Costs to tender , Crook Eliz. 517. Hallings and Connard . The Covenantor ought to do the first act ( viz. ) notifie the Covenantee what manner of Estate he will make , so that the Covenantee may know what Sum of Mony to tender ; and it is all one whether the Covenant be general or particular , as to make a Feoffment , &c. and so if nothing were done before the day , the Obligation is forfeited , 5 Rep. mesme Case , 22. b. The Obligor having election what manner of assurance he will make , ought first to give notice to the Obligee , that he will make such assurance , More n. 595. mesme Case .

W. covenants for himself , his Heirs , Executors , Administrators and Assigns within seven years upon Request to convey to the Plaintiff a Copyhold Estate for life ; W. dies , a Request must be made to his Executors ; though W. was seised in Fee , the Executors are bound to see it done , 2 Bulstr. 158. Thursdens Case .

A Condition to perform Articles , one was , the Defendant covenanted before such a Feast to make to the Plaintiff and his Wife a Demise of , &c. Hebendum immediately after the death of E. F. for 30 years ; if E. W. to this assent then Habend . after the death of E. F. for 21 years . The Defendant pleads , E. W. denied his assent , and farther that the Plaintiff did not require the Defendant to make him the Lease for 21 years . Demurrer , and Judgment pro Quer. For the Plaintiff need not make Request , but the Defendant at his peril ought to have made the Lease for 21 years before the Feast , 1 Anders . n. 124. f. 49. Henry Cage versus Tho. Furtho .

The Condition is , if the Obligor make all reasonable Acts , &c. which shall be for assurance , &c. to be required by the Obligee before such a day , &c. a general Request is sufficient . Aliter , if the assurance were to be advised by the Obligee or his Counsel , there he must shew he had required such a particular assurance , as Fine , &c. and as to this the Case was thus ; The Condition was , if the Defendant before M. do make , acknowledg and suffer , &c. all and every such reasonable Acts and things whatsoever they be , for the good , and lawful assuring and sure making of the Mannor of D. to J. S. and his Heirs , that then , &c. The Defendant pleads , that before M. the Plaintiff rationabiliter non requisivit le def. ad faciend. &c. aliqua rationabilia actum & acta , quae forent pro bona & legitima assurantia del mannor de D. &c. The Plaintiff replies , that such a day before M. he requested the Defendant quod ipse conveiret & assuraret manerium de D. al J. S. &c. secundum tenorem conditionis . And Issue found pro Quer. Moved in arrest of Judgment , that there was no sufficient Breach , for that the Plaintiff ought to have required an assurance in certain ( viz. ) Fine or Feoffment ; but per Cur. the Condition is broken ; for by the Condition the Defendant is to do all and every act whatsoever , &c. so that if the Plaintiff request a Fine , Recovery , Feoffment , Bargain and Sale , the Defendant ought to do all ; but not to make any Obligation or Recognisance for the enjoying the Mannor , for that is but collateral Security and not any Assurance . Then when the Plaintiff requests the Defendant to convey the Mannor in the generality ; the Defendant ought at his peril to do this by some kind of Assurance , and if upon this Request the Defendant makes a Feoffment of the Mannor , yet if after this the Plaintiff request a Fine , he ought to acknowledge a Fine also , and so upon every several Request , Yelv. p. 44. 1 Brownl . p. 84. More n. 889. Pudsey and Newsam .

The Condition was to make an Estate of Inheritance to the Obligee at such a day and place . The Defendant pleads he was ready at the day and place to make it , &c. The Plaintiff demurs : Per Cur. ill Plea , he ought to have shewed that he gave notice what Estate of Inheritance he would make him , Stiles p. 61. Allen p. 24. Brook and Brook , 5 Rep. 22.

If a Man be bound to make a Conveyance of certain Lands ; if a Warranty or Covenant be put into the Deed , he is not bound to seal it , 1 Rolls Abr. p. 424. sect. 13.

The Condition is to make such Assurance to the Obligee , as the Obligee shall devise , and after the Obligee deviseth an Indenture , and tenders this to him , and he requires time to shew it to his Counsel , he must seal 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 enfeof● 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. La● 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 , Stile● 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 Bargaino● 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 that he cannot do sans Licence , Moor n. 294. Crocock and White .

An Action is brought against the Heir of Edmund A. the Condition , Whereas the said Ed. A. such a day hath granted and given to the Plaintiff the Presentation to the Church of D. if therefore the said Ed. A. from time to time shall make good the said Grant from all Incumbrances made or to be made by him and his Heirs , that then , &c. the Grantor died , the Church became void , the Heir of the Grantor presented , this tortious Presentation is no Breach , but this extends only to lawful disturbance by the Heir ; for it appears by the pleading the Heir had no right to present , his Father having granted that before . Per Hobert the words shall be construed as if it had been said that he shall enjoy the same from any Act or Acts made by him or his Heirs ; and in this Case there ought to be a lawful Eviction to make a breach of the Condition ; but otherwise , if the Condition had been that he shall peaceably enjoy from any Act or Acts made by him or his Heirs , for in this Case a tortious disturbance would have been a Breach of the Condition , Winch p. 25. Dr. Hunt versus Allen.

The Condition was , That he should enjoy such Lands sans Eviction ; the Breach was assigned in the Recovery by Verdict in Ejectione Firmae , upon a Lease made by one Essex , and doth not shew what Title Essex had to make the Lease , but avers that Essex had good Title , and it might be he had Title derived from the Plaintiff himself after the Obligation made , and therefore he ought to shew that he had good and eigne Title before the Lease made and in the Exchequer-Chamber the Replication held ill , Cro. Jac. p. 315. Kirby versus Hansaker , 2 Sanders , Hele and Wotton , though this was after a Verdict , 2 Sanders 177 , 178. Id.

The Condition was , If the Obligee peaceably enjoy an Acre of Copyhold Land according to the Custom of the Mannor ; the Defendant pleads by Custom of the Mannor the Obligee ought to pay to the Lord a Rent , and for non-payment the Lord to re-enter , and that the Obligee did not pay it , and the Lord entred , and demanded , Judgment si Actio , bon Plea , Benl . p. 32.

The Condition was to enjoy peaceably against M. Breach assigned that M. had entred and cut down five Elms ; upon Evidence it was A. Servant of M. by commandment and in the presence of his Master , had entred and cut , and good , 1 Leon. 157. Seaman and Browning .

Debt on Obligation for performance of Covenants ; Breach assigned was , the Defendant Lessor covenanted , that it should be lawful for the Plaintiff , being Lessee , quietly to enjoy the Land , and that the Lessor himself ousted him ; this illegal ouster was a Breach of the Covenant , Cro. El. 543. Corus Case .

The Condition is , If such Lands be discharged of all Incumbrances made by him , except the Estate and Title of Jointure of his Wife Elizabeth , that then the Breach is assigned , that the Defendant before the Obligation made , had surrendred these Lands to the use of Elizabeth his Wife ; it s no Breach , vide Cro. El. p. 761. Woodward vers . Dannock .

In Debt on Bond against Baron and Feme being made in her Widowhood , with Condition that she , her Heirs or Assigns keep Contracts and Covenants made between former Husband and his Lessee , the Plaintiff ; and there was an Agreement that the Plaintiff should enjoy a Warren of the Demise of the former Husband , and that he entred till put out by the Defendant ; Issue on the Agreement , found pro Quer. Jones moved , there was no Estate alledged in the former Husband in jure Uxoris , whereby though the second Husband be assigned in Law , yet he enters of his own wrong , and not as claiming under her ; but per Windham , it s not requisite that the Husband be Assignee of the Estate , but her Assignee of Contract , 1 Keble 348 , 512. Hall versus Creswel and his Wife ; Judgment pro Quer.

A Covenant to save harmless from lawful Eviction ; the Defendant pleads performance ; the Plaintiff replies , That J. S. took out a Writ of Hab. fac . poss. in B. I. debito modo exeunt ' and by vertue thereof entred and expelled him ; per Cur. debito modo is not sufficient without shewing particulars ; he ought at least to recite the Term of the Judgment , but not the Title of him that evicted , 1 Keble 379. Nicholas and Pull●n .

The Condition was , That the Obligor should not enter nor claim a certain House ; the Defendant said , he did not enter nor claim ; the Plaintiff replies , he claimed ; no Plea ; he should say he came to the Land ; and claimed the Land , and entred into the Land , and nothing shall be traversed but the Claim , 4 H. 7.13 . not the Entry .

A Condition to discharge a Mesuage of all Incumbrances ; there one may plead generally that he did discharge it of all Incumbrances ; but if it be to discharge it of such a Lease , he must shew how , 1 Brownl. 63.

The Condition was , That he shall suffer his Lessee for years to enjoy , &c. and that without the trouble of him or any other Person ; a Stranger enters per eigne Title , the Condition is not broken , for this word suffer is a passive , and all the rest is to be referred to this ; but if any procurement or occasion of disturbance be by the Lessor , his Executors or Assigns , then he forfeits the Obligation , 2 Ed. 4.2 . b. 1 Rolls Abr. 425. Q. 1.

A Man is bound to warrant Lands by Obligation , in Action de Det port , pacifice gavisus est is no Plea , for it s but an Argument that he had warranted , and it s but a fallible Argument , for the Party may enjoy peaceably without having Warranty , Dyer 42. b. 43. a. 2 Co. fol. 3.

A Condition peaceably to enjoy from the 1st of Febr. usque Michaelmas-day Tithes , paying half yearly during the Term , and on default of payment , the Defendant ( Lessor ) to be free from all Obligation to the Plaintiff ; he replies , he assigned a Breach in non-payment of Rent at Michaelmas , which is after the Term ended , and so the Defendant demurs ; Also the substance of the Suit is quiet Enjoyment , and therefore ought not to be taken by protestation ; sed per Cur. enjoyment need not be answered where it s defeasanced by payment of the Rent , yet Judgment pro Def. 3 Keb. 594. Biggin and Bridge .

A Condition that he shall suffer his Lessee for years to enjoy his Lands during the Term , and that without trouble of him or any other Person ; a Stranger enters per eigne Title ; per Cur. the Condition is not broken , for that this word suffer is a passive , and all the residue is to be referred to this ; but if any procurement or occasion of disturbance by the Lessor , his Executors or Assigns , then he hath forfeited the Obligation ; a Man is bound to permit Land to descend to his Son , he need not aver that this had descended to him , 1 Rolls Abr. p. 425. Q. 1.

A Condition to perform Covenants in a Lease , one was , That he should enjoy such Lands let to him quietly , without interruption ; and the Plaintiff in his Replication sheweth in facto , that the Defendant the 20th of March , 30 Eliz. had disturbed him , and in that assigned the Breach ; the Defendant by Rejoynder sheweth , that in the Indenture there was a Proviso , that if he paid 10 l. the 31 of March , 30 Eliz. that the Indenture and all therein contained should be void , and alledged he paid 10 l. at the day ( but this was after the disturbance supposed ) and the Plaintiff demurs : Judgment pro Quer. for by the Covenant broken before the Condition performed , the Obligation was forfeited ; and it s not material that the Covenants became void before the Action brought ; but by Wray , if the Proviso had been , that upon the payment of the 10 l. as well the Obligation as the Indenture should be void , ●l● . for then the Bond was void before the Action brought ; so where a Parson made a Lease for years , in which were divers Covenants , and after he became non resident , by which the Indenture became void , yet he may maintain an Action of Covenant for a Covenant broken before his non Residency , Cro. Eliz. p. 244. Hill and Pilkington , Dyer 57. Bylones Case .

The Condition was , If the Obligee , his Heirs and Assigns shall and may lawfully hold and enjoy a Mesuage , &c. without the let , &c. of the Obligor or his Heirs , or of every other Person , discharged , or upon reasonable request saved harmless by the said Obligor from all former Gifts , &c. the Defendant pleads no request was made to save him harmless ; Judgment pro Quer. because the Defendant hath not answered to all the the Conditions , ( viz. ) to enjoying of the Land ; and there were two Conditions , ( viz. ) the enjoying and saving harmless , Moor n. 756. Creswell and Holmes .

Debt to perform Covenants in a Lease , one was for quiet enjoyment against all claiming Title ; the Plaintiff assigns for Breach , that a Stranger entred , but saith not habens titulum . Hales , habens titulum at that time would have done ; Dyers Case is , another entred claiming an Interest , but that is not enough , for he may claim under the Lessee himself : If the Covenant had been to save him harmless against all lawful and unlawful Titles , yet it must appear that he that entred , did not claim under the Lessee himself , Mod. Rep. 101. 3 Keble 246. Norman and Foster , Hob. 34. Tisdale and Essex , Moor 861.

The Condition was , if neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of such Lands by indirect means , but by due course of Law . 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 Plea good , 2 Leon. 197. Dighton and Clark .

K. was seized , and leased for years to J. H. Husband of Isabel ; and J. H. being so possessed , by his Will devised , that the said Isabel should have the use and occupation of the said Lands for all the years of the said Term as she should live , and remain sole ; and if she died or married , that then his Son should have the residue of the said Term not expired : J. H. died , Isabel entred , to whom the said Kidwilly conveyed by Feoffment the said Lands in Fee , and covenanted that the said Lands from thence should be clearly exonerated de omnibus prioribus barganiis titulis juribus & omnibus aliis oneribus quibuscunque Isabel married and the Son entred : Per Cur. this possibility which was in the Son at the time of the Feoffment , though it was not actual , yet the Land was not discharged of all former Rights , Titles and Charges ; by the Marriage of the said Isabel , it s become an actual Charge , and the Term is not extinct by the acceptance of the Feoffment , 1 Leon. p. 92. n. 120. Hamington and Rydear . I am bound in a Statute , and afterwards sell my Land with Covenant prout supra , here the Land is not charged ; but if the Condition in the Defeasance be broken , so as the Conusee extends , now the Covenant is broken , 1 Leon. p. 93. ibid.

On Covenant to enjoy absque legali molestatione of the Defendant ; the Defendant pleads performance ; the Plaintiff replies , by entry of the Defendant Lessor , which is intended tortious , and and so no breach , for which cause the Defendant demurs : Per Moreton , Entry and lawful Entry are all one as to the Lessor ; and Rainsford conceived a general Entry no Breach , the general Covenant being restrained by special Covenant against any lawful let , 2 Keb. 717. Lee and Dalfton .

Debt on Bond to perform Covenants , one of which was , That the Plaintiff should not be interrupted in his possession of certain Lands by any Person that had lawful Title , and particularly that he should not be interrupted by one Thomas Antony by vertue of any such Title ; the Defendant pleads performance ; the Plaintiff replies 1 No. 20 Car. The Defendant made the Lease to the Plaintiff , and 3 No. he entred , and that 17 Aug. 20 Car. before the Defendant made a Lease to Antony for years yet to come , who 20 Aug. 20 Car. entred ; the Defendant pleads the Lease to Antony was on Condition of re-entry for non-payment of Rent , and that before the Lease made to the Plaintiff the Rent was behind , & legit● demandat , secundum formam Indenturae , and he re-entred , and made the Lease to the Plaintiff ; upon general Demurrer per Cur. the Demand was not sufficiently alledged , for he ought to set forth when and where it was made , that the Court might know if it were legal ; but for a ●w in the Plaintiffs Replication , because he alledged his Entry after the Lease made to Antony , so that it appears not he was interrupted by him ; the Opinion of the Court was against the Plaintiff , Allen p , 19. Colman and Painter .

Debt on Bond conditioned , that if the Obligee , his Executors and Assigns from the time of the Obligation may enjoy such Land , &c. The Defendant pleads , that post obligationem until the day of the Bill the Plaintiff had enjoyed that Land ; Plaintiff demurs . 1. Because the Defendant doth not say a die confectionis scripti obligatorii & semper post ; non allocatur , a Bar is good to common intent , and it shall be taken he always enjoyed it , unless the contrary be shewn , which must come on the Plaintiffs part . 2. Because he does not plead the Plaintiff and his Assigns enjoyed it ; non allocatur , for it shall not be intended the Plaintiff made an Assignment , unless he himself had shewn it ; Judgment pro Def. but it was moved to have the Plaintiff discontinue his Suit , for otherwise he should be barred of his Debt , whereas he had good cause of Action , and the Court adjourned it till next Term , that in the interim he might discontinue , Cro. Car. 195. Harlow and Wright .

The Plaintiff by Deed indented , leased to the Defendant a Farm called D. except one Close by Name ; Lessee Defendant was bound in a Bond to perform all the Covenants and Agreements in the said Indenture , and pleaded he had performed all the Covenants ; the Plaintiff assigns for breach , that the Defendant entred into the Close excepted ; the Defendant demurs : Per Cur. the Obligation is not forfeited by this disturbance ; this Exception is not such an Agreement as is within the intent of the Condition , it s an Agreement , that the Land excepted shall not pass by the Demise , but no Agreement that he shall occupy ; but sometimes an Exception is an Agreement that shall charge the Lessee , but this when he agrees on his part , that the Lessor shall have a thing dehors , which he had not before ; as except a Way or Common , or any other Profit , a Prender , that is Agreement of the Lessee that he shall have the Profit , and if he bound to perform all Covenants and Agreements , if he disturb him in this , he shall forfeit the Obligation , Cro. Eliz. p. 657. Lady Russel versus Gullwell , Moor n. 713. id . Case .

In a Lease for years , the Defendant Covenants that the Plaintiff should enjoy it during the Term ; on Demurrer the Case was , Tenant pur vie levies a Fine to him in Reversion , come ceo , &c. the uses were to the Conusee and his Heirs , on condition to pay to the Tenant pur vic 4 l. per ann . during his life , and upon default that it should be to the use of the Conusor for his life ; the Conusee made a Feoffment to the Defendant , who leased to the Plaintiff ; the 4 l. was not paid nor demanded ; the Tenant pur vie enters on the Plaintiff ; this is a breach of the Condition without any demand of the Rent , for its a Sum in gross , and not issuing out of the Land ; the Covenant is , that the Lessee shall absolutely enjoy it ; and this Condition is properly to be performed by him who hath the Freehold , and it was held that this Feoffment had not destroyed the future use , which is to arise for non-performance of the Condition , Cro. El. 688. Smith and Warren .

Two make a Lease for years by Indenture , and covenants that the Lessee should not be disturbed , nor any incumbrance made by them ; one of the Lessors makes a Lease to a Stranger who disturbs , on Bond to perform Covenants , it s a breach of the Condition , for ( them ) shall not be taken jointly , Lach. p. 161. Merritons Case .

Condition of the Obligation was , That the Plaintiff should have , hold and enjoy Lands acquitted from all Charges and Incumbrances , and for breach the Plaintiff shew there was a Rent-charge granted by the Predecessor , under whom the Defendant claimed , which is yet undischarged ; the Defendant demurred , because the acquittal goes to the having and holding the Land , and it s not shewed that the Plaintiff was ever in possession , nor that he was charged or endamaged , to which Twisden and Keeling agreed ; but by Windham the Defendant ought to shew how he had discharged and acquitted from the very Rent , and not to let it perpetually hang over him ; but by all the Court , if the Acquittal refer to the Land it self , or to the Person , the Defendant must shew how , 1 Keb. fol. 927. King and Standish .

A Covenant , that the Indenture of a Lease at time of the Assignment is a good , true and indefeasible Lease , and that the Plaintiff shall enjoy , &c. without the let or interruption of the Defendant , or of any claiming by , from or under him , and shews for breach , that before he that made the Lease had any thing , one J. S. was seized in Fee , and that he which made the Lease entred upon him , and disseised , and leased prout , and that J. S. re-entred upon him , upon which Replication the Defendant demurs , & per Cur. the word indefeasible Lease shall be construed as a distinct Sentence from the last words , that he shall enjoy it without the interruption of the Defendant , Siderfin p. 328. Gainsford and Griffith , 1 Sanders p. 51.

Johnson and Vavisor Joyntenants of a Mill by Lease for years . Vavisor assigns all his Interest in the Mill to another without Johnsons assent or privity , and dies . Johnson after recited this Indenture by Lease , and that all came to him by Survivorship , grants the said Mill and all his Estate , Title and Interest to Procter , and covenants that he shall quietly enjoy it notwithstanding any Act done by him , and Bond of Covenants , Act. de Det sur Bond. Johnson pleads , that the Plaintiff had enjoyed this notwithstanding any Act done by him . Procter replied , that Vavisor Joyntenant with Johnson assigned his Estate to J. D. who entred and expelled him . The Defendant demurs ; adjudged against the Defendant , for the Grant was never good , for he had no power to grant one Moiety , and yet he had expresly granted the Mill to Procter . And the Condition of the Obligation being to perform all Grants , the Grant being defective at the first as to a Moiety which is the Substance of the Agreement of all the Parties , this is not qualified by the Covenant ensuing , and it is not like to Nokes Cass , 4 Rep. for there the Grant was good for the whole , and becomes ill by Eviction afterwards , and therefore the Covenant ensuing qualified the general Covenant . Yelv. p. 175. Johnson and Procter , Lit. 206. 1 Bulstr. 3 , 4.

A Covenant that the Lessee shall enjoy against the Lessor and all claiming under him . The Defendant exhibited a Bill whereby the Lessor appeared to be in Trust , and adjudged this was , no Breach , Selby and Chute cited 2 Keb. 288. 1 Brownl . p. 23.

The Covenant was , if the Defendant sued or troubled , charged or vexed the Plaintiff : Per Cur. a Suit in Chancery is within the Condition , 2 Keb. 288. Ashton and Martin .

A Condition to surrender a Copyhold , and that the Plaintiff shall enjoy this without the let of any claiming under the Defendant and of one Lancelot Simons . The Defendant pleaded Surrender , and that the Plaintiff had quietly enjoyed this . The Plaintiff replies that one Jane Simons claiming under Lanceolet ousts him . Demurrer , and Judgment pro Quer. The Case was ; this Copyhold was granted to Patience Hussy for Life , the Remainder to Lanceolet S. in Fee ; and that after and before the Obligation Lancelot surrenders his Remainder to the use of Patience for Life , and after to the use of Lancelot and Jane for their Lives , and after to Lancelot's Heirs : Lancelot and Patience dye , and after the Obligation Jane enters . The cause of Demurrer was that Jane took nothing by the Surrender , for the Surrender to P. H. pur vie was void , she having an Estate pur vie before , and consequently the Remainders by notice upon this void Estate are void also . Dut per Cur. the Estate limited to Jane S. shall be by way of present Estate and mediate Settlement , and not by way of Remainder , 1 Sanders p. 150. Wade and Balch , 2 Keb. 341. Id. Case , Siderfin p. 360.

The Condition was , whereas J. F. claimed to have Lease for years of the M. of D. made to him by W. If the said Defendant keep without damage the Plaintiff from all Claim and Interest to be challenged by J. F. de tempore in tempus during the years , &c. The Defendant pleaded after making the Obligation until the Action brought , The Plaintiff was not damnified ratione dimissionis . Plea good , for if he were not damnified ratione dimissionis , then he was not damnified by reason of any Claim or Interest , 3 Leon. 118. Brainthwait's Case .

To enjoy absque legali impedimento of J. S. the Breach is , that J. S. habens jus entred , it is a sufficient Breach , 2 Keble 878. Procter and Newton .

On Covenant to acknowledg a Fine .

A Covenant that the Vendor should make farther Assurance at the Costs and Charges of the Purchasor . It was alledged for Breach that a Note of a Fine was devised and ingrossed in Parchment , and delivered to the Vendee to acknowledg the Fine at the Assizes , which he refused to do ; and the Plaintiffs Breach was demurred upon , because he did not offer Costs to the Vendee , and per Cur. its ill , 1 Brownl . Rep. p. 70. Preston and Dawson .

On a Covenant for farther Assurance ; the Breach is , Advice and Request of a Fine by such a Counsel , and shews Dedimus Potestatem to A. and to revive the Conusance , and the Obligor being requested , refuseth ; though he shew not any Writ of Covenant was depending , or that the Writ was delivered to the Commissioners , and though the Fine was with Warranty , yet because the Covenant is not to levy a Fine , but to do such Acts as shall be required . Judgment pro Quer. Latch p. 186. Tindal's Case .

If one do covenant generally to levy a Fine of Lands , he is not bound thereby to go before Commissioners by Dedimus , Stiles Pract. Reg. 75.

I am obliged that J. S. who is a Stranger shall levy a Fine to the Obligee , the Obligee is bound to sue out a Writ of Covenant : Aliter , if I am obliged to you that J. S. shall levy a Fine to J. N. Winch p. 30. Hill and Waldron .

The Condition was , the Obligor shall levy a Fine to the Obligee , the Obligee ought to do the first Act ( viz. ) to sue a Writ of Covenant , 5 Rep. Palmer's Case .

The Condition was , J. S. shall levy a Fine to the Obligee before such a day . The Defendant pleads , the Obligee had not sued forth a Writ of Covenant . The Plaintiff replies , that before the Obligation made J. S. had made a Feoffment to J. D. of the Land , and the Feoffee was in possession at that time . Here the Obligee need not sue a Writ of Covenant , for by the Feoffment J. S. had disabled himself at the time of the Obligation , Sed Quaere , Winch. p. 30. Eill and Waldron .

A Condition to levy a Fine at the Costs of the Obligor , &c. The Defendant pleads , no Fine was levied by , &c. according to the Condition . The Plaintiff demurs , because it is not averred the Defendant brought any Writ of Covenant . Sed non allocatur . Per Cur. the Law is now changed , and the Fine levied before any Writ entred , and therefore must be done by the ( Plaintiff ) without any Writ , 1 Keb. 816. Culpepper versus Austin .

A Condition , that Baron and Feme being Lessees for Life should levy a Fine to a Stranger at the Costs of the Stranger ; and also that they should levy a Fine of other Lands to a Stranger at their Charge . The Obligor saith , the Baron and Feme did offer to levy the Fine if the Stranger would bear the Charges . The Plaintiff demurs , and pro Quer. because the levying the second Fine had not reference to the other , for ( and also ) make them two distinct Sentences , 1 Brownl . 94. Hollingworth and Huntly .

A Condition that he and his Wife would levy a Fine upon reasonable Request of the Obligee ; he made the Request the Wife being very sick , so as she could not travel : Resolved , her Sickness saved the Obligation from the Forfeiture , More n. 256.

A Condition that such a Woman should make such farther reasonable assurance to J. D. as J. D. should devise : J. D. devised a Fine and required her to come before the Judge of Assize to acknowledg ; she came , and the Judg refused her as non compos mentis : Per Cur. the Condition was not broken , because it is to make a reasonable assurance : Aliter , if the words had been special to acknowledge a Fine , 1 Leon. p. 304. Pet and Cally.

If a Man be bound to another to make such assurance of Lands as the Obligee shall devise , it is not sufficient for him to devise a Fine , and to take out a Dedimus , &c. upon it , and require his Conisance in that , for this is but a special way of taking the Conisance . But if there were a Proviso that he should not go above five miles from his House , then if his House be above five miles from Westminster he is bound to make his Conisance on the Dedimus , this hath been the difference , Allen p. 69.

One covenants for farther assurance to levy a Fine of all his Lands in D. which was four Houses , and tenders a Fine . The Defendant pleads at the time of the Covenant he was only seised of two Houses , and that the other two descended to him afterwards , and good . A Covenant to levy a Fine of two Acres , and the Fine is of four Acres by the name of two Acres comprehended in the Indenture , it is not good , 1 Rolls Rep. 103 , 117. Wilson and Welsh , 2 Bulstr . p. 317. 1 Rolls Abr. 425.

A Covenant to make farther Assurance and to do any Act or Acts , &c. and shews he demanded of him , and tendred a Note of a Fine , comprehending that he would levy a Fine of three Messuages , &c. and that he required him to acknowledg it before a Judge of Assize . The Defendant pleads in the Note were more comprised than he intended to assure , it is no Plea , Cro. Jac. 251. Bonlay and Curtes . If one be bound to levy a Fine to another , he is not bound to sue forth the Writ of Covenant , but he who is to have advantage of the Fine is to do it ; and in the Case aforesaid , he ought to levy a Fine upon this Note , notwithstanding there was no Writ of Covenant then hanging ; and in the said Case though the Note contained more Acres than the two Yard-Lands , this is good , 1 Bulstr . 90. Id. Case .

For performance of Covenants ; one was to marry S. the Daughter , another , that Sir E. S. and his Wife should levy a Fine of such Lands to the Defendant and to the Plaintiffs Daughter S. and to the Heirs of their Bodies . 3. That the Inheritance of the Premises should remain in the said Sir E S. or himself until the Fine levied . 4. Whereas he had granted a Lease for years to S. the Plaintiffs Daughter , that he bad not made any former Grant , nor would afterwards make any Grant thereof without the Plaintiffs assent . The Defendant quoad the last Covenant in the negative pleads , that he had not made any former Grant of the Lease , nor had made any Grant after the Obligation without the Plaintiffs assent . Et quoad alias omnes Conventiones , that he had performed them . The Plaintiff demurs . 1. Because the Covenant to levy a Fine , &c. is an Act to be performed by a Stranger , and it is an Act to be performed on Record , in both which Cases he ought to plead and shew how he performed it ; and it is not sufficient to plead general performance , for Acts of Record ought to be shewn specially , and the Answer to them is nul tiel record , and no other Issue can be taken . 2. Because the Covenant being in the disjunctive , he ought to shew specially which of them , and not generally . 3. He pleads he did not grant without the Plaintiffs assent , which is a negative pregnant , and so not good , and all allowed per Cur. and against the Plaintiff , Crook Jac. 559. Lee and Luthiel .

On Covenant to pay Rent .

ON Condition performed pleaded , the Plaintiff assigns the Breach for Non-payment of Rent and pleads in this manner ; that in December he demised to the Defendant one Wine-Cellar for one year , and if the Defendant would hold the Wine-Cellar for three years paying 40 l. yearly during the said term , and alledges Non-payment of the Rent for one Quarter of the first Year : Per Cur. the Reservation had reference as well to the first year as to the two years following , 1 Brownl . 61. Young and Melton .

Debt on Bond to perform all Covenants , Payments and Agreements contained in a pair of Indentures . The Defendant pleads the Indenture and performance . The Plaintiff assigns the Breach that the Defendant had not paid half a years Rent . The Defendant replies , the Plaintiff had entred into part of the Premises the day before the day of Payment , and so at Issue . Exception was taken , because the Plaintiff had alledged no demand to be made , and the Court held , that was implyed by the Issue , and that it was not necessary in this Case , the Issue arising on a collateral point , which admitted the Rent not paid , 1 Brownl . p. 76. Baker and Pain , Hob. p. 8. Crook Eliz. p. 332. Dr. Aidir versus Wood.

Debt on an Obligation to perform Covenants of a Lease : The Defendant pleaded he had performed . The Plaintiff assigns a Breach , and the Defendant demurs . Upon Demurrer the Case was ; A Lease was made for one year , the Lessee covenants for him and his Assigns to pay the Rent so long as he and they shall have the possession of the thing let . The Lessee assigns over his Term , the Term expires , and for Rent behind by the Assignee after the Expiration of the Term , the Lessor brings the Action : Per Cur. though here be not an Assignee strictly according to the Rules of Law , yet he shall be accounted such an Assignee as is to perform the Covenants made between the Parties , Stiles p. 407. Bromfield and Sir John Williamson .

Debt lies for a Rent reserved on a Lease for years without demand , and if the Lessee be bound to pay the Rent at the day , he ought to tender it at the day before demand ; otherwise it is where the Lessee is bound to perform Covenants , 1 Rolls Rep. 216. Moses Den's Case .

If a Man be bound to pay Rent , which is reserved upon a Lease made to him , he ought to pay it at his peril ; but if it be to pay it according to the Lease , there he said it is not payable but upon the Bond ; and if the Land be evicted in the interim before the day of Payment , the Obligor shall help himself by pleading it upon such an Obligation . But if the Condition is to perform Articles . The Defendant cannot say there are no such Articles . So bound to pay 10 l. per annum Rent reserved upon a Lease of Lands in D. the Defendant shall not plead , the Plaintiff had not any Estate in the Lands , Quaere de hoc , Popham 114. Stroud and Willis .

The Condition was , if the Obligor shall pay the Rent of , &c. according to the intent of certain Articles , &c. that then , &c. The Defendant pleads , the Articles did contain that the Obligor demisit , &c. to the Defendant omnia talia domus , &c. in Y. in quibus the Obligee had an Estate pur vie per Copy , habend. pur 21 a●s rendant rent . Per Cur. no Rent is to be paid , for the Lease did never begin : But per Popham , the Obligor is to pay the Rent , though nothing be demised to him , for by the Bond he hath made it a Sum in gross , Fenner contra , More n. 521. Stroud and Willis .

A Condition to perform Covenants in a Lease . The Lessee doth not pay the Rent at the day , and the Plaintiff without making any Request , sues the Bond ; upon this matter pleaded in Bar , the Plaintiff replied , that he was not demanded . Demurrer : If the Bond be for Rent precisely , there the Lessee ought to seek the Lessor , and tender on the Land will not excuse him ; but an Obligation to perform Covenants doth not alter the nature of the Rent , 2 Brownl . Rep. 176. Manly and Jennings , Quaere in Hobart p. 8. Baker and Pain .

Debt on Bond , the Condition to perform Covenants . Performance pleaded . Non-payment of Rent assigned in the Replication . The Defendant rejoyns , the Plaintiff entred before the Rent-day : Per Cur. it is a departure , 1 Keb. 115 , 178 , 185. Granger versus Lemborough . This point in Hobart p. 8. Baker and Pain 's Case , was not stirred there .

The Condition was to pay quarterly an Annuity so long as the Defendant continues the occupation of the Land . Defendant pleads payment till the 24th of June before which day the Plaintiff entred and brought Ejectment in Trin. and had Judgment in Michalmas Term. The Plaintiff demurred , because he saith not expulit or amovit ; nor that the Plaintiff continued in possession , as it ought to be , being pleaded by way of Suspension ; but by way of Eviction it were well enough , which the Court agreed in case it were payable as a Rent . But per Cur. the Entry shall be intended continuing , and there shall be no apportionment on a Bond as it might upon a Lease , 3 Keb. 453 , 515. Arnold and Foot .

The Plaintiff assigns a Breach for Non-payment of Rent , but shews no demand at the day . The Defendant demurs , and adjudged for the Plaintiff . For when the Defendant pleads performance of all the Payments , Covenants and Agreements , it shall be intended he had really performed them , and so had paid all the Rents ; and when the Plaintiff replies he had not paid such a Rerit , he need not alledge a demand ; for the Defendant may not say it was not demanded , for that would be a departure ; yet the Obligation being general for performance of Covenants , doth not alter the nature of the Rent , but that it ought to be demanded , Crook Car. 76. Chapman and Chapman .

But because the Defendant pleaded generally quod perimplevit omnes conventiones , &c. which implies a Payment of the Rent , and the Plaintiff assigns for Breach that it was in arrear such a day . The Defendant demurs , and so confesseth it was not paid . The Plea was ill , though in such Case the Obligation is not really forfeited unless there be a demand of the Rent , Crook Eliz. p. 828. Specot and Sheeres .

A Condition to perform Covenants in an Indenture , whereby he lets Land , rendant 10 l. per annum , or within six days after the Feast . The Defendant pleads performance . The Plaintiff assigns a Breach , that he such a day being the sixth day after the Feast before Sun-set demanded 3 l. Rent then due , and that neither the Defendant nor any for him was ready to pay it ; for which , &c. Per Cur. 1. He need not shew the certain time when he came , nor how long he remained there . 2. Whereas it was objected this demand was not good , because he demanded it as a Rent then due ; for he ought to have demanded it as a Rent due the last Feast : But per Cur. it is not due to be demanded till the sixth day , though the Tenant , if he will , may pay it before . 3. The Condition being for performance of Covenants , Payments and Agreements , the Non-payment of Rent upon demand on the last day , was a Breach of the Bond ; Crook Jac. 499. Thompson and Field .

Debt on an Obligation conditioned to perform Covenants and to pay Rent : The Defendant on Oyer pleads performance , to which the Plaintiff demurs , as being no special Answer to the Rent ; which per Cur. is ill . Judgment pro Quer. 3 Keb. 60. Betent and Frim .

Per Hales , If the Lessee covenants to perform Articles in an Indenture , it is sufficient to say the Rent was demanded ; but if there be an express Covenant to pay the Rent , there needs no demand , 3 Keb. 299. in Drew and Baylies Case .

A Condition to perform Covenants in a Lease . The Defendant pleads Conditions performed . The Plaintiff assigns a Breach for Non-payment of Rent . The Defendant pleads to this a Release of all Demands . Per Cur. this Rent is not released by all Demands , Siderfin p. 141. Hen and Hanson .

In Debt on a Bond , the Condition to perform Covenants of payment of Rent and another particular . The Defendant pleads Covenants performed generally . Plaintiff demurs , because he should have pleaded to each particular performance or other particular Plea , and so whereever particulars are specified ; but when it is to perform Covenants in an Indenture , performance according to the Indenture is sufficient , 2 Keb. 362. Brown and Talderly .

On performance pleaded the party cannot after plead Rent was not demanded ; Aliter on a particular Covenant to pay Rent , for perimplevit implies actual performance , not by way of excuse , 2 Keb. 848. Forth and Lewin .

The Lessee covenants to pay his Rent to the Lessor , and he pays it before the day , the same is not any performance of the Covenant : Aliter , of a Sum in gross , 1 Leon. p. 136. in Littleton and Pernes Case .

The Condition was , that the Defendant should pay to the Plaintiff 10 l. which is for Rent of certain Lands . The Defendant alledged the Plaintiff had entred upon the Land and so a suspension . The Plaintiff demurred , and adjudged for him ; for this being but a recital that it was for Rent is not material ; it seems the same though he had applied it by pleading to the Lease , Heb. p. 130. St. John and Diggs .

On Covenants in a void Lease .

THE Covenants depend upon the Lease , and the Bond upon the Covenants . If a Lease be made and after surrendred , all the Covenants and Bonds for the performance of them are void also , in Sapeans and Skurro's Case , Yelv. p. 19. Quaere .

A Grant or Assignment of so much of a Term as shall be unexpired at his death , and a Covenant that the Grantee shall quietly enjoy & the Grantor dies ; in Bond for performance the Action of Debt is brought against the Executor , though the Assignment be void ; but this is a Covenant by it self , and the Breach was that the Executor entred on the Grantee . Per Windham , the difference is where a Deed is void in the Fabrick , there the Covenants on it are void ; as when a Freehold is to commence in future , and where there is only want of Interest in the party Grantor , which the Court agreed . 2. The Condition was to keep and perform all Covenants generally , which being void , the Bond is single ; if there had been no Indenture the Bond had been good single , 1 Keb. 130. Cavenhursts Case .

A Parson made a Lease for years and became bound to the Lesse to perform the Covenants in the Lease . The Defendant pleads , the Lease is void by the Statute of 14 Eliz. because he was absent from his benefice above the space of 80 days . Per Cur. the Plea is good as to that Point , 3 Leon. p. 102. Cox's Case .

One that is mere Laicus being instituted and inducted made a Lease for years of the Rectory , which was confirmed by the Patron and Ordinary . In Debt for performance of Covenants , Per Cur. this Lease shall bind the Successor Incumbent , Crook Eliz. Costard and Windet .

To perform Covenants in a Lease against Stat. 32 H. 8. Leases made to Alien Artificers , void , Siderfin p. 357. Freeman and King , 1 Sanders Javans and Harweck , Siderfin p. 309.

An Obligation to perform Covenants of an Obligation void by the Statute of 14 El. c. 11. 1 L● . p. 100. St. John and Petits Case .

If the Indenture of Covenants be made void , as by Release , &c. the Bond is void , 2 Keble 116.

On Covenants in a Mortgage .

A Grant , Bargain and Sale of certain Lands with a Proviso that if the Defendant did not pay 40 l. such a day , then it should be void . The Condition was to perform all Covenants , Clauses , Payments and Agreements contained in the Deed : This doth not extend but to compulsory Payments , and not to the voluntary Sum in the Proviso ; for if he choose not to pay , he may forfeit the Land to the Plaintiff , Yelv. p. 206. Bristow versus Knipe , 1 Bulstr. 156. Id. Cro. Jac. 281. Id. Case .

Debt on an Obligation to perform all Conditions , Covenants , Payments in the Indenture . The Defendant pleads , one Condition was of a Lease to pay on a Mortgage , or to be void , and that he was not bound to perform it . The Plaintiff demurs , ( Vid. 3 Keb. p. 387. ) adjudged for the Defendant , because the Land was to be lost for Non-payment , 394. Per Hales , the word Conditions would be idle , if this were not effectual ; aliter , if the word Conditions was not in , and then it would be at the Mortgagors Election to pay or forfeit : But here perhaps the Lessor had no Title , and so it is requisite the Mortgagee should have his Mony , 437. Per Cur. were it a Condition in the Indenture specially recited in the Bond , though thereby the Mortgage was forfeited , the Bond is so too upon Non-performance ; but being general to perform all Covenants and Conditions , it binds only to such as are compulsory , 3 Keb. 454 , 460. Toomes and Chandler .

On Covenant for Reparations .

THE Plaintiff assigns the Breach in one Covenant , whereas the Plaintiff had leased Houses , &c. the Defendant did covenant to repair all the said Houses alia quam quae appunctuat . for●t divelli pro Qu●r . and shewed that the Defendant had not repaired the Messuages to him demised , and averred that the House in which the Breach of Covenant is assigned non fuit appunctuat . divelli : Per Cur. this Averment was superfluous ; for if the House in not repairing of which the Breach is assigned was appointed to be pulled down , the same shall come in on the Defendants part to whose benefit it trencheth , for such appointment doth discharge the Covenant as to that , 1 Leon. fo . 17. Sir John Smith's Case . The Plaintiff assigned a Breach in Non-reparation . The Defendant pleads the Plaintiff had acqui●d and discharged him of all Reparations . The Plaintiff demured : Per Cur. this is an acquittance and discharge of the Reparations for the time past as well as the time to come , and amounts to as much as if he had released that Covenant ; but the Covenant being broken , that discharge shall not take away the Action on the Obligation , which was once forfeited , 3 Leon. p. 69. Anonymus .

A Condition to perform Covenants in a Lease , which recites a Lease of a Brew-house and a Mill in occupation of F. with Covenant to repair all the Premises . The Defendant pleads general performance as to the Brewhouse , and as to the Mill the Tenant did not attorn. The Plaintiff demurred ; per Cur. this is no excuse , though there be no Remedy for the Rent till Attornment , yet it was the Defendants fault he did not take a Covenant that the Under tenant should attorn , 1 ●eb . 879. Lewin and Forth .

A Bond conditioned to deliver up an House repaired at the end of the Term. The Defendant pleads , the Plaintiff agreed he should hold it for a longer time ; it is a good Plea , though a Covenant is not discharged without a Deed , w● it is to do any collateral Act , 2. Keb. 99. M● and Rainsborough .

A Condition to repair and sustain two M●ss●ages at all times . The Defendant pleads , he had performed the Condition in all , except as to one Kitchen , which at the time of the Demise was so ruinous that he could not repair it , but he pulled it down and rebuilt another , &c. this had been a good Plea in Action of Wast , not here where he hath by his own Act tyed himself to a disadvantage , 2 Leon. 189. Wood and Avery .

Pleadings on Bonds of Covenants . Variance .

DEbt on Bond of Covenants : After Verdict it was moved in Arrest of Judgment , that the Defendants Plea was , that praedictus Ed. did covenant that R. was seised , whereas the Defendants name was Robert that did covenant ; this misrecital is not material , because here is a good affirmative , and the Bond , if this be misrecited , is single . Contra , if it had been an Action of Covenant ; or when the Indenture by prayer of the Defendant is entred in hae● verba , 1 Keb. 126. Siderfin p. 49. Pegg and Wa●ere .

Variance between the Indenture and the Declaration shall not stay Judgment after a Verdict , Siderfin p. 49. Pegg and Waters .

The Covenant was , that he will assure , convey and assign a Lease . The Defendant pleads performance . The Plaintiff assigned the Breach , quod non assuravit , conveiavit & transposuit , Anglice set over ; and the Defendant pleaded quod assuravit , conveiavit & assign●t Anglice set over , and the word transposuit is not in the Covenant nor in the pleading of the performance thereof : It is Issue misjoyned , 2 Leon. p. 116. n. 155. Gray● and Constable .

In a Debt on a Bond of performance ; J. and A. were named in the Bond , but the Indentures , as pleaded , were only betwixt J. of the one part and the Defendant of the other ; but were re vera betwixt J. and A. on the one part and the Defendant on the other . Per Cur. it is a variance , and Judgment pro. Quer. 1 Keb. 127 , 167. Pavie and Hall .

Where Covenants are special , they must be specially answered unto and particularly , 2 Keb. 54. Herrick and Sanderson .

Against a negative or disjunctive Condition , the Defendant must plead specially .

Debt on a Bond for performance of Covenants ; the Defendant sets forth the Covenants by a Testatum existit , its ill ; this in a Plea in Bar , or Debt on the Indenture , is naught , aliter in Covenant , 2 Keble 54 , 79. Anslows Case .

Debt on Obligation , conditioned for performance of Covenants in quadam Indentura , bie in Curia prolat' , and in truth the Deed was not indented , adjudged pro Quer. Cro. El. 472. Frampton and Stiles , 5 Rep. 20. b.

In Barnstaple . Debt on Obligation to perform Articles ; the Defendant pleads performance ; this Bar is ill , not setting forth the Indenture ( below . ) The Plaintiff alledges non-payment to J. S. secundum formam Articulorum : Per Cur. the general Replication is well enough , without setting forth the Indenture ; but the Plaintiff by alledging the Breach hath waved the ill Bar , 3 Keb. 605. L● and Pigsly .

In Debt on Bond conditioned for performance of Covenants in an Indenture ; the Defendant pleads peformance generally ; this is not good unless he shew the Deed , and plead this : And it is not sufficient to shew the Deed , when the Plaintiff replies , and prays Oyer , because the Plea of the Defendant ought to be special , if any of the Covenants are in the negative ; and it doth not appear to the Court whether the Covenants are negative or affirmative , until the Deed be shewed ; if the Party who will plead the Deed , had it not , he ought to move the Court for to have the Deed or a Copy , Siderfin p. 50 , 97. Lewes and Ball.

Vide plus postea Tit. Oyer .

The Defendant pleads there are no Covenants ; Per Cur. this being general of all , is well ; cont . if it were to perform any certain Covenant , but the Party is estopt to say there is no Indenture , 1 Keble 381. Brazier and Acton . Mod. Rep. in Holloways Case ; yet 2 Keble 564. Smith and Yeo●ans , cont . but that was because of the shifting way of pleading .

The Condition was , Whereas J. S. claimed to have a Lease for years of D. granted to him by W. if the said Defendant keep without damage the Plaintiff from all claims , &c. the Defendant pleads the said J. S. had not any such Lease ; per Cur. he is estopt to say so by the recital .

A Condition to perform Covenants , The Defendant pleads the Indenture of W. S. and A. his Wife , whereas in truth his Wife never sealed it ; the Plaintiff replies , The Indenture shewn by the Defendant non fuit . fait , inter W. S. and Ann his Wife of the one part , and the Plaintiff on the other ; and Issue ; the Jury found , the Husband only sealed ; Per Cur. this Verdict is found against the Defendant , the Plaintiff is not estopt to say that the Deed shewn , is not the Deed of the Baron and Feme ; but he is estopt by the Condition to say that there is not any such indenture , Cro. Eliz. p. 796. Ship and Steed .

Release Pleaded .

If before the breach of any of the Covenants , the Obligee releaseth the Covenants , and afterwards one of the Covenants is broken , the Obligation is not forfeited ; for there is not now any Covenant which may be broken , and so the Obligation is discharged ; but if the Release had been made after the Covenant broken , aliter , 3 Leon. 69.

What is confessed by pleading Conditions performed .

Obligation to perform Covenants ; the Covenant was , If the Plaintiff pay the Defendant 100 l. at Michaelmas , that the Defendant would pay him yearly after 10 l. for his life , and averred he did not pay him 10 l. yearly , but did not mention the payment of 100 l. by him , which was assigned for Error ; Per Cur. it s no Error , because the Defendant by pleading Conditions performed , had confessed the payment of the 100 l. to him by the Plaintiff , Moor n. 474. Goodwin and Isham .

If the substance be answered , though not the very words , its good ; as the Condition was , if he perform all the Covenants , Conditions , Agreements and Articles , and when the Defendent cited them in his Plea , which are all the Covenants , Conditions , Agreements , and leaves out ( Articles ) and so hath not pleaded performance of the Condition ; but per Cur. Agreements is all one with Articles , and if many words contain one thing in signification , if he answer to them in substance , its good ; and the Condition was , If the Defendant and T. and their Assigns perform , &c. and he pleads he and T. had performed , but saith not , he and T. and their Assignes had performed , &c. and it may be they had assigned it over ; but per Cur. it appeareth not there is any Assignee , and it shall not be intended , except it be specially shewn , and a Bar it good to common intent , Cro. Eliz. p. 255. Eniot and Cole .

Where an Act is to be done according to a Covenant , he who pleads the performance of it , ought to plead it specilly ; but where no Act is to be done , but only a permittance , permifit is a good Plea ; one Covenant was , That the Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have free ingress , &c. at his pleasure , the Defendant pleads , quod permifit D. querentem habero intrationem & exitum , &c. in tales t●rt● quales tunc jacobant frisca secundum con●uetudinem p●triae , he need not shew in certain what Lands did lie fresh , and it shall come on the Plaintiffs part to shew in what Lands the Defendant non permifit , 1 Leon. p. 136. Littleton and Perne .

The Defendant is not bound to plead performance of any more than his own Grants and Covenants , vid. Dyer 26 H , ● . 27 . b.

One Covenants with J. S. that he shall enjoy the Land ; and farther , that A. a Farmer of the Tithes shall pay 8 l. per annum , and is bound to performance ; in Debt on Bond , its good to plead performance of the Covenants , ex parte sua perimplend . for this implies the Farmer had paid the 8 l. and express mention of that needs not be , Dyer 23 El. 372 , 373.

In Debt for non-performance of Covenants , the Plaintiff ought to shew how the Covenants are broken ; and if it be in non-payment of Rent , he ought to shew in certain , what day the Rent was arrear , 9 H. 6.18 .

Debt to perform Covenants ; one was , to many the Plaintiffs Daughter before such a day . 2. That Sir E. S. and his Wife should levy a Fine of such Lands , &c. 3. Whereas he granted a Lease of , &c. to S. that he had not made any former Grant , nor would afterwards make any Grant thereof , without the Plaintiffs assent ; the Defendant quoad the last Covenant in the negative pleaded , that he had not made any former Grant of the Lease , nor had made any Grant after the Obligation , without the Plaintiffs assent . Et quoad omnes alias conventiones , that he had performed them ; the Plaintiff demurs . 1. Because the Covenant to levy a Fine is an Act to be performed by a Stranger , and to be performed on Record ; and it s not sufficient to plead general performance . 2. Because the Covenant being in the disjunctive , he ought to shew specially which of them , and not generally . 3. He pleaded , he did not grant without the Plaintiffs assent , which is negativa prognans ; Per Cur. for these Causes the Plea not good , Cro. Jac. 560. Lee and Luithil .

Issue , Trial.

COvenants in a Lease of an House ; the Defendant pleads he was an Alien , born at Paris in France , and an Artificer ; and so by 32 H. 8.16 . the Lease void ; the Plaintiff replies , The Defendant was not an Alien and Artificer ; the Defendant demurs : Per Cur. Alien and Artificer are but the same Person , and but one Breach . 2. This Issue cannot be tried , because the Replication should have been , that he was a Denizen born at Islington in England , and that he is no Alien generally , 2 Keble 315. Freeman and King 98.

On performance generally pleaded , the Plaintiff may reply with particular Breach , & hoc paratus , &c. and leave the Issue to the Defendant ; contra on Condition to pay Mony at several days ; the Defendant pleads particular payment ; the Plaintiff replies , he did not pay such a day certain , & hoc paratus , &c. it s ill , 1 Keble 759. Charleton and Fine .

The Defendant pleads Covenants performed ; the Plaintiff assigns a Breach in not delivering up an House ; the Defendant rejoins , before the end of the Term the Plaintiff gave him leave to continue it longer : Per Cur. it s a departure , the parol Agreement was pleaded in Bar , 1 Keb. 678. Brooks and Lake .

The Defendant pleads the Obligation was for performance of Covenants , and shews what , and alledgeth farther , that in the said Indenture is a Proviso , si aliqua lis vel controversia oriatur imposterum by reason of any clause , that then before any Suit thereon , the Parties should choose four indifferent Persons for the ending thereof , which being done , the Obligation to be void ; and in facto saith , that Controversy did arise ; the Plaintiff demurs ; per Cur. because the Defendant hath not shewed what strife , and what clause , the Bar is not good , for it extends not to every Covenant , only where strife ariseth , 1 Leon. 37. Parmort and Griffin .

A Condition for performance , and sets forth the Covenant , and shewed farther , that the Plaintiff after sealing procured J. S. to rase the Indenture , and shews wherein , and so the Indenture became void : Per Cur. it s against the Defendant , the Rasure not being in a place material , an the Rasure trencheth to the advantage of himself who pleads it ; and if the Indenture had become void by the Rasure , the Bond had been single , 1 Leon. p. 282. The Lord Darcy and Sharps Case .

A Condition to perform Covenants ; one was , To give an account just and true ( being a Brewers Clark , ) the Defendant pleads performance ; the Plaintiff replies , by receipt of 30 l. The Defendant rejoins , that it was stollen out of the Plaintiffs Counting-house ; the Plaintiff demurred ; the Robbery is a good ●ar ; but the Plaintiff per Cur. discontinued , because a Rule for Trial of the Robbery was disobeyed , 2 Keble 761 , 779 , 830. Vere and Smith .

A Condition to perform Covenants ; one was not to take a new Lease without assent of the Plaintiff ; the Defendant pleads he took no new Lease contra f● Indentur . The Plaintiff replies , he did take a new Lease , but saith not without assent of the Plaintiff ; the Defendant demurs ; per Cur. the Replication is good ; for the Plaintiff is misled by the Defendant , and the Issue is good enough , 3 Keble 524. Perry and W●itby .

A Condition to perform things for which he was bound in a Recognizance ; the Defendant pleads specially , that he acknowledged a thing in nature of a Recognizance , but upon special matter it appeared to the Court it was not any Recogni●ance ; male , for it amounts to the general Issue , 1 Rolls Rep. 83. Fletcher and Farrer .

A Condition to pay unto the Plaintiff all such Legacies which he had given to him when he should come of his full Age , &c. The Defendant pleads he paid omnia talia Legata qualia ad tale tempus generally , without shewing the particulars , and time when , and so the Plea not good , 1 Bulst . p. 43. Stone and Bliss .

To do or permit other Acts ; to save harmless .

A Condition for saving the Plaintiff harmless from all Legacies ; and shews for Breach , there was a Suit commenced against him in Chancery for a Legacy ; Per Cur. this Declaration is not good , because he doth not shew such a Legacy was devised , or that he was chargable with it . 2. Because he doth not shew any place where Chancery was ; in all Cases where a Man pleads any thing out of Chancery , or any thing to be done in Chancery , he ought in pleading to shew the same certainly , and to say in Ca● . apud Westen . otherwise upon Issue no Venue can arise , 2. Bul● . 19. Dowty and Fawn . Yelv. 226. id . Ca● . ● Brownl. 117. id . Case . vid. 1 Rolls Abr. 430.

A Condition , if he save harmless and indempnifie the Plaintiff and his Lands in Sale from an annual Rent of such a Lease during the said Term , the Defendant pleads quod a tempore confection . script . obligation . hucusque exoneravit & indempnem conservavit the Plaintiff and all his said Lands from the said Rent , Et hoc , &c. Plaintiff demurs , he ought to shew quomodo exoneravit , it being a Plea in the affirmative ; had he pleaded non dampnificavit , it had been good , Cro. Jac. 634. Horseman and Obbins , Winch.

To save harmless from Incumbrances , vide antea .

A Condition to save harmless from such a Bayl in such an Action ; the Defendant pleads quod libere & absolute exoneravit ; &c. and shews not how he had discharged him , and therefore ill ; aliter if he had pleaded non dampnificatus , Cro. Jac. p. 363. Codner and Dalby . 2 Bulst. 270.

A Condition to save the Plaintiff harmless against J. Roberts of one Obligation ; the Defendant pleads non dampnificatus ; the Plaintiff replies , that J. R. had sued him to the Exigent , and then he appeared , and R. had Judgment against him , & issint dampnificat . the Defendant rejoins , that he had retained Attorn. pro Plaintiff , and the Plaintiff was at no Expences , nor was arrested , nor Lands or Goods seised , and that after Judgment he was not dampnified ; the Plaintiff demurs ; Cur. pro Quer. for immediately upon the Judgment given he was dampnified , for all are liable to execution ; and if the Defendant after Judgment had paid the Debt , it would not serve , for he was dampnified before , Cro. El. p. 264. Bush and Ridgely

Act. port by High-Sheriff versus Under-Sheriff ; The Defendant pleaded he saved him harmless ; the Plaintiff demurs ; male Ple● , for he may save him harmless in many things , and yet the Plaintiff may be dampnified in some other ; he ought to have pleaded non dampnificatus , Stiles p. 23. Car. 1. fol. 16. Wroth and Elsey , that he saved harmless , and shews not how , Cro. Jac. 165. Alingtons Case .

The Defendant pleads non dampnificatus ; the Plaintiff replies , and shews a Breach on the Defendants part , wherein he was dampnified ; the Defendant demurs , because the Breach was assigned to be at Westminster , and doth not shew in what County Westminster is , and good , Stil● p. 142. M. 24 Car. B. R. Nelson versus Tompson .

A Bailiff conditions to save the Under-Sheriff harmless in executing Process , &c. and assigns a Breach that , the Bailiff had not executed his Warrant upon Process directed out of the Exchequer , to levy Issues on Lands in the Mannor of A. but he doth alledge that the Mannor is within the Hundred where he is Bailiff , quod aportuit , and a good exception ; for a Bailiff cannot execute a Precept out of his Hundred , Stil●s p. 18. Pasch. 13. Car. 2. Stoughton and Day . Allen p. 10. id . Case .

The Condition of a Bond to save the Obligee harmless concerning his buying of certain Goods at such a price , extends not to the Price but to the Title , Allen p. 95.

A Condition to save the Plaintiff and Inhabitants of N. harmless from all Charges that may happen by placing A. in a Cottage ; the Defendant pleads non dampnificatus ; the Plaintiff replies , they were forced to provide Necessaries by reason of a Rate set on the Inhabitants by Justices and Overseers , good , without shewing any particular Inhabitant was charged ; the possibility that they may be charged by the Rule , is a sufficient dampnification , 1 Keble 392. Tavernor and Quatorman .

A Condition to save harmless from all Damage that may happen by non-payment of Legends , being Executor of J. S. the Plaintiff alledgeth damage in Suit by Legatee in Chancery ; the Defendant demurs ; Judgment pro Quer. 1 Keb. Hill . 14 , 15 Car. 2. p. 464. Gibs and Tailor .

A Condition to save harmless of being Bail for an appearance ; the Defendant pleads non damnificat . on Oyer ; the Plaintiff replies , the Defendant did not appear , per quod the Sheriff did prosecute him per dubitum logis cursum ; here being a Suit alledged is a sufficient Breach , per Twisden , Q. 2 Keble fol. 625. Pas. 22 Car. 2. Baker and Porter .

A Condition was to save the Plaintiff harmless from all Actions and Damages that might arise upon the release of the Defendant out of Execution ( being then in execution at the Plaintiffs Suit ) from all Persons that might trouble him concerning the said Release : the Case was , The Plaintiff sued N. in the Court at Y. for 100 l. the Defendant and one H. became Bail ; the Plaintiff had Judgment against N. and also the Bail ; the Defendant was thereupon taken in Execution ; but before the Defendant was 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 She●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 i● 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 B●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 & indemp●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 qu●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 da● , per quod the Plaintiff became on●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 Qu●r. 3 Keble p. 336. T●●● . 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 s●●pius requisitus had not acquitted him ; the Defendant demurs , because the Plaintiff had not alledged p●●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 . Capia● 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 Cobb●

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 & issl● non damnificatu● , 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 P●o● . 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 Ba● , Crook Eliz. 6 2. Morris and Lutter● .

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 had satisfied so much , or that was not molested , Crook Eliz. p. 393. Hutchinson and Le●son .

The Condition is if R. C. acquit R. F. and J. B. of such Sureties they have made to N. that then , &c. pleaded that R. F. and J. B. were bound to N. in 15 l. and R. C. did procure Acquittances of N. to R. F. and J. B. for the same : See the form of pleading : Quaere if good Plea , 1 H. 7.30 . a.

The Condition was to secure him harmless against J. S. in an Action for 53 l. for which he was Bail for him . The Defendant pleads he had paid to J. S. 20 l. in satisfaction of the 53 l. and so kept him harmless ; but for that the Plaintiff might be damnified before the payment , to which he doth not answer , the Plea is ill , Crook Eliz. p. 136. Davies and Thomas .

In Debt on a Counter-bond for Security of Bail given for appearance of the Defendant . The Defendant pleads non damnificatus . The Plaintiff replied Non comparuit . The Defendant rejoyns , that the first Bond given was void per 23 H. 6. and that there was no Latitat issued forth ; per Cur. this is a departure . But notwithstanding the Bond the party is not estopt to say there was no Latitat ; but the Non-appearance is a damnification , be the Bond void or not , 1 Keb. 59 , 98. Cook and Morgan .

Condition to permit .

WHere no Act is to be done , but only a Permittance , he need not plead it specially ; and non permifit or permisit is a good Plea . A Covenant , that the Plaintiff to such of the said Lands , as by the Custom of the Country tunc jacebant frisca , should have free ingress , &c. The Defendant pleads , quod per●nisit Querentem intrare , &c. in tales terras quales tunc jacebant frisco secundum consuetud , patriae ; he need not shew what Lands did he fresh , 1 Leon. p. 136. Littleton and Perne .

L. covenants with S. that he would suffer him and his Assigns to have free ingress , &c. into his House and Shop without let or interruption of the said L. and that S. appunctuavit one T. ut servientem suum in Messuag . &c. intrare in usum de S. super quo praedict . T. intravit , & praedictas L. expulit . Moved in Arrest . 1. It is alledged L. expels the Servant , and this was the expulsion of the Master . 2. Appunctuavit intrare , and doth not say what time , for perhaps his Licence to enter might be determined . 3. It is not said at what time he entred , but super quo intravit ; all these Exceptions were over-ruled , 2 Rolls Rep. 78. Snelling and Lowe .

The Condition was , if A. ( a Stranger ) would render himself to an Arrest in such a place . The Defendant pleads A. was a Servant to a Parliament-Man and pleads Priviledge . The Plaintiff demurs , Pro Quer. for A. might render himself , and let it be at their peril , if they will arrest him , 1 Brownl . Rep. 91. Jackson and Kirton .

A Condition to perform all Covenants in a Lease made by her Husband of a Warren ; one whereof was to do no Act to disturb the Lessee ; she after marries another Husband , who entred on the Plaintiff and cut his Nets , no Title being shewed by which he entred ; The Plaintiff demurred , and Judgment pro Quer. It is not requisite that the Husband be Assignce of the Estate , but her Assignce of Contract , which she might have avoided , the Husband acts in her Right , 1 Keb. 348 , 512. Hall versus Creswel & Uxor .

One is bound to permit his Tenants to use the Common , and that he shall not alter the Course of the Common , quod permisit , and that he shall not alter , &c. is a good Plea generally , 11 Eliz. Dyer 279.

Condition to surrender Copyhold Lands .

THE Condition was , that the Obligor should surrender his Copyhold Land to the use of the Obligee ; he pleaded , he had surrendred it ; ill Plea , because he had not shewed when the Court of the Lord was holden , Winch p. 11. Llewellins Case .

The Condition reciting whereas such Copyhold Lands were to be surrendred by A. S. at her full age , to the use of the said Hammond and Guy and their Heirs , and that Gay should pay to Hammond 33 l. at such a day , and if he failed it should be to the use of Hammond and his Heirs . It was conditioned , that if the Obligor procured the said A. S. at her full age to surrender to the use of Hammond and his Heirs , and if Hammond and his Heirs might have and enjoy the said Lands to him and his Heirs , then the Obligation , &c. The Defendant pleads Gay paid not the 33 l. and that A. S. came of full age such a day , and afterwards at such a Court in full Court did surrender , release and quit claim to the Plaintiff , being in possession , all her Estate , Right and Interest in the same Tenements , and that the Plaintiff always after might have enjoyed the same Tenements . The Plaintiff replies , quod bene & verans est , that the said A. S. did surrender prout , &c. but that afterwards ( such a day ) the said Gay entred and expelled him ; The Defendant demurs , per Cur. the Replication is not good , because he hath not shewed he was evicted by lawful Title , for otherwise this Bond doth not extend to it ; and per Cur. the Bar ( that shall be surrendred and released in Court ) is good and certain enough according to common intendment . And although it be not said she surrendred to the use of the Plaintiff , yet it being alledged it was surrendred in Court and accepted by the Plaintiff and confessed by the Replication , it is good , Crook Car. first Case , Hammond and Dod.

The Condition , whereas F. held Copyhold Land of Sir J. K. if he within six Months after the death of F. granted the Land to the Plaintiff and two others whom the Plaintiff should name , for three Lives according to the Custom of the Mannor , that then , &c. The Defendant pleaded , the Plaintiff nominated no Lives . The Plaintiff replies , Sir J. K. within the sixth Months granted it to J. S. and two others for their Lives , who are yet alive , the Defendant pleads non con●ossit , and found against him . It is not Error , that the Plaintiff in his Replication shows not that the lands are Copyhold , for the Condition reciting it is Copyhold Land , he is estopt , Crook Ja● . p. 275. Sir J. Kernes Case .

To satisfie Imbeziled Goods .

ONe was bound to satisfie for Goods he had imbeziled ; he pleads that upon suit for those Goods , he was taken in Execution for the damage . No Plea 33 H. b 47. Hillaries Case , Hob. p. 59.

The Condition , if A. turned over Apprentice should waste the Goods of his Master , to pay what the Master was damnified ; no damage pleaded . Plaintiff sets forth goods wasted , but it s forth no notice given to the Defendant ; no notice is necessary ; when any one undertakes for a third person , he must answer for him at his peril , because the imdesilment is not in the Conisance of the Plaintiff , and the particulars of the Goods wasted need not be set forth . 1 Keb. 467.471 . French and Beirce .

To enjoy Office .

A Condition , Whereas the Plaintiff and Defendant be now jointly seised of the Office of the Registry of the Court of Admiralty : if the Defendant shall permit the Plaintiff to use the said Office , and take the profits of it to his own use during his Life , without let or interruption done by him , then , &c. the Defendant pleads , That the Custom of the Realm of England is , that the Lord Admiral might grant the said Office during his own Life ; and the Lord Clynton did grant it to the Plaintiff and Defendant , and dyed : and the Lord Howard granted to Wade , who ousted him ; before which time the Defendant suffered the Plaintiff to enjoy the said Office , and to take the Profits ; the Plaintiff demurs ; male plea , for if it be the custom of England , then its common Law , and this cannot be tryed , for no Venue can be from the Realm of England ; also he doth not answer to any time after the grant of Admiral Howard ; for though Wade might lawfully put him out , yet the Defendant could not , 2 Leon. 114. Parker and Harrold .

Condition , if the Plaintiff had possessed and enjoyed the Office of Ecadleship , &c. that then , &c. Defendant pleads , quod habuit gavisus fuit & occup●vit , &c. Jury find the Plaintiff did exercise and occupy that Office , but whether that shall be said having and enjoying , they doubted . Per Cur. diversity between an Office in verity and an Office in reputation ; for of Office in reputation there can be no other possession but by occupation , for it is no Office in Interest , as Office of Marshal , of Justice of Assize , Cro. Eliz. p. 382. Dudly and King●n .

To procure an Office , Place , Benefice .

THe Condition was , if S. procure a Grant of the next Avoydance of the Arch-Deaconry of Staff . to be made to the said Bingham , so that the said Bingham to such next Avoydance may present , that then , &c. the Case was , by the means of S. the Grant of the said next Avoydance was made to Bingham , but before the next Avoydance , the present Arch-Deacon was made Bishop , so as the Presentment to the n●t Avoydance appertained to the ●en ; Per Cur. the Condition was not performed and that by reason of these words ( so that Bingham may presented ) 3 L●on . 151. Bingham and Squire .

Condition , if the Defendant do not lawfully procure Market to be granted within six Months of a return of an ad quod damnum to be sued out for that purpose , that them if the Obligor pay 20 l. to the Obligee , then , &c. it was returned to be ad damnum , and so no Market procured ▪ Obligee shall recover the 20 l. Rationem , vide 2. Rolls Rep. 467. J … and March .

Conditions concerning Writings to procure to deliver . to execute to make .

IF a Man bind himself to procure a Stranger to make a Release of all his Right and Title to Land , the Obligor must procure him to make such a Release de facto , though he had no right . 1 S●●ders 216. Doughty and Neal. Vide there the Form of the Condition and the Pleadings .

A Condition if J. S. make Obligation to the Plaintiff before Michaelmas , that then , &c. the Defendant pleads J. S. made the Obligation , and sealed it and delivered it to another as his Deed , to the Use of the Plaintiff , Per Cur. it s no performance , for perhaps the other will not deliver it to the Plaintiff , Cro. Eliz. p. 143. Bease and Draycot .

Condition to pay 100 l. to the Plaintiff when he shall take a sufficient discharge from A. and B. for the payment of Legacies : an Acquittance from one by the others consent is no sufficient discharge , 1 Keb. 739. Forquer and Fra● .

Condition that the Daughters when they come to full Age shall give Releases , it shall be taken di● 2 Keb. 591. ●osviles Case .

Condition to give such a Release and Discharge from and against him and his Heirs , for receipt of a hundred Marks , as by the Judge of the Prerogative Court of Canterbury shall be thought meet : the Defendant pleads the Judge did not appoint any release or discharge , &c. no Plea , for it should be alledged he caused a Release to be drawn , and tendered to the Judge to be allowed of , for it is on his part in discharge of his Obligation , to draw such a Release as the Judge shall allow : Cro. Eliz. p. 716. Lamb and Brownwent , 5 Rep. 23. b. The Judge is a stranger to the Condition , and he hath taken it upon him to do it at his peril ; he ought to procure the Judge to direct it : Lambs Case .

A Condition , if Obligor deliver to the Plaintiff an Obligation in which he was bound to the Defendant before such a day ; that then , &c. the Defendant sueth the Plaintiff upon the Obligation and recovereth , and afterwards and before the day he delivers it to him ; this is no performance ; though the words were performed , yet the intent was not ; for the intent was , he should have the Obligation for his discharge , which is not by the delivery , for tranfit in rem , judicatam , and he may have the benefit of the judgment , Cro. Elz. p. 7. Teales Case .

If a man not Lettered be bound to make a Deed , he is not bound to seal and deliver any Writing which shall be tendred to him , unless there be some body present that may read this to him , or expound it if he request it , 2 Rep. 3. Mansers Case .

The Condition was , to seal and execute a Release to the Plaintiff . The Defendant demurs , because the Plaintiff in his Declaration did not alledge a Tender , the Condition not being to make , but to seal and execute . Per Cur. he is bound to do it without a tender , Mod. Rep. 104. Baker and Bulstrode .

Condition was , That the Obligor shall deliver all Writings concerning such Land ; it s a good Plea to say generally ; that he had delivered all the Writings , 28 H. 8. Dyer 28. 4 H. 7.12 .

Condition to enfeoff the Obligor of certain Lands , at such a day and place . Pleaded that the Defendant was present there all the day to enfeoff the Plaintiff , and that the Plaintiff came not there to accept of this : Plaintiff replies , he was there present all the day to accept the enfeoffment , without that that the Defendant was there : it s a good Replication , Doct. pl. 323. 22. Ed. 4.43 .

Condition to deliver Possession .

COndition if R. H. upon request by the Plaintiff his Heirs or Assigns should deliver the Possession of such a Farm to the Plaintiff , his Heirs or Assigns , &c. The Plaintiff assigns the Reversion by Deed to Richard and Henry P. in Fee . At the day H. P. alone came and demanded the Possession , without notice given of ●s coming , &c. Per Cur. 1 The de● of H. P. is the demand of both , and the delivery of the Possession to one had been delivery to both . 2 The two Barga●es need not give notice to the Defendant that they had the Reversion by Bargain and Sale ; for being the condition of a Bond , it is at his Peril to take notice , being obliged to deliver it to him or his Assigns , Cro. Jac. p. 475. Hingen and Pain . Bridgman Rep. 128.

The Condition was , that the Defendant should not deliver Possession to any but the Lessor , or such persons as should lawfully recover . The Defendant pleads he did not deliver but to such persons as lawfully recovered it : Good Plea , he need not shew he delivered to J. S. by lawful Title , 1 Keb. 380 , 413. Nicholas and Pullen .

Conditions concerning Wives .

COndition not to sell the Apparel of his Wife ; it s a good condition .

If a man bind himself to a stranger to pay 20 l. per Annum to his Wife , this is good , 1 Rol. Rep. 334. Smith and Watson .

The Condition was to permit his Wife to make a Will , and dispose such Legacies ; the Defendant pleads she made no Will ; it was found she made a Will , but that she was Covert , &c. Per Cur. This is a good Will , within the intent of the Condition , and it is but her appointment , which the Husband by his Obligation is bound to perform , Cro. Car. 219. Marriot and Kin●an .

The Condition was to permit his Wife to make a Will , and to dispose of one hundred pounds of her Husbands Goods , 〈◊〉 paid within one year after her decease . The Defendant pleads ●e permitted his Wife to make a Will : the Plaintiff demurs . Per Cur. he ought to have pleaded , that he had paid accordingly , otherwise he doth but answer to one part of the Condition . Cro. Car. 597. Sherman and Lally .

The Condition was , if he should survive A. S. his Wife , that if within three Months after her decease there were paid to the Obligee 300 l. to and for such uses and purposes as the said A. S. by any Writing under her Hand and Seal subscribed , &c. should nominate and appoint , that then , &c. The Defendant pleads she did not limit , &c. any use for the imployment of that mony . The Plaintiff replies , she by her Will in Writing , &c. did appoint such Sums to be paid . The Defendant demurs , because she ought to have made a Deed in Writing , and not a Will. But Per Cur. this Declaration was good ; and though the pleading was , that A. S. Voluit & devisavit , and not that it was appointed by her ; yet Per Cur. well enough ; for it is not properly a Will that is made by a feme Covert , but a Writing in nature of a Will. Cro. Car. 376. Tille and Petre.

Authority was given to the Wife to ●lso 300 l. and she disposeth 200 l. by fifties , and well .

Condition to make a Will in the presence of her Husband , or if he refuses it , such person as her Husband should appoint . Qu. If refusal ought to be alledged , or notice to the Husband , 1 Keb. 347. Harris versus Beffie .

To procure a Marriage between the Plaintiff and B. P. such a day , or before . The Defendant pleads the Plaintiff before that day called B. P. Whore , and used other base Language , by reason whereof the Defendant could not procure the Marriage ; no Plea , for he hath not shewed his endeavour to procure the said Marriage ; and notwithstanding such words they might have inter-married , Cro. El. p. 694. Blandford and Andrews .

A Condition to pay such a Sum as E. B. should appoint after Marriage with the Defendant by her last Will , or other Writing signed in tiel form ; the Defendant saith she made no Will , nor any other Writing , &c. the Plaintiff sets an appointment in Writing forth ; the Defendant saith it was after revoked ; this is no departure , because its a fortification of the Bar , and could not be foreseen , and its revocable , contrary to Hobert , Ormonds Case , 1 Keble p. 821. Shepard and Spencer .

A Condition not to meddle with the Goods of the Feme , which were her first Husbands , but that she and her Children might enjoy them sans disturbance , claim or interruption of the Defendant ; Breach assigned , that the Defendant took and detained the Goods of the first Husband ; and Issue pro Quer. and the Breach well assigned Cro. Car. p. 204. Crawle and Dawson .

A Condition to pay so much yearly to his Wife ; it good , as well as to give her a Gown , 27 H. 8.27 .

Condition to accept a Lease .

A Condition , If the Obligor accepted a Lease by Indenture of such Lands upon the Plaintiffs request , and sealed a Counter-part thereof , then , &c. The Defendant pleads , the Plaintiff did not request him to accept a Lease ; the Plaintiff replies , he had caused an Indenture to be drawn , and ingrost according to the said Condition , and a Label affixed cum sera appensa , and required and offered it to the Defendant to accept thereof , and he refused ; Issue upon the request found pro Quer. Error . 1. Sera is not Wax , sed non allocatur . 2. Because he avers not the Lands mentioned in the Indenture , are the same in the Condition ; but because he pleads non requisivit , and he replied it was secundum formam Conditionis , it shall be intended the same Lands ; and if they were other Lands , the Defendant ought to shew it , Cro. Car. 560. Lee versus Russel .

Condition to appear at a Place .

THE Condition was , That S. and his Wife should appear at the Marshals Court : S. appears and pleads , that at the time of the Obligation he was solus & innuptus ; Judgment pro Quer. sur demurer , Stiles p. 17. Pain and Skelton .

To appear within eight days after warning ▪ warning ought to be shewn to be given of the Action brought , Cro. Jac. 46. Yelv. p. 52. Hargrave and Rogers .

In Debt on an Obligation to appear at a certain day ; Imprisonment is no Plea , 2 Rolls Rep. 136. Anonymus . In a Recognizance to appear , &c. Imprisonment by Commissioners of the Ad●ralty is an excuse , Moor n. 251. Lacies Case .

A Condition to come to the Kings Head , &c. on the 12th of October , and there elect two Arbitrators , who with two others to be elected by the Plaintiff , should arbitrate of all Sums , &c. the Defendant pleads , on the 12th of October he came to the Kings Head , &c. and there elected two Arbitrators , but the Plaintiff was not there ; Plea not good , because he shewed not at what hour of the day he came , nor how long time he continued there ; for he ought to be there so long time before the last instant , as the Arbitrament may be made ; neither doth he shew that his two Arbitrators were there present , Cro. Eliz. 549. Edmonds versus Marks .

The Under-Sheriff took a Man by Attachment out of Chancery , who took Bond of him to appear at the day contained in the Attachment : Per Cur. the Bond is void , for that the Defendant was not bailable upon the Attachment , 3 Leon. 208. Bland and Riccards .

Debt upon an Obligation taken in the Kings Name , in the Court of Requests , with a Condition to appear before the Master , &c. the declaration is general , that the Defendant such a year and day by his Obligation did acknowledge himself to be bound to the King in 60 l. to be paid , &c. and naught , because it did not appear to be taken in a Court of Record , 1 Brownl . p. 68. Rex versus Castle .

Not to alien .

A Condition to perform Covenants ; one was , That the Lessee , his Executors or Assigns , nor any other who shall come to have the Estate or Interest in the Term , shall not alien their Estate sans licence of the Lessor , but only to his Wife or Children ; the Lessee deviseth it to his Wife ; she alieus the Covenant is broken , it extends to the Lessee and his Assigns , and she is Assignee express ▪ so although there was once an Alienation by Licence , yet that Assignee cannot alien sans Licence . Where a Condition is in a Lease that neither he nor his Assigns should alien without Licence ; the Lessee died Intestate , the Administrator was bound by this Condition , Cro. El. 757. Thornil and Adams versus King & sa Feme .

A Condition not to alien without the consent of the Lessor ; the Lessee makes his Executor , and deviseth this to him ; the Executor enters generally , the Testator not being indebted to any ; this is a Forfeiture , 1. Rolls Abr. 429. Damp● and Symons .

Not to continue a Suit .

A Condition that he shall not continue such a Suit . If he continue it by an Attorny , it s a Breach ; alit . if the Attorny enters the Continuance without his privity , Cro. Jac. 525. Gray and Gray .

To convey Land upon Marriage .

THE Condition was , That after Marriage of the Plaintiff , and having a Son by his Wife , that if he conveyed Lands to the 〈◊〉 of ● l. per a●n . in Tail to the Son , to enjoy after the death of the Obligor , that then , &c. the defendant shews the day of the Ma● , and the having of a Son , and that he made 〈…〉 to a Stranger , to the use of himself 〈…〉 after to the use of the Son in Tail ; the Plaintiff replies , quod non feoffavit ; the Bar is ill , for the Infant was not made party to the Conveyance , nor had any Deed to prove his Estate ; but the Plaintiff by the Replication hath admitted the ●ar to be good ; and he may traverse the Feoffment or the Uses , Cro. Eliz. p. 825. Statfield and Somerset .

A Condition , if the Obligor pay 200 l. by the first of December 1634. that then the Surrenderce should reconvey on request ; the Plaintiff alledgeth a Request in 1644. the Defendant demurs : Per Cur. the Surrender being absolute , and in trust only for payment , there being no payment at the day , this Mortgage is irremediable ; Judgment pro Defendente , 3 Keb. 786. Hancocks Case .

To perform a Promise .

A Condition to perform such a Promise made by the Obligor to the Obligee , but it not appearing when the breach of Promise was made , it was Error , Stiles 17. Sanderson and Martin .

Condition to do things belonging to a Trade .

A Condition to make all such Linnen as he should want during his living single ; the Sempstress is not bound to find Linen ; nor a Tailor Materials ; the Intent may guide the Contracts ; contra of a Shoe-maker , Gold-smith , &c. 1 Keble 466. Oates versus Thornel .

Condition to deliver Goods , or pay Value .

A Condition to deliver all the Tackle of a Ship mentioned in an Inventory , under the Hands of four Men , or in default thereof to pay so much Mony to the Plaintiff before such a Feast as the four Men should value the Tackle at ; the Defendant said they did not value the Tackle ; no Plea , for he had election to do two things ; and if he cannot do the one , he is to do the other ; and it is at his peril to procure the Men to value the Tackle , Moor n. 844. More and Morecomb .

A Condition at the end of the Term of a Lease of Lands and Goods , to deliver the said Goods to T. or make him such satisfaction for them as shall be by two indifferent Persons to be elected for review of them , thought fit ; the Defendant pleads , two Persons were not elected ; the Plaintiff replies , two were elected ; the Defendant rejoins , that they were not chosen by consent of both , for the Defendant conse● no● to the election : Per Cur. the election by the Plaintiff is sufficient ; for the word ( indifferent ) shall be referred to the Parties elected , and not to the election of the Parties ; aliter , if it had been by two Persons indifferently to be chosen , 2 Rolls Rep. 86. Talbot and Benson . 5 Rep. Hungates Case .

Condition to reap and carry Corn , &c. over the usual Way .

A Condition to permit and suffer J. S. quietly to reap and carry , &c. without any disturbance or interruption of him ; the Defendant pleads permisit ; the Plaintiff replies , there were some Acres sowen with Rye , and shews the certainty ; and coming to reap he prohibited him , saying these words , Moneo & prohibeo te quod neque metes ibid. neque abcarriabis , &c. this disturbance is a Breach , 1 Anderson n. 188. fol. 137. Bur and Higs .

Condition to give an Account .

A Condition for a sub-Collector of the Subsidy , to give a sufficient account in the Exchequer of all such Sums he had received , and to discharge and save harmless the Plaintiff of these Receipts against the Queen , and to procure to the Plaintiff a sufficient Acquittance or Discharge out of the Exchequer , as in the like Case is used , that then , &c. the Defendant pleads , he had accounted , &c. and had discharged and saved harmless the Plaintiff , &c. and had procured Acquittance ; the Plaintiff demur● , for he pleads in the affirm act●e he had discharged , and shews not how . 〈◊〉 ( This being a multiplicity of things , if the general pleading be not good , Cro. El. p. 253. Act● and Hill .

A Condition to give account of all Monies gathered by vertue of a Brie● &c. the Defendant pleads , he gave account of all such Monies ; ill Plea ; he ought to specifie what he had received , or else to say he had received nothing , 1 Keb. 760. Woodcot versus Cole .

A Condition to give a just and true account , ( being a B●s Clark ; ) the Defendant pleads performance , the Plaintiff replies , by receipt of 30 l. the Defendant rejoins , it was stollen out of the Plaintiffs Count house ; the Plaintiff demurs ; the Robbery is a good Bar , 2 Keble 761 , 779 , 830. Vere and Smith .

A Condition was , to render a full account to the Plaintiff of all such Sums of Mony and Goods which were due and owing to W. N. at the time of his death , which shall any ways come to the hands of the Defendant , and shall upon such account , within the space of one Week , when required , make an equal dividend of all such Sums of Mony and Goods , and pay the Plaintiff his proportion of the same ; the Defendant pleads no Goods or Sums of Mony came to his hands . Et hoc paratus , &c. the Plaintiff replies , a Silver Bowl belonging to the said W. N. at his death came to the Defendants hands such a day and place . Et hoc paratus est verificare ; the Defendant demurs : Per Cur. the Replication is ill , for the Plaintiff hath not shewed a Breach ; for he ought to sha●e the Defendant had 〈◊〉 made a dividend , or paid the proportion 1 Sander● 100. Heyma● and Gerrard .

Conditions concerning Wills and Legaci● .

A Condition to suffer his Wife to make her Will , vide antea .

A Condition to observe , perform , fullfil and keep the Will of M. D. in all Points and Articles , according to the true intent and meaning thereof , that then , &c. and D. M. by his Will bequeathed to the Poor of such a Town 10 l. and to J. S. 3 l. The Defendant pleads he had paid the 10 l. to the Poor , and as to the 33 l. he is , and always was ready to pay the same to the said J. S. if he had demanded it ; a good Plea ; for this Obligation ( the Condition of which being general to perform the Will ) hath not altered the nature of the payment of the Legacy ; but the same remains payable in such manner as before upon request , 1 Leon. p. 17. Fringe and Lewis .

A Condition to find J. S. till he come to the Age of 21 years , sufficient Meat , Drink and Apparel ; he pleads , he had found sufficient Meat , Drink and Apparel all the time at W. it s good ▪ though he alledge it generally ; and Issue was taken upon the Apparel ; for he durst not take Issue upon all the things for the doubleness , 12 H. 7.14 .

A Condition to have free ingress , egress and regress ; he pleads , he had ingress , ●egress and regress , and saith not ( frank ) male Bar , Latch . 47. Climson and Pool .

A Condition to have all the Debts , and that the Defendant should not release any in a certain Schedule mentioned ; the Defendant pleads performance generally , but doth not set forth the Schedule ; he should have shewed what were the Debts mentioned , and then have averred performance de omnibus & singulis , & quod non relax●vit . Qu. 1 Keble 680. Barcroft and Doughty .

A Condition , If the Defendant should make composition with one E. for Lands , &c. then he should pay the Plaintiff 30 l. The Defendant pleads , he made no composition ; the Plaintiff replies , that the said E. did grant unto the Defendant a Rent-charge of 5 Marks in Fee , in satisfaction of his Title , &c. which the Defendant did accept , &c. and so he made composition ; the Defendant protestando E. non concessit , &c. pro placito , &c. that the Defendant did not accept it in satisfaction , &c. a good Plea ; it s no composition without consent , which depends upon the acceptance , Hob. p. 178. Earle and Tuck .

A. bound to stand to , and observe such order and decree as the Kings Counsel of the Court of Requests should make , and that the Defendant did not observe it ; the Defendant pleads , that the King and his Councel did not make the Decree ; no Plea , Marsh Rep. 78. Smithson and Simpson .

Expositions and Constructions of a Condition .

I shall now shew how Conditions are to be expounded and construed by some special Rules and Cases , and what shall be intended a good performance , Et vide supra sparsim sub multis titulis .

Sometimes Conditions must be performed according to the very Words and Circumstances .

A Condition to stand to the Award of J. S. so as the said Award be made in Writing indented under his Hand and Seal ; the Award shall not bind if it be not indented , though it be under Hand and Seal , 1 Rolls Abr. 409. Holmes and Ho● .

Vid , infra plus tit. Pleadings , Where a Man is to plead according to the express Words of the Condition .

If the Condition be performed in substance it is good , though it differ in words .

Where one is bound to deliver the Testament of the Testator , if he pleads he hath delivered Literas Testamentarias , it is good , 7 E. 4.3 .

When the Condition is to make a Feoffment , Lease and Release is a good performance , 17 E. ● . 3 . Though this be a collateral Condition , yet it is well performed , for it amount in Law to a Feoffement , Co. Lit. 207. a.

If the Covenant be to grant the Reversion of the Tenant for Life or Years , and he enters upon the Lessee and makes a Feoffment , and the Lessee re-enters ; the Condition is performed , for the Effect is performed , 1 Rolls Abr. 426.

The Condition is to give Licence to the Obligee to carry Trees , &c. and he gives him Licence , the Condition is performed , though a Stranger , who has Right , disturbs him , for this extends but to the person of the Obligor by these words , 18 E. 4. 20. b. Aliter , if the words had been , he shall have Licence .

But it must be performed in substance exactly and not in shew ; for the performance of a Condition ought to be true , full and effectual according to Goodal's Case , 10 Rep. And not illusory , Lit. Rep. 130. Brockhams Case .

A Condition is to retract such a Suit , a Discontinuance of this is no performance , because it differs in substance ; for a Retraxit is a Bar in another Action , and so is not a Discontinuance , 20 E. 4.8 . Aliter in Case of an Award , as if it be awarded he shall withdraw his Suit ; Discontinuance is a good performance of the Award , for the intent of the Arbitrator was not that he should make a legal Retraxit , but prosecute the Suit no farther , 21 E. 4.38 .

Improper words shall not vitiate a Condition ; words , by which the intention of the parties may appear , are sufficient to make the Condition of a Bond.

A Condition to stand to an Award , ita quod the Award be made on or before , &c. but if the Arbitrators shall not agree upon the Award , that then they shall choose and elect an indifferent Man , and they shall stand to his final end , &c. Per Cur. the Condition is good enough though not so properly expressed . And that the Defendant had forfeited his Obligation for Non-performance of the Award of the Umpire ; and though such construction will prejudice the Defendant ( and Conditions being for the benefit of the Defendant shall be construed favourably ) yet the Law may not be altered .

But no intention of the parties shall be construed contrary to the express words 39 H. 6.10 . a. The Condition was that if the Defendant do not pay so much Mony , the Obligation shall be void , it was naught , though the intention was he should pay the Mony , 1 Sanders 66. B●er and Wigg .

The Condition was to appear , &c. and the Conclusion was , then the Condition of this Obligation shall be void , and so no words to make the Obligation void ; but per Cur. It is a good Condition , though these words ●id been omitted , 2 Sanders p. 78. Maleverer and Hawksby .

Conditions construed according to Intent .

NO intention of the parties shall construe ●e contrary to the express w●ds , Vid. a●a , 9 H. 7.20.17.22 .

Conditions ought to be construed according to the intent of the parties , if it may constare , and Conditions of Obligations are not broken unless the intent be broken .

A Condition to appear such a day in such a Term , and the Obligo● appears at a day in the same Term before the day mentioned in the Condition , at the Suit of another Man , which is 〈◊〉 appearance in Law for all Suits which shall be commenced against him the same Term , yet because this is but an appearance by fiction in Law and not an actual appearance at this day , the Condition is broken ; for peradventure had he appeared actually , special Bail might have been required , 1 Ro● Abr. 426. Sir Richard Bullers Case .

If the Lessee of an House covenant not to lease the Shop , Yard or other things pertaining to the House , to one that sells Coals ; and after he lets all the House to one that sells Coals , he had broken the Condition , for he had broken the intent , 1 Rolls Abridg. 427. Bonner and Langley .

A Condition that the Lessee shall not do any wast , and the Lesse suffers the House to fall for want of covering and repairing , though this is not a Feasance , but only a permission ; yet the Condition is broken , 1 Rolls Abr. 428. Qu.

The Condition of the Obligation was , if the said R. ● . shall not at any time or times be aiding or assisting to T. E in any Actions , Suits , Vexations , &c. The Plaintiff assigns a Breach , that before the Obligation he brought Trespass against the said T. E. and R. T. and that he had Judgment against both and that after the making the Obligation T. E. and R. T. brought Error . Per Cur. it is no Breach for it is not the intent no● reason he should be barred to defend himself by joyning with T. E. against the unjust proceedings of the Plaintiff . And so if after Verdict the Plaintiff had released and yet took Judgment by Execution , they two might have joyned in Audits Que●el , Hobart p. 30● , 1 Rolls Abr. 429. Lamb and Tompson . This is not properly 〈◊〉 Action , but a Suit to discharge him of a ●o●tio Action wherein they must joy ▪

A Condition if the Plaintiff might quietly take and enjoy Woods sold ; and if the ground , where upon it groweth , be four Miles distant from Rye , &c. then , &c. The Defendant pleads , the Plaintiff had quietly , &c. and that the said Land by the next high and usual way for Carriages is 4000 Paces from the Town of Rye . Per Cur. the intent was that the Plaintiff by selling that Wood should not inour the danger of the Statute of 23 Eliz. c. 4. And it ought to be pleaded that it is every way distant four Miles from Rye , and not not by usual ways , and the four Miles by 4000 Paces is well , 2 Leon. p. 113. Ming● and Barl.

The Condition was , that if the within bounden J. L. shall happen to dye without Issue of his Body lawfully to be begotten , that then if the said J. L. by his last Will , or otherwise in Writing shall in his Life time lawfully assure , &c. The Condition being made in benefit of the Obligor shall have Construction according to the intendment of the parties to be collected out of the words of the Condition , and the intention of the parties was , that a Conveyance should be made by the Obligor in his Life time by his Will or otherwise of the Lands , Jones Rep. p. 180. Eaton and Laughter .

The Condition , if the Obligor pay so much then the Obligation to be void , or otherwise it shall be lawful for the Obligee quietly to enjoy such Lands . The Defendant pleads quiet enjoyment . The Plaintiff demurs ; for that the Condition depends on the Payment or Non-payment , and that concerning the Land is idle : Per Cur. Conditions are to be taken according to the intent of the parties , if it may constare ; but as these words , then to be void , are placed here , it cannot refer but to that which precedes , and not to the Land which ensues . Regula , Words in the beginning or end of things refer to all , but those in the middle refer ad media tantum as Lease for Life Remainder for Life rendring Rent , this goes to both Estates ; but Lease for Life rendring Rent , Remainder for Life , aliter Siderfin p. 312. Ferres and Newton .

In the Condition it was recited , that the Sheriff had constituted the Defendant Bailiff of an Hundred within the County . If therefore the Defendant shall duly execute all Warrants to him directed , then , &c. Warrants shall only be intended Warrants directed to him as Bayliff o● the Hundred , Horton and Day cited 2 Sanders 414. And such only as are to be executed within the Hundred . And the Plaintiff must shew the thing to be done was within the Hundred , Allen p. 10. S●ang●on and Day , mesme Case .

A Condition , that his eldest Son shall marry the Daughter of the Obligee , and the Son lye , the second Son shall not marry her , that was not the intent , 27 H. 4.14 .

When a Man is bound to do or permit a thing , he ought to do or permit all which depends upon this in the performance of the thing , 11 H. 4. 25. b. 1 Rolls Abr. 422. Collateral things must be done or permitted ; a Covenant to levy a Fine , it shall be at his Costs who levies it . A Man is bound to carry my Corn , it is no Plea for him to say , he had no Cart , for he is bound by implication to provide a Cart and all other necessaries for the Carriage : So to mow my Grass , he must find Instruments ; to cover my Hall , he is bound to find necessary Stuff , 16 H. 7.9 .

A Condition , that J. S. shall have ingress into his House ; he ought to have a common entrance at the usual Door ; and shall not be put to enter in by a hole backward or by the Chimny , nor may the other make a Ditch before the Door . If a Man hath Right to a Chamber , he must not be barred of his ingress ; and yet the Doors ought not to stand open at Midnight . If I am bound to suffer J. S. to have a Way over my Land , if I lock the Gates I have broken the Condition , Latch p. 47. Climson and Pool .

A Condition is to be performed as near as may be .

The Condition is that J. S. and R. G. shall come in their proper persons before such a Feast to London , and to bring two Sureties to be bound with them to the Plaintiff in the Suit contained in the Obligation , then , &c. J. S. dyes , yet R. G. must do this ; and although 〈◊〉 Condition be not performed in the whole , yet 〈◊〉 he may perform this by any possibility , he must do it , 15 H. 7.2 . 4 H. 7.3 .

A Condition that he or his Heir shall surrender , &c. before such a day to the use of the Plaintiffs Executors , his Heirs and Assigns , &c. The Defendant pleads , the 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. 7● . 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 ton● & 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 exe●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 deb●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 a●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 , H●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 Mal● 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 demu● 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 between him and his Parliament being recited . The Defendant pleads King Charles the I. was Beheaded , and never Restored , &c. pro Defendente . This appears to be personally meant of the King , and not in his politick capacity . 1 Keb. 820. 2 Keb. 215. Grinsells Case .

[ Either ] So as the Award shall be delivered to either of them , ( either ) shall be expounded ( every ) for each ought to have a part . Cro. Eliz. 448. Parker and Parker .

Debt upon an Obligation , dated 1. of February , 25. Eliz. The Defendant pleads a Release , bearing date after making of the Bond , of all dues , demands whatsoever , except an Award made between the Plaintiff and one G. W. with R. K. deceased ; and one Obligation of 500 l. for performance of the said Award , bearing date 29 April , 25 Eliz. In the Replication the Plaintiff shewed the special matter , that the Award was made the 29th of April , and the Bond was made the 1 of February . Per Cur. ( bearing date ) shall have reference to the Award and not to the Bond. 1 Brownl . Rep. p. 54. Gage and Gilbert .

The Condition was to enjoy a Ship with all the Furniture , without disturbance : The Case was , after Sale of the said Ship , a Stranger sues the Plaintiff for Mony due for certain Ballast bought by the Defendant , and put into the Ship before the sale of the Ship . Per Cur. Ballast is no Furniture of a Ship , but Guns are . 1 Leon. Case 59. fo. 46. Kinters Case .

[ Miles ] If such a place be 4 Miles from Rye , it shall be construed 4000 Paces . Cro. Eliz. 412. Minge and Earl .

If I am bound to you , that J. S. ( who is in truth an Infant ) shall levy a Fine before such a day , which is done accordingly , and after the same is reversed by Error , ye● notwithstanding the Condition is performed . 1 Leon. p. ●4 . in Leigh● Case Obiter .

A Condition to deliver 18 Barrels of Ale on Contract , the intent is the Vendor shall have the Barrels again , when he Ale is expended . 27. H. 8.27 .

I am bound to given a Shoulder of every third Deer which I kill in my Park , yet I may dispark it ; for this comes not within the Rule , That a Man shall not by his own Act defeat or frustrate his own grant , but it is to use the liberty I reserved to my self upon my grant , standing with the grant . Ho● . p ▪ 41. in Coopers Case .

I shall now speak something of Statutes and Recognisances , for that they are Obligations on Record ; but I intend not to handle the Learning at large as to Executions thereon and what is liable thereunto ; for that is more properly to be treated of under another Title : But I shall here speak of the Nature of them , the Form of them , and Manner and Effect of the Acknowledgment , and something of the Process ; and they concern Subject and Subject , or the King and a Subject ; of the first are ,

Statutes and Recognizances .

Statutes are of two sorts . Statutes Merchant , of the Staple .

Statute-Merchant is acknowledged before Persons authorised , sealed with the Seal of the Debtor and of the King , which is of two pieces , the greater is kept by the Mayor , &c. and the lesser by the Clark ; this is by Stat. de Mercatoribus , 13 Ed. 1.4 . Acton Bornel , the form of it vil● post . This is become now a Common Assurance .

Statute-Staple is founded on 27 Ed. 3.2 . this is acknowledged before the Major of the Staple ; but now by Stat. 23 H. 6. a Statute-Staple improperly so called , may be acknowledged before one of the Chief Justices , before the Major of the Staple at Westminster , or the Recorder of London : It is sealed with three Seals , the Seals of the Conusor , the King , and the Person before whom it s taken ; the form vide post .

They are both of one effect as to execution .

All Bonds concerning the King shall be of the nature of Statute-Staples ; and so for first Fruits , 33 H. 8.39 . 26 H. 8.3 .

The manner of making .

Let there be a certain day of payment limited in it . And yet one Davies acknowledged a Statute-Merchant to J. M. The Statute was formal in all Points , saving that no day of payment was limited in the said Statute : Upon demurrer to And. Quere● , the Statute was adjudged to be good ; when it appears by the Statute when the Mony is to be p● , it s well enough , as it doth here , ( viz. ) presently ; there ought to be a time certain when the Mony shall be paid , either an actual time , or a legal time ; if it be to be paid at Michaelmas after J. S. shall come to Pauls ; it s not good , because it may not appear to the Major judicially when to make Execution , Winch , 82. Hichford and Machin , solemnly argued by all the Judges , the same Case in Jones Rep. 52. Bridgmans Rep. 16 , 17 , 18.

The Statute-Staple is to be sealed with the Seal of the Conusor , and the Seal of the King appointed for that purpose , and with the Seal of the Chief Justice , Mayor and Recorder before whom it is acknowledged ; and they before whom it is taken do subscribe their Names to it .

If a Statute-Merchant be not sealed with the Seal of the Debtor , and there be not a Seal of two pieces annexed to it ; this is no good Statute , neither can it take effect as a Statute , 35 El. Hollingworth and As●l .

An Querela to avoid a Statute Merchant taken before the Mayor of N. furnishing in his Writ two Causes to avoid the Statute . 1. The Mayor ●e had not any such Authority to take the Statute . 2. Quod scriptum recognit . &c. non fuit sigillat . cum sigillo Reginae de duabus peciis provis . pro sigillatione Statut. Mercator . and upon this Writ the Plaintiff counts and alledgeth these two matters : Per Cur. the Count is double and vitious ; for though a Writ of Aud● Querela may comprehend divers Causes for the avoidance of a Statute ; yet the Count ought to comprehend but one Cause ; and either of these Causes alledged was sufficient to avoid the Statute ; and an Audita Querela lieth in such Case , and he shall not be put to sue a Writ of Error to avoid it , Cro. El. 809. Forrest and Ballard ; but he cannot assign want of one of these Seals for Error , if he had admitted the same in the Common Pleas , Moor n. 738 , Worsley and Charnock .

Those that are meer Recognizances ( as before ) a Master in Chancery , &c. need not be sealed , but they must be enrolled , Cro. El. 355. 1 Leon. 228. Ascue and Fotiam .

Issue is , whether there are two Seals ; it s well tryed by a Jury , and not by the Mayors Certificate . Statutes and Recognizances must be enrolled , and being inrolled it binds Persons and Lands as a Record from the day of the entry of it ; upon the Roll it s a Recognizance from the first acknowlegdment , and binds as a Record from that time , 2 Rolls Rep. 382. Allen p. 12. Stiles p. 9.

And all Statutes-Merchant and Staple are to be brought to the Clark of the Recognizances within four months , and to be inrolled within six months , otherwise they will be void as to Purc●sors , 27 Eliz. c. 4.

But now by the Statute of Frauds and Perjuries , the day of the month , and year of the inrolment of the Recognizances , shall be set down in the Margent of the Roll , where the said Recognizances are acknowledged ; and no Recognizance shall bind any Lands , &c. in the hands of any Purchasor , bona fide , and for valuable consideration , but from the time of such inrolment , 29 Car. 2.1 .

By whom acknowledged , and how .

BAron and Feme enter into a Statute or Recognizance ; this binds not the Wife , albeit she survives her Husband , 10 Rep. 43. 2 Inst. 673.

If an Infant acknowledge a Statute or Recognizance , its voidable by Audita Querela during his minority ; but he cannot avoid it after his full age , neither by Audita Querela nor Writ of Error , because of Infancy only , Moor n. 206. Yelv. 88. Randale and Wale . Co. 2 Inst. 673. Dyer 132. and the way to avoid it must be by inspection , which cannot be after his full age , 1 Bulst. 187 , 188.

Infant acknowledgeth a Statute , and was taken in Execution , and at full Age he brought Audita Querela to avoid the Execution : Per Cur. the Audita Querela shall abate ; he shall not avoid it , it being matter of Record ; but if he will avoid it , it must be during his minority , Moor n. 196. Worsleys Case . 1 Anderson 25. Noy p. 16.

A Recognizance acknowledged by an Infant , and he was inspected , and adjudged to be within Age , and thereupon had a Scire Fac. against the Conusee , and upon a ni●hil returned , it was adjudged the Recognizance should be void , and he be discharged ; whereupon Error was brought , for that there ought to be two nichils returned , for two nichils amount to a Garnishment , and without Garnishment and Oyer of the Party to whom the Recognizance was made , it ought not to be adjudged to be cancelled ; and for this cause it was reversed . And now because the Conusor is at present of full Age , and cannot have a new Writ of Audita Querela to be inspected , it was moved , that he may have a new Writ comprehending the first Inspection , and the Judgment thereupon , and shew that the first Judgment was only reversed for Error in the Proceedings , and upon all the matter to be relieved , and so it was done , Cro. Jac. 59. Yelv. p. 88. Randale and Wale .

A Recognizance within the Statute 23 H. 8. c. 6. cannot be good except the Seal of the Party be to it .

Before whom taken .

THey may not be acknowledged before any other Persons but such as are appointed by the Statutes .

Other Recognizances ( besides those on 23 H. 8. ) may not be acknowledged before any , but such as have Power ex Officio ; as the Judges of the Courts at Westminster , or by special Commission to take them , Dyer 220.

Out of the Commonalty of London there shall be two Merchants chosen and sworn , and before one or both of these Merchants the Recognizances may be taken , Stat 14 Ed. 3.11 . 8 R. 2.4 .

The Recognizance upon the 23 H. 8. c. 6. in nature of a Statute-Staple , is always to be acknowledged before the Chief Justice of the Kings Bench or Common Pleas ( in the Term time ) or in their absence out of Term , before the Mayor of the Staple at Westminister , and the Recorder of London .

All the Judges may out of Term take Recognizances in any part of England : and if it be taken before the Chief Justice of the Common Pleas , at Serjeants-Inn in Fleet-street , out of Term , its good , Hob. 195.

Every Court of Record , of any note , hath this Authority incident to it , to take Recognizances for all things which concern the Jurisdiction of the Court , and of all things which arise of or by reason of the Matters there depending ; so it is taken before the Mayor and Aldermen of London , 1 Leon. 384. Holinshead and Kings Case . The Custom of London to take Recognizances , and the Form of the Declaration , Cro. El. p. 186. Chamberlein and Thorp , 1 Leon. 130 , 131.

Where Actions to be brought on Statutes and Recognizances .

H. Brought Debt against W. and declared upon a Recognizance taken before Chief Justice Hobart at Serjeants-Inn in Fleet-street , London , out of Term , and laid his Action in London , whereupon the Defendant demurred ; The Question was , whether the Action ought to be brought in Middlesex where the Recognizance is recorded , or in London where it was acknowledged . Now in this Case the inrolment of the Record , that the Recognizance was taken before Hobert at the time and place aforesaid , by which it was a Record ( ipso facto ) then and there ; and the inrolment is but a confirmation of the same Record , and makes no change ; but because they both concur to the making it a perfect Record ; the Action may be brought in either County ; but by Hobert , in London as the more worthy part of the Act ; and a Scire fac . upon such a Recognizance shall be directed to the Sheriff of London , and not of Middlesex : but if the entry of the Record were general , that the Recognizance was taken before Hobert , it shall be understood in Court , and then the Action shall be brought in Middlesex , Hob. Rep. p. 195. Hall and Winkfield , 2 Rolls Rep. 182.

1 Brownl . p. 69. Allen Rep. 12. Andrews and Harborn . In the Common Pleas its good both ways ; in B. R. it ought to be where the Recognizance is taken , Stiles p. 9. Andrews Case .

Debt brought in the Common Bench on a Recognizance in London , Cro. Eliz. Wilfords Case .

Statute Staple suable in the Kings Bench or Common Pleas , as well as in Chancery , Cro. El. p. 208. Clavel and Mallory . Audita Querela in the Common Bench , for that the Conusor was within Age at the time of the acknowledgment , and well brought there , mesme Case , 1 Leon. 303. so in B. R. and the entry of the Inspection , vide Cro. El. 208.

A Recognizance taken by the Custom of London makes the Debt local , vide 1 Leon. 130 , 131 , 284.

Scire Facias .

SCire Facias in the Kings Bench , on a Recognizance , may not be general without shewing the time of the Recognizance , and other particulars , for it is but a Pocket Record , therefore it is to shew what date it is , for otherwise the Party may not know what Matter to plead , and perhaps it is released or cancelled ; and a Man may not plead a Release after nul tiel Record . Qu. 2 Siderfin p. 156 , 159. B. R. Alston and Body .

He that sueth forth a Scire fac . in Chancery , to defeat an Execution on a Statute-Staple , shall find Surety to prosecute with effect .

If the Statute hath but one Seal , it shall take effect , as an Obligation , Moor n. 520. 2 Rolls Abr. 149. Aiscue and Hollingsworth . Cro. El. p. 494. contra .

A Recognizance is entire , and being discharged in part , is discharged in the whole ; but if the defeasance be to be paid in several Sums , there an Acquittance of part , is not a Release of the residue , 1 Anderson p. 235 Case . Cro. El. p. 182. Cook versus Bacon .

Sir G. Grisly now Baronet was bound in a Statute-Merchant before the Mayor of Coventry to D. D. upon a Certificate made by the Mayor into Chancery , took out a Capias against him by the name of G. Grisly Esq and Writs of extent thereon ; this the Court would not amend , but advised to sue a new Writ out of Chancer● upon the first Certificate , scil. Capias Corpus G. G. Mil. & Baronet . qui per nomen G. G. Armig. ●ecognovit , &c. Hobert 129. Sir George Grisleys Case .

If three are bound to me in a Statute-Merchant , and every of them by themselves , & quemlibet 〈◊〉 . per se , I may sue Execution against one of them only , or against all at my pleasure .

Declaration .

DEclaration is , That the Defendant per scriptum suum Obligatorium , &c. concessit se teneri , &c. solvend . cum requisitus esset . The Defendant demands Oyer of the Obligatation which is of a Statute-Merchant , &c. salvend . at the Feast of , &c. It s an incurable Fault , Cro. Jac. op. 316. Fox and Inkes . A Statute for performance of Covenants , which perhaps shall never be broken , is no Plea in Bar by Administrator ; but a Statute for payment of Mony is allowable before Debts on Bond , and so it differs from Harrisons Case , 5 Rep.

It s no good Plea to say that such a one was bound in a Recognizance , and not to say per scriptum Obligatorium ; and to conclude it was done secundum formam Statut. doth not help it ; but in a Verdict it was agreed to be good , Marches Rep. p. 76. Harris and Garret , 4 Rep. 65. Fulwoods Case . If the Jury find a Recognizance before the Mayor and Recorder , though they say not per script . Obligat . or secundum formam Statuti , its good enough .

The Defendant pleaded to Debt on two Bonds , that the Intestate was indebted to the Plaintiff in a Statute-Merchant of 250 l. which Statute is in force , not cancelled nor annulled , and that she hath not above 40 s. assets ultra ; the Plaintiff replies , that the Statute is burnt with Fire ; Judgment pro Quer. on demurrer ; for by the demurrer the Defendant hath confest the burning of the Statute , and then it can never rise up ; for the Statute 23 H. 8. c. 6. concerning Recognizances in the nature of a Statute-Staple , refers to the Statute-Staple , that the like Execution shall be had and made , &c. and the Statute-Staple refers to the Statute-Merchant , and that to the Statute of Acton Burnel , 13 Ed. 1. which provides , that if it be found by the Roll , and by the Bill , that the Debt was acknowledged , and that the day of payment is expired , that then , &c. but if the Statute be burnt , it cannot appear that the day of payment is expired ; and consequently there can be no Execution . If the Conusee will take his Action upon it , he must say hic in Curia prolat. 15 H. 7.16 . Mod. Rep. 186. Buckly and Haward .

If One acknowledges a Statute , and after a Judgment is had against the Conusor : now against the Conusor the Statute shall be preferred , but not against an Executor , 1 Brownl. 37.

If two Men claim the same Land , one by Extent upon a Statute , the other by a Judgment the same Term ; he who claims by the Judgment shall be first satisfied , Yelv. 224.

A Statute-Merchant removed by Mittimus out of Chancery in Com. p. and Execution awarded there super tenorem Recordi . A Writ of Error lies in B. R. though the Original be in Chancery , and the Execution in C. B. More n. 738. Worsley and Charneck .

In what Courts taken and sued .

REcognisance taken in the Court of the Admiralty is void , Noy 24. Record and Johnson .

How Recognisances shall be taken in London , Stat. 14. E. 3.111 . 8 R. 2.4 , 5.5 H. 4.12 .

If a Statute-Merchant be not paid at the day , the Mayor &c. shall cause the Debtor to be imprisoned ( if he be Lay ) and in their power , there to remain till he agree the Debt . If the Debtor cannot be found , they shall send the Recognisance under the Kings Seal into Chancery , from whence shall issue Writ to the Sheriff of the County where the Debtor is to take his Body ; and if he do not satisfie the Debt within a Quarter of a Year , all his Lands and Goods shall be delivered upon extent ; but his Body shall be still in Prison , and he shall be allowed Bread and Water . And the Sheriff shall certifie the Justices of one of the Benches , how he hath performed the Service i. e. return the Writ . If the Debtor dye , the Body of his Heir shall not be taken .

If a Statute be rightly entred into as to the substantial Form , it is sufficient , though there be variance in the circumstantial Form , Bendl. 144 , 145.

All Statutes Merchant and of the Staple shall within six Months after the acknowledgment thereof , be entred in the Office of the Clark of the Recognisances ; and it ought to be brought within four Months to enter a true Copy , or else it shall be void against Purchasers bona fide , and it must be enrolled within six Month , 27 Eliz. c. 4.

A Statute is to be shewed in Court of B. R. or C. B. when it s to be extended , or on Return of Cepi Corpus , else the party will be discharged , tho it be lost , 37 H. 6.6 , 7.

On a Statute Merchant the Conisee may bring Debt on the Stat. and wave all other proceedings ; or he may have Execution after this manner : He must bring his Statute to the Mayor , &c. and they are to imprison him ; if he cannot be found , they are to certifie the Record in Chancery , and if they refuse to do it , they may be compelled thereto by Certiorari ; and upon a nihil returned upon a Testatum est , he may have Process in another County . Aliter of Goods , and he shall have a Cap. directed to the Sheriff , and this to be returned in the C. B. or B. R. if he be returned non est inventus , his Lands shall be extended .

Upon a Statute-Staple , or upon Recognisance founded on 23 H. 8. c. 6. the Body , Lands and Goods may be taken together ; and this Writ on these Statutes are returnable in Chancery , and not in B. R. or B. C. as a Statute-Merchant is .

Recognisances in Chancery , Vid. supra Statutes .

CApias lies not on a Recognisance in Chancery , but only a Scire Fac. per Gawdy , Yelverton and Popham , Yelv. 42. Weaver and Clifford . So Cro. Eliz. p. 576. Conier's Case , but in Ognel and Pastons Case , Cro. Eliz. p. 164. adjudged contra , and that it lies after a Scire Fac. and two Nihils returned . And per Windham in Dormers Case , 1 Keb. 456. a Capias lies on a Recognisance in Chancery , the Presidents are so ; but in Grimston and Wades Case , 3 Keb. 221 , 229. The Court conceived no Capias lies on a Recognisance in Chancery .

Debt on a Recognisance is brought in the Petty-Bag Office , the Court of B. R. upon motion would not alter the Plea , for if the Issue be joyned in the Petty-Bag , you must try it , Stiles p. 412. Turner and Trapes .

A Verdict on a Scire Fac. on a Recognisance in Chancery , and Judgment pro Grimston . Grimston brought a Latitat in the Kings Bench on the Recognisance . The Defendant put in Bail , and prayed to be discharged on common Bail , because there being a Verdict on Scire Fac. no Latitat can be sued . Per Hales , no Latitat can be sued hanging the Scire Fac. for a Scire Fac. is an Action and may be so pleaded to the Debt to be depending . But after Judgment entred Debt lieth thereon , or upon the Recognisance alone , and the Rule for special Bail was discharged , 3 Keb. 221 , 229. Grimston and Wade , Vid. Lit. Rep. p. 89 , 90. That a Scire Fac. is not an Action , but an Execution , Arguendo in Melvin and Reeves Case .

If a Man be bound in a Recognisance to pay 100 l. at five several days , presently after the first day of payment he shall have Execution upon the Recognisance for that Sum , and shall not tarry till the last be past , for that it is in the Nature of several Judgments , Co. Lit. fo. 292. b. Aliter of a Bond.

Meer Recognisances are not sealed , but enrolled they must be .

In a Recognisance in Chancery the Process is Scire Fac. and this being returned with a Nihil , another Scire Fac. which being so returned also , he shall have a Judgment , and may have a Levar . ( but no Capias ) 8 Rep. 141.

The Transcript of a Recognisance in Chancery came into the B. R. and was not allowed there to have a Scire Fac. on it , 5 Eliz. Dyer 217. So in C. B. the Goods only which he had at the time of the Execution awarded , will be subject to Execution .

Upon a Recognisance in Chancery Execution shall be of the Moiety of the Lands .

The Execution by this , is by Scire Fac.

Bail . Recognizance . The Nature of it .

THE Recognisance is conditional ( that is to say ) to render his Body to Prison if he were condemned , or to pay the Condemnation , Jones 138. The end of the Bail is not only to bring the Body , but that he come subject to the Court according to the meaning of the Bail ; ( and there-Bail cannot render the Body of the Defendant after Writ of Error brought by him , Qu. ) for the Entry in the discharge of the Bail must be , that the Defendant reddidit se to the Court to be in Execution , if the Plaintiff will , which cannot be so in that Case , Hob. p. 116. Wicksteads Case .

The Bail in the Common Bench is always in a Sum certain according to the debt or damages in the Writ ; but in the Kings Bench there is not any Sum mentioned , but to pay whatever the Principal shall lose , 1 Keb. 18. Cro. Jac. 645. Sir John Apesley's Case .

The Words of the Bail are conditional , scilicet si contingeret praedictum Defendentem debita & damna ill praefat. Querenti minime solvere , aut se prisonae non reddere , &c. 5 Rep. Hoe and Marshals Case 70. b.

Special Bail by Recognisance was ( as the manner is ) that F. & B. concesserunt & uterque eorum concessit , that the said debt and damages shall be levied upon them , if the Defendant do not pay , aut se prisonae Marr. doth not render , Siderfin p. 339. Gee's Case .

The Recognisance in the disjunctive , to render the Body to Prison or to pay , &c. By death the one becomes impossible , and so shall excuse the other , Jones p. 29. Winch p. 61. Sparrow and Sowgate .

Recognisance to have the Plaintiff in Chancery ad standum juri in hac parte , and that the Plaintiff shall prosecute with Effect , though he doth not shew the Plaintiff did not appear in Chancery at the day ( for the Condition here is parcel of the Recognisance ) which is one of the Conditions ; for the words in the beginning include all , as well the Course of the Prosecution as the Effect of the Suit , Yelv. p. 59. Cro. Jac. 69. Barnes and Worlych .

Form del Mainprise en Det , Vid. Rast. Entr. 177. b.

Process . Scire Fac.

AFter Judgment a Cap. is awarded against the Defendant , and upon a Non est inventus returned , they awarded a Scire Fac. against the Bail . Capias must be delivered to the Sheriff before a Testatum , 2 Keb. 424. Robinson's Case .

A Latitat is taken against two , one is taken and puts in Bail in Michaelmas Term , and afterwards the other is taken , and he puts in Bail in Hill . Term ; it was prayed that the Bail of Michaelmas Term might be taken off the Filer of that Term and put upon the File of Hill . Term , for otherwise the Plaintiff cannot proceed against them joyntly upon Bail put in in several Terms , and it was so done , Noy p. 90.

Scire Fac. against the Bail ; the Scire Fac. recited that Judgment was given against the Principal in Debt , but mentions not therein that the Capias was awarded , yet per Cur. it is good ; it may be omitted or recited , Cro. Jac. 97. Justice Williams versus Vaughan .

Per Cur. If one be arrested in this Court and puts in Bail , and after the Plaintiff recovers , and the Defendant renders not himself according to Law in safeguard of his Bail , the Plaintiff may at his Election take Execution either against the Principal or Bail : But if he arrests the Bail , tho he had not full satisfaction , yet he shall never afterwards meddle with the Principal : But if two be Bail , and one is in Execution , yet he may also take the other ; but if the Principal be in Execution , he cannot take the Bail , Cro. Jac. 320. Higgins Case .

When the Plaintiff in the Action hath Judgment , he hath Election to sue a Scire Fac. against the Principal upon the Judgment , or against the Bail and Principal joyntly upon the Recognisance .

Scire Fac. brought against three Bails upon a Recognisance acknowledged by them and the Principal jointly and severally ; and upon Demurrer the Writ was abated , because this being founded upon a Record , the Plaintiff ought to shew forth the variance from the Record , as that one is dead , Allen p. 21. Blackwel and Ashton .

By the Course of the Court a Scire Fac. against the Bail must have seven days between the Teste and the Return ; else all Proceedings after are void , and one cannot be taken out returnable more , and the other within less than seven days , 1 Keb. 182. Gifford and Smith .

Bail in B. R. by John Bennet Esq and the Declaration was on a Recognisance by the Name of John Bennet Gent. and on Nul tiel Record of the Recognisance by J. B. Esq , Per Cur. it is all one Name , and the Court takes no notice of Heraldry here , 1 Keb. 293. Bennet and Dean .

Scire Fac. on a single Recognisance of Bail was excepted to , because returnable at a day certain ; and so agreed by per Cur. to be quasht , and the party left to a new Scire Fac. or to Debt on Recognisance . Where there is a Condition , it may be returned at a day certain , and so may a Scire Fac. to revive a Judgment , 2 Keb. p. 396 , 397. Allen versus the Manucaptors of Cutler .

Debt lies on the Recognisance of Bail , 3 Keb. 707 , 734. Miles and Bateman ; but not before a Cap. and second Scire Fac. returned and filed ; on Judgment in Term Cap. may be at any time on Rule four days after Judgment .

W. recovered against B. in Debt , and B. was brought to the Bar by Habeas Corpus procured by his Bail , and the Plaintiff prayed he might be committed in Execution , and also the Bail , that he might be received in their discharge ; but B. having brought a Writ of Error , it could not be , hanging that , Hob. 116. Wicksteds Case .

The Scire Fac. was to shew cause why Execution si sibi viderit expedire ( not saying ) fieri non debet . Per Cur. it is ill , and it is not amendable , 3 Keb. 190. Mannel and Coltlowe .

After the Return of the second Scire Fac. it is too late to bring the Principal in , and that is the reason that in such case a Writ of Error for the Bail to reverse the Judgment against the Principal .

Debt against the Principal , and Judgment on Nihil dicit , but no Ca. sa . issued against him ; afterwards two Scire Fac. were taken out against the Bail , and two Nihils thereon returned , and on that Judgment given against the Bail : The Judgment is erroneous , but the Bail cannot bring a Writ of Error , causa qua supra ; but he shall have an Audita Querela , Stiles p. 323 , 288. Barcock and Thompson . When the Judgment is grounded upon a Scire Fec . the Bail is remediless , 2 Keb. 51. Reynolds and Duel .

There ought to be a Cap. against the Bail , before he can be charged , and it ought to be shewed that the Capias was returned and filed against the Bail , 3 Bulstr . p. 341. Calf and Bingly .

If the Principal be dead before the Return of the Capias , this must be avoided by an Audita Querela in Judgment against the Bail , 2 Keb. 51. Reynolds and Duel .

The Course of the Kings Bench is , that Default ought to be assigned in the Principal upon the Return of the Capias before the Bail shall be charged ; ( so in Com. Banc. Qu. ) which cannot be if the Principal be dead . If the Principal render his Body , though the Plaintiff refuse to take that , yet that is a discharge of the Bail , Winch p. 61. Sparrow and Sowgate .

How and when the Bail is discharged ; and of the rendring the Principal , and the time of doing it .

THE rendring of the Principal to Prison is no discharge of the Bail till the Bail-piece , which remains with the Secondary , be discharged , &c. 2 Keb. p. 2. Booth and Nortrop .

One may plead reddidit se well enough without averring prout patet , &c. for that is only filed with the Bail-piece entred into at the Judges Chamber , upon which the Secondary writes a reddidit se , and so the party goes to the Marshal into Custody , and thence returns to the Secondary , and he enters a Committimus in exonerationem manucaptorum ; and if this Render be before the Return of the second Scire Fac. on the Bails Recognisance , it may be well enough pleaded , prout patet , &c. and this is the Course of the Court , 2 Keb. p. 237. Anonymus .

Per Rolls , Out of Indulgence to the Bail , it hath been the use of later times , that if the Bail do bring in the Principal before the Return of the second Scire Fac. which was taken out against the Bail , thereupon to discharge the Bail : But anciently it was not so ; but then it was counted too late to bring him in , Stiles p. 134. M. 24 Car. 1. B. R. Quatermans Case .

The manner of Entry upon the yielding of the Body upon the Bail ; and if the party or his Attorny be present , he must make his Election to take him in Execution or refuse him , whereof Entry is to be made . Qu. If he may after take him by Casa . Hob. p. 210. Welby and Canning .

Judgment against a Bail on Scire Fac. which was sued out , and two Nichils returned after the Party had rendred himself in Execution on the first Judgment . Scrogs moved to have the said Judgment set aside : Per Cur. there is cause of an Audita Querela ; but otherwise no remedy . But the Attorny ought not to sue any Scire Fac. against the Bail , after the Bail-piece dischaged , but before , he may , 2 Keb. 475. Goreham and Boxham● .

On affirmance of Judgment against the Principal : Jones prayed the Bail may render the Principal before any Scire Fac. which the Court granted ; and his Render here is a Render below the Recognisance being removed ; and it may be done before any Judge in discharge of the Bail , 2 Keb. 635. Bodam's Case .

Gardner prayed that the Principal may be accepted to tender himself , there being no Capius issued against the Principal , yet a Scire Fac. and two Nichils against the Bail are returned . Sed non allocatur ; this is cause for an Aundita Querela . And were there a Scire Fac. returned , the Defendant may plead it ; but the Bail cannot otherwise be relieved , 2 Keb. 536. Staunton's Case .

Duport recovered Debt against Wildgoose : Upon this a Capias issued out against Wildgoose , and the same returned , and before it was filed a Scire Fac. issued out against the Bail ; the Bail for his discharge did suggest an Action against Wildgoose the Principal , and had his Body in Court ; and being in Court he moved to have Wildgoose delivered in Execution for the Debt of Duport in dischage of himself , in regard that if he should die before next Term , he could not plead this to the Scire Fac. but should be then charged with the Debt , which was granted . Note , that Duport did not intend to pray the Body of Wildgoose in Execution for his Debt , though present in Court , but his purpose was to have had his Surety in Execution for the same ; the Bail perceiving this , for prevention did bring the Body of Wild-goose into Cour , and prayed him to be committed in Execution for the Debt in exonerationem of him which the Court did , 2 Bulstr . p. 352. Duport and Wildgoose .

Capias must first be awarded against the Principal , before Scire Fac. against the Bail ; for the Recognisance is , that the Principal should tender himself , &c. which is intended upon Process awarded against him , Cro. Eliz. 597. Hobs and Tedcastle .

The Mainpernors brought Error , because there was not any Cap. ad satisfac . awarded against the Principal before the Scire Fac. Per Cur. a Writ of Error lies well upon the Statute of 27 Eliz. but being certified upon diminution , that a Ca. sa . had been awarded , the Judgment was affirmed , Cro. Eliz. p. 730. Cokerin's Case .

One was bound by the Chief Justice to appear in B. R. the Court was moved to discharge him of his appearance , because he was before the day arrested and imprisoned at the Suit of another , and it was done , 1 Bulstr. 170.

Scire Fac. against the Bail for Non-appearance of the Principal , and it is not mentioned that Process was awarded against him , but that it was prayed , & ei conceditur , but it is not ideo raecept . est Vicecomiti , &c. as it ought to be , and although he that was Bail doth not afterwards appear , this might be without Process , and so nor good , Cro. Eliz. p. 177. Herd and Burstow .

The Bail cannot render the Principal on the day of the Return of the second Scire Fac. though before the Sheriff hath actually made his Return ; and this is the Pleading of the Render that such a day ante retornum , and after Nul tiel Record pleaded the Bail cannot take advantage of this Render , 1 Keb. 450 , 456. Hooper versus the Manucaptors of Gibbon .

The Bail must render the Principal sitting the Court the day of the Return of the second Scire Fac. So it is on a Declaration by the by , which must be sitting the Court the last day of the Term , 1 Keb. 899. Nicholas and Stokes .

Judgment was given against the Principal , and after a Scire Fac. is brought against the Bail , who appeared and pleaded Nul tiel Record of the Judggiven against the Principal , and on the day given for bringing in the Record , the Principal rendred his Body in discharge of the Bail , Qu. if he might , March Rep. p. 154. pl. 223. The Condition of the Bail is , that they render his Body indefinitely without limiting any time in certain when they shall do it , or pay the condemnation ; and by some , if they plead such a Dilatory Plea as this , they have thereby waved the benefit of bringing in the Body , and by this trick the Plaintiff should lose all his Costs of Suit which he had expended in the Suit against the Bail .

Judgment against the Principal in B. R. upon this Judgment a Writ of Error is brought in the Exchequer-Chamber according to the Statute of 27 H. 8. Hanging this Writ of Error , the Principal reddidit se prisonae in exoneratione of his Bail , the Bail may plead this in their discharge ( the Record of the Bail is a distinct Record of it self ) hanging the Writ of Error , the Bail may bring in the Body of the Principal at any time when he will , but he shall not be prayed in Execution before Judgment be affirmed or disaffirmed : Before the Return of the Scire Fac. against the Bail the Principal renders himself , and hanging the Writ of Error , dies , by this the Bail is discharged , 3 Bulstr. 341. Calf and Bingly , Stiles and Seagar , Hobbs and Doncaster cited there .

A Committitur ( though no Judgment ) must be entred hanging the Writ of Error ; but if Judgment be affirmed the Party must pray to have him in Execution , Jones p. 128. mesme Case .

At any time before the Capias awarded , if the Defendant dye , this dischargeth the Bail ; for the Recognisance is conditional , scilicet , to render his Body to prison if he were condemned , or to pay the Condemnation : And before a Capias he is not bound to render his Body , and therefore by the Act of God being impossible by death to render his Body , the Bail is discharged . And before Capias awarded the Principal is not bound to render himself , for the Plaintiff had Election to take out Execution by Elegit or Fieri Fac. as well as Capias , Jones Rep. p. 138. Calf and Bingly .

Pleading and Execution .

IN Scire Fac. or Recognisance against the Bail ; the Defendants Plea was venit & dicit , &c. Per Cur. he must say , venit in . propria persona or per Attornatum , and neither shall be intended , especially this being after a Demurrer , though general , 2 Keb. p. 388. Bolton and Clark .

When Scire Fac. issues upon the Recognisance , the Bail and Principal have two ways to defeat this , either by tender of the Body of the Principal , or by Plea ; and if at the Return they appear by Attorny they have chosen to avoid the Recognisance by Plea , 2 Rolls Rep. 382.

Scire Fac. against C. as Bail for D. and shews he had such a Term Judgment against D. and that he did neither render the Body nor satisfie the Debt . The Defendant pleads , D. came into Court and rendred his Body to the Fleet in Execution , and in discharge , &c. and that the Plaintiff did refuse to take him in Execution , and the Plaintiff denied yielding of the Body , and so Issue : Per Cur. it is not well pleaded ; for the yielding of the Body being an Act in Court and in discharge of his Bail which is of Record , must be it self of Record , and therefore ought to be concluded , prout patet per Recordum , Hobart p. 210. Welby and Canning .

In Scire Fac. against the Bail , they plead reddidit se of the Principal before the Return of the second Scire Fac. ( viz. ) 11 May. The Plaintiff prays Oyer of the reddidit se , and the Return which was the 6th of May. The Defendant demurs ; Judgment pro Quer. 2 Keb. 542. Turner and Lufton .

In Scire Fac. against Bail , or Judgment in Debt on Oyer of the Judgment : The Defendant demurred , because Scire Fac. is of a Judgment or Bill in Michaelmas Term , whereas the Bail appears to be in Hillary ; but the Bill being against the Defendant as in Custodia , the Bail may be at any time ; and heretofore the Bail was never put in before appearance , as now used . But in B. C. Bail is precedent to the Original in Habeas Corpus and is conditional to appear to the Original in two Terms , 3 Keb. 124. Segar and Brome .

Executor brought Scire Fac. againg the Bail , and declares that the Plaintiff did recover , and that afterwards the Plaintiff dyed , the Defendant not brought in by them . The Defendant pleads no Capias was sued out by the Testator ; a good Plea , 3 Keb. 190. Manuel and Coltlowe . The Plaintif cannot have a Capias without a Scire Fac. Qu. And if the Defendant principal dye before the return of the Capias , the Bail are discharged ; but not so on death before a second Scire Fac. Yet Cro. Jac. p. 97. Justice Williams against Vaughan . The Defendant in Scire Fac. pleaded the principal was dead before the Scire Fac. brought : ill Plea ; because he alledgeth not when he dyed , nor that he dyed before the Capias Awarded : and if once on a Capias , non est ●nventus is returned , the Recognizance is forfeited , because there was default in the party ; and though it be usual if the principal render his Body upon the first Scire Fac. to accept it , yet that is of grace , not of necessity ; therefore the death at the time of the Scire Fac. brought is not material , if he were alive at the Capias returned , Cro. Jac. p. 165. Timperly and Coleman .

If the principal dye before the Capias returned , the Bail may be discharged , but never where he dyeth after , though before the return of 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 Habea● Corpus , and new Bail here accepted ; and afterwards the Cause was ●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. Beston and Buller .

Mainprise or Recognizance may be taken before an Action brought , where the Cause is removed by Habeas Corpus , and so is the course in B. Com. The usual and best course to remove the Record , is by Mittimus out of Chancery , Cro. Jac. p. 97. Hargrave and Rogers .

Judgment is given in B. R. against the principal , and afterwards by Scire Fac. against the Bail : Principal and Bail cannot join in a Writ of Error upon these several Judgments ; and the Bail cannot have a new Writ of Error by himself , Quod coram vobis residet , because the Scire Fac. is none of the Actions wherein the Writ of Error is given in the Exchequer Chamber , Hobart p. 72. Forrest and Sir James Sandland . Judgment is in Scire Fac. which is a Judicial Writ , and it is not expressly named in Stat. 27. Eliz. Yel . p. 157. Prowse and Turner .

Judgment is given in the Scire Fac. upon the Recognizance ; Error was brought upon that Judgment , and the Judgment affirmed : Afterwards a Writ of Error was brought upon the principal Judgment , which was reversed : hereupon Audita Querela is brought . Per. Cur. the first Judgment reversed , is no reversal of the Judgment in the Scire Fac. because it is a collateral Judgment by it self ; yet it is a good cause for Audita Querela , for it is quasi dependent on the first Judgment , and the first Judgment is the cause that he is charged by this Recognizance , and it s but reason the Bail should have remedy to be discharged from the Execution , Cro. Jac. p. 645. Sir John Apsley and Ive . 2 Roll. Rep. 354. Legris Case .

Action was for 23 l. 18 s. The Bail on Recognizance was 23 l. 18. Judgment against the principal , and Scire Fac. against the Bail for 23 l. 10 s. it was held Error for this mistake , Cro. Eliz. p. 855. Kilborn and Trot.

Judgment was given in Scire Facias against the Bail , that the Plaintiff shall recover super recuperationem praedictam , where it should be super recognitionem praedictam ; No Writ of Error lyes in Exchequer Chamber , Causa qua supra , neither in this Case in the Kings Bench , for this is no Error in process , i. e. where one process is taken for another ; but the Error is only in point of Judgment , and no remedy but in Parliament , Yel . p. 157. Prowse and Turner .

D. brought a Writ of Error in Camera Scac. and found Sureties to prosecute with effect ; and for default a Scire Fac. was brought against him , who appears and is in Execution . Qu. If the Bail be discharged by the appearance of the Plaintiff in the Writ of Error , 1 Rolls Rep. 361. Asker and Downs .

Mainpernors were in Action of Debt , pro damnis & misis ; and Scire Fac. issueth de debito & damnis , and Judgment against the Mainpernors , and now a Supersedeas quia erronice fuit , for they were not Sureties pro debito . D●ddrige , ye are put to Aud. Quer. 2 Rolls R●p. 431. Cola and Yarnon .

Scire Fac. against Bail , upon 3 Jac. c. 8. in a Writ of Error ; the Defendant pleaded that the Principal did prosecute with effect , and that the Judgment was reversed ; he ought to plead pr●●ret per recordum , and not hoc paratus , &c. 1 Keb. 185. Maire and Spencer . and p. 318. Bor● and Hammond .

The Bail pleads the Recognizance was on Condition to prosecute Error , and alledgeth performance ; the Plaintiff shews that Judgment was affirmed prout patet by Record , and saith not unde petit debitum or executionem ; this being specially alledged as form in demurrer , is ill , 2 Keb. 581. Barret and Millward .

In Bail upon a Writ of Error upon the Sta●e of 3 Jac. c. 8. It s not sufficient to render the Body , but he ought to pay the Debt , Cro. Jac. p. 402. Austen and Monk .

The not assigning of Errors is a breach of the Recognizance to prosecute with effect according to the Statute 16 and 17 Car. 2. c. 8. Siderfin p. 294. Cooper and Price . But if the Party will come in and tender the principal Debt and Costs , the Court will relieve him , and not suffer the Plaintiff to take Execution against both ; and no ●stitution shall be of this Mony on this Recognizance , in Case the Plaintiff do after assign Errors , 2 Keble 75. Cooper and Price .

Scire Facias on Recognizance , on 10 and 17 Car. 2. c. 8. to prosecute a Writ of Error returnable 6 May , in East-Term , the Defendant pleads that 〈◊〉 died 18 August , and that until his death he prosecuted with effect ; the Plaintiff replies , that the Defendant did not cause the Record of B. R. to be certified into the Exchequer-Chamber in his life-time ; the Defendant rejoins , he was stopt by Injunction in Chancery . Per Cur. the Recognizance is not forfeited , 2 Keble 53 , 70. H●chman and Corbet .

If one of the Principals renders himself , this is no discharge of the Bail , vide 3 Keble 766 , 776. Astree and Ballard .

Defeasance , the noti● of it , It signifies to defeat or undo .

THere is a diversity between Inheritances executed , and Inheritances executory ; as lands executed by Livery , &c. cannot by Indenture of Defeasance be defeated afterwards ; so if a Disseisee release to a Diffeisor , it cannot be defeated by Indenture of Defeasance made afterwards ; but at the time of the Feoffment , Release , &c. the same may be defeated ; but Rents , Annuities , Conditions , Warranties , and such like Inheritances executory , may be defeated by Defeasances made either at that time , or any time after , Co. Lit. p. 237. ● . And so may Statutes , Recognizances , Obligations , and other things executory . And of Statutes , Judgments and Obligations , it is the usual practice to make a Defeasance of them afterwards . A Defeasance is a conditional Release , and a Release is an absolute Defeasance ; and the difference is as aforesaid between the Defeasance of a thing vested , and of a thing excutory ; as in a Feoffment of Lands , the Condition ought to be contained in the same Charter of Feoffment , or in another Deed sealed at the same time with the Feoffment , or otherwise the Condition is void , for by the Feoffment the Estate of the Land is vested , and executed 〈◊〉 the Feoffee ; otherwise of Judgments , Obligations , &c. therefore the Judgment given , Hill. 21 and 22 Car. 2. B. R. in the Case of Fowel and Forrest was against Law ; it was thus . Debt on Bond dated the 8th of Apr. 16 Car. 2. The Defendant after Oyer of the Condition , pleads ▪ That after the making of the Obligation , ( viz. ) the same day and year the Plaintiff by his Deed of Defeasance shewed forth , had promised and engaged , that if before the last day of J. 〈◊〉 next ensuing , he should not produce Testimonie● to prove that the Monies mentioned in the Condition● was a true Debt , and that the Defendant before the making of the said Obligation , had promised to pay this , then the Obligation should be void , &c. and avers , that the Plaintiff did not pro● any Testimonies to make such proof as aforesaid , the Plaintiff demurs ; Judgment was given for the Plaintiff upon this point , Because the Defeasance was pleaded to be made after the Obligation ; and if it would avoid the Obligation , it should be made at the same time , quod mirum , Sand●s 2 Rep. 47. I should rather have conceived the Reason of their Opinion for the Plaintiff to have been , for that it was an Obligation with a Condition ; and the Condition is it self a Defeasance , and that a Defeasance upon a Defeasance is improper and confused ; but qu. ●e ●c ratione .

B. acknowledges a Statute to S. There was a Defeasance , That if his Lands in the County of S. should be extended , the Statute should be void : Per Cur. the Defeasance is good , and not repugnant , because it s by another Deed ; but the Condition of a Bond not to sue the Obligation , is void , 〈◊〉 n. 1035. Trot and Spurling .

What amounts to a Defeasance , and what not .

THat the Bond shall not be sued before such a Feast ; if he be sued it shall be void , 21 H. 7. 23 , 30.

The Defendant pleads in Bar , That the Plaintiff by his Deed indented after the making of the Obligation , grants to the Defendant , that he will not prosecute or molest the Defendant , by force of the said Obligation , before the Feast of , &c. and demurs ; Per Cur. it s no Bar , but a Covenant , and if it were that he will not sue him at all , that may be pleaded in Bar to avoid circuity of Action , 1 Anderson p. 307. Dowse and Jeoffreys .

An Obligation from A. of 20 l. to T. B. with Condition , if he paid T. B. 40 s. at such a day then it should lose its force ; and after B. was bound to A. in another Obligation which was indorsed on performance of Conditions specified in an Indenture ; and after the end of the Conditions endorsed on the last Obligation , were these words , Provided always , that where the said A. is bound to the said B. in a Bond of 20 l. the said B. shall not sue for the Sum comprised in the said Obligation , until the Condition specified in the said Indenture , mentioned in this present Obligation , be performed ; after A. sued the first Bond , and B. pleaded this matter , and averred that the Conditions in the Indenture are not yet performed : Per Englefield and Shelly , This is not a good Plea ; the Condition to defeat another Obligation is impertinent , and the first Obligation● had an Indorsement on it , which shall serve for the Defeasance of it , 26 H. 8. fol. 9.

Several Bonds were sealed for the payment of Monies ; and after by Indenture the Plaintiff did agree with the Defendant , that if the Defendant should pay to Elizabeth the Daughter 500 l. and shall perform the other things , &c. that all the Obligations shall be void , and be delivered up ; its was agreed ; this was a good Defeasance of the Obligation ; but for other Faults in the Plea , Judgment pro Quer. Bridgmans Rep. 116. Lee and Wood.

Memor. I William I. do owe and am indebted to E. H. 10 l. for the payment whereof I bind my self , &c. In witness , &c. Memor. That the said W. I. be not compelled to pay the said 10 l. until he recover 30 l. upon an Obligation against A. B. Per Coke , That which comes after ( in witness ) is not part of the Deed , but shall have its force as a Defeasance ; but then the Defendant must plead it , 2 Brownl . Rep. 98. Hammond and Jethro .

Per Coke , A Man without a Defeasance , may plead that the Statute was acknowledged for payment of a lesser Sum , 1 Brownl. 51. in Broksbys Case .

The Statute was defeasanced on this Condition , If R. E. observe , perform and accomplish the last Will and Testament of Sir J. E. his Father , and pay and content all the Bequests and Legacies according to the true intent and meaning of the said last Will . Sir J. E. deviseth Land in Capite in Fee ; after his death R. E. enters into a third part of the said Lands ; by the major-part of the Judges , the Statute is not forfeit , Jones p. 267. Sir Rowl . Egertons Case in Chancery .

If the Defeasances on a Statute be by Indenture , and vary ; the words of the Defeasance are the Act and Words of the Conusee only , and not of any other ; and if his part of the Indenture vary from that part delivered to the Conusor , in that that it varies its utterly void , 2 Anderson p. ●8 . Hollingsworth and Wheeler , Cro. El. 532. Hollingworth and Ascue .

H. in Aud. Querela upon a Statute surmiseth , that there was an Indenture of Defeasance , if he pa● yearly for six years 50 l. to one J. B. at the Feast at St. Michaelmas , at such a place , &c. the Statute should be void ; and avers that it was to J. B's use , and that he tendred at every of the said Feasts 50 l. at the place , and that J. B. was not there to receive it : Per Cur. 1. Though J. B. was a Stranger to the Recognizance , yet forasmuch as it is averred to be made to his use , he ought at his peril to be ready at the place every day to receive it ; otherwise the Recognizance is not forfeit , when the other doth tender it . 2. Though he saith not , nec aliquis alius ex parte sua ; was there to receive it , its good ; for it ought to come on the other part , if any were there to receive it . 3. He saith at one of the days he was ready , and offered to pay it ; and J. B. was not there ad exigend● & recipienil . ( so the copulative ( & ) made the demand material , which needed not , ) yet the surmise was good ; for the matter is , whether he tendred or not , C●o. Jac. 13 , 14. Phillips versus Rice ap Hugh Cro. Eliz. 754. vide this Case well reported , Yelv. p. 38. by the Name of Hughs and Phillips .

A Defeasance unless made the same day of a Statute , and delivered uno flatu , cannot be pleaded in Bar , 1 Keb. 111. Sir Rich. Bellison , Qu.

In the next place I shall shew several sorts of Bonds ; as a Bond sued against the Heir , Arbitrament Bonds , Apprentices Bonds , Bonds for the Good Behaviour , &c.

Debt on Bond against the Heir .

HOW an Heir shall be charged on the Obligation of his Father ; at the end of Popham , Jones p. 87 , 155. Bowyer and Rovil , vide Siderfin p. 342.

It must be brought in the debet & detinet , Lach. p. 203. Anonymus . The Bill was on the File debet & detinet ; but the Declaration on the Roll was detinet only , which could not be amended after Verdict ; but leave was given to the Court to declare upon the old Bill ; being within three Terms he may declare , because the Debt else had been lost , because the Heir after the Bill entred had aliened the Term , ibid ,

Debt against an Heir in the detinet only , is aided after a Verdict , by the Statute 16 and 17 Car. 2. cap. 8. but not otherwise , 2 Keble 259 , 290. Siderfin p. 342. Comber and Waltoe .

It s good against the Heir tho the Executors have Assets ; he may have his Election , 1 Anderson p. 7. Sir Ed. Capels Case .

Debt lies against the Heir of an Heir upon Obligation of the Ancestor , to the 10th degree , Noy 56. Dennyes Case .

The Obligee shall have a joint Action against all the Sons in Gavel-kind , 11 H. 7.12 . b.

Debt against three Heirs in Gavel-kind ; the Defendant pleads C. one of the Heirs is within Age. The Heir of an Heir shall be chargable with an Obligation simul cum the immediate Heir , and such Heir shall have his Age , Moor n. 194. Hawtree and Auger , 1 Anderson p. 10. n. 22. id . Case .

If a Man bind himself and his Heirs in an Obligation , and leaves Land at Common Law and Gavel-kind , the Creditors must sue all the Heirs ; and if there be Land on the part of the Father , and on the part of the Mother , and both have Land by descent , he shall have several Actions , and Execution shall cease till he may take it against both ; so that the Construction of Law is stricter where the Heir is charged with Warranty real , than when he is charged with a Chattel , Hob. p. 25.

Riens per descent pleaded , and what shall be Assets .

J. S. by Will deviseth his Land to his Heir at 24. and if he die without Heir of his Body before 24. the Remainder over ; he attains 24. a Fee-simple descends , for no Tail shall arise before his said Age , which Tail shall never take effect , 2 Leon. p. 11. Hind and Sir John Lion , id . Case . 3 Leon. p. 70.

The Father bound in Obligation , and deviseth his Lands to his Wife till his Son comes to 21 years of Age , the remainder to his Son in Fee and dies ; the Son shall be adjudged in by descent , 2 Leon. 123. fol. 101. Bashpooles Case . 3 Leon. p. 118.

The Ancestor was seised in Fee , and by his Will deviseth them to the Defendant , being his Son and Heir , and to his Heirs , on Condition to pay his Debts within a year , and if he failed , his Executors shall sell ; he entred and paid no Debts , the Executors after entred and sold : It s not Assets in Heirs hands , for though the Heir hath a Fee , yet he hath it as a Purchaser being clogg'd with such a Condition , Cro. M. 5 Car. p. 161. Gilpins Case .

Two things requisite to bind an Heir , 1. Lien express . 2. Lands by descent . In Debt against an Heir , he is charged as Heir , and the Writ is in the debet and detinet , and it s not in auter droit , but taken as his proper Debt ; from 18 Ed. 2. till 7 H. 4. If the Executor had Assets , the Heir was not chargeable , but now the Law is changed in that Point ; if the Heir sell the Land before the Writ purchased , he is discharged of the Debt in regard he is not to wait the Action of the Obligee .

Trusts descending shall be Assets by the Statute of Frauds and Perjuries ; so Lands of special Occupancy , vid. Stat. The Defendant pleads , his Father was seized in Fee , and covenanted with J.S. &c. to stand seized to the use of himself for Life , the Remainder to the Defendant in Tail , &c. the Father had caused a Deed to be engrossed , and delivered the Deed to a Scrivener to the use of J. D. and M. so as J. D. would agree to it ; J.D. died never having notice of the Deed : Per Cur. the Father never covenanted , because the Agreement of J. D. was a Condition precedent to the essence of the Deed , and so no Deed to raise the Uses ; contra the Defendant , Moor n. 426. Dego● and Rowes Case , id . Case . 1 Leon. 152. n. 211.

The Heir pleads riens per descent ; special Verdict find , the Father was scised in Fee , and enfeoft J. S. of the Mannor of P. excepted and reserved to the Feoffor for life two Acres only , ( the Lands in question , ) and after limited all to the Feoffees , to the use of the Defendant in Tail : Per Cur. the Lands do descend to the Son , ( the Exception being void , ) 2 Keb. p. 667 , ●19 . Wilson and Armorer .

Upon riens per descent pleaded ; special Verdict find M. seised in Fee de Saliva Anglice a Salt-pan , died , and his Son entred and was seised , and the Defendant entred as Heir per possession . fratris , this is Assets by descent , and such Heir per possession ' is chargable to the Debt of the Ancestor , 3 Keb. Tr. 28 Car. 2. f. 659. Clinch and Butler .

The Heir pleads riens per descent ; the Defendant had levied a Fine , but because no Deed of Uses was produced at Trial , the Use was to the Conusor and his Heirs , and so the Heir in by descent , Mod. Rep. p. 2.

Riens per descent pleaded ; Feoffment pleaded ; at the Trial it appeared to be fraudulent ; it need not be pleaded , but may well be given in Evidence , 5 Rep. 60. Gooches Case .

Debt vers l'Heir , he may plead in Bar a Release made by the Obligee to the Executors ; and though the Deed belongs to another , yet he must shew it forth , for both of them are privy to the Testator , Co. Lit. 232. a.

Upon riens per descent pleaded , it was found he had Assets in the Cinque-ports , Judgment was general against the Defendants ; and as to the Moleties of the Lands in the Cinque-Ports the Plaintiff 〈◊〉 have a Certiorari to remove the Records into Chancery , and thence by Mittimus to send to the Constable to make Execution , 1 Anderson n. 65. p. 28. Hicker and Harrison vers. Tirrel , 3 Leon. p. 3.

The Heir pleads riens per descent ; the Plaintiff replies , he sued a former Writ vers l'heir , and the Defendant was outlawed , which was reversed , and he freshly brought this Writ by journeys accompts , and avers he had Assets the day of the first Writ purchased , Hob. p. 248. Spray and Sherrat , Cro. Jac. 589. id . Case cited .

Debt vers l'heir ; the Defendant pleads his Ancestor died Intestate , and that one J. S. had administred , and had given the Plaintiff a Bond in full satisfaction of the former : upon Issue joined , it was found pro Def. If the Obligor had given this Bond , it had not discharged the former , but being given by the Administrator , so that the Plaintiffs security is bettered , and the Administrator chargable de bonis propriis , it s a good discharge , Mod. Rep. 225. Blith and Hill .

He pleads riens per descent , but 20 Acres in D. in Com. Warwic . The Plaintiff replies , more by descent in S. ( viz. ) so many Acres ; and found pro Def. and a discontinuance in the Record of the Plea from Term P. to Term M. assigned for Error ; and per Cur. its Error , and not deins Stat. 18 Eliz. because the Judgment was not founded on the Verdict , but upon the Confession of the Defendant of Assets , Yelv. p. 169. Hill. 7 Jac. B. R. Molineux Case .

The Heir pleads the Obligor died Intestate , and J. S. administred , and he had given the Plaintiff another Bond in full satisfaction of the former , vide Mod. Rep. 221 , 225. Blith and Hill .

Declaration .

IN the Declaration is omitted ( & ad eandem solation , faciend. obligo me & haeredes meos ) it was amended , Cro. Jac. 147. Forger and Sales . Alit . if one declare in debet & detinet , where it ought to be in the detinet only , ibid. Winch p. 20.

If I declare on Obligation against a collateral Heir , the Declaration must be special ; as Debt against the Brother and Heir ; the Defendant pleads riens per descent from his said Brother ; but he had Assets by descent from the Son of his Brother , but he must be charged by special Declaration ; and so Judgment pro Def. Cro. Car. 151. Hill. 4 Car. 1. Jenkes Case .

Judgment and Execution .

DET port en Lichfield against the Heir ; he pleads riens , &c. the Plaintiff replies Assets , but shews not in what place , whether within the Jurisdiction ; Judgment was erroneous ; yet per Dodderidge , If the Jury find the Assets to be deins Jurisdiction its sufficient , though not so alledged . Q. if Costs and Damages shall be given to the Plaintiff on such Judgment , 2 Rolls Rep. p. 48. Brown and Carrington .

In all Courts he must shew the place of Assets , Q. Cro. Jac. 502. id . Case . Co. Rep. 6.46 Dowdales Case .

Det vers l'heir , pendant le Action another Action was brought against the same Heir upon another Obligation of the Ancestor ; Judgment is given for the Plaintiffs in both Actions , but the Plaintiff in the second Action obtains Judgment first ; he for whom the first Judgment was given , shall be first satisfied ; but if the Heir after the first Action brought had aliened , and the Plaintiff in the second Action commenced his Suit after such Alienation had obtained Judgment before the first Plaintiff ; in that case the Plaintiff in the first 〈◊〉 on should be satisfied , and he in the second Action not at all , Mod. Rep. 253. Anonymus .

In Det vers l'heir by Bill , after riens per d●sm pleaded , tempore exhibitionis Bills ; the Defendant excepted at the Trial , because the Bill was not shewed ; and the Plaintiff was non-suit : Per C● the Bill is confest , and need not be shewed , 1 K●b . p. 793. Rogers and Rogers .

The Heir shall put in Bail on a Writ of Error , per Stat. 16 Car. 2. c. 2 Keb. 320. Co●ber and Walton .

Det vers tres Co-heirs ; two confess Assets , the other pleads to Issue and is non-suited ; it s a Non-suit against them all , though the two have confest ; and so the Plaintiff lost his Debt , there being ●n Alienation before a new Original , Siderfin p. 378 Blacks Case .

He ought to confess the Assets that truly descend to him , otherwise his own Land shall be charged with the Debt , Plow. 440. Pepyes Case . Dyer ● Henninghams Case , Dyer 344. Qu. if upon ●il dicit or non sum informatus , Judgment shall be general : but in Sc. fac . sur Recognizance of the Ancestor against the Heir , he pleads riens per descent , which is false ; here Judgment shall be special , for he is not charged as Heir , but as Terre-Tenant ; at the end of Popham , 1 Car. B. R. 153. Bowyer and Ricots .

After Imparlance one is estopt to say that he is not Heir , ( being charged in Debt as Son and Heir , ) so to say he is a Bastard , 35 H. 6. 36 , 37.

The Heir pleads riens per descent , besides one Acre ; if the Plaintiff please he may have Execution of that one Acre ; or if the Plaintiff plead that he hath Assets beyond that Acre , and it be found that he hath ten Acres more , the Plaintiff shall have Execution of the Land only , and not of his Person . Where the Heir pleads he hath nothing by descent generally , and it s found against him , the Land and all other Land that he hath , and his Body , are ●iable to judgment by Ca. sa . Fi. fat . or Elegit , ●1 Brownl Rep. 254. Qu. what difference between a false Plea and nil dicit , 2 Keb. 343.

Riens per descent after the death of the Ancestor . Prist . Such Issue shall be good in a Formedon ; for if he have Assets at any time , he shall be charged and barred of his Formedon intirely : in this Case it must be riens jour de brev● purchase nec un●p●is , 10 H. 7.8 . b.

In Det vers 4 Co-heirs on several Issues on riens per descent , Assets was found as to one only ; Judgment given against her that had Assets , quod re●uperes debitum & dam● sua generally , 〈◊〉 de hunis propriis , 2 Keb. p. 588. Cary and Brickm●r versus Lock .

On nil dicit the Heirs own Lands and Goods shall be charged , i. e. a general Judgment .

The Heir pleads Lands set out for Portions , besides a Reversion of which he hath nothing ; replies , a third part descended ; Judgment special , 1 Keb. 156. Cudmo● and L●wis .

Judgment against the Heir upon nil dicit shall be general , and shall extend to his own Lands , as well as to those which specially descend , Poph. 154. Bowyers Case . M●or n. 657. Bar●r and Bor●e .

Capias lies too against the Heir in Case of a false Plea , 2 Leon. p. 11. Sir John Lyons Case .

The Defendant confesseth he hath a seck Reversion , beyond which he had no Assets ; the Plaintiff said he had ouster , and were at Issue ; the Plaintiff comes and prays leave to wave this Issue , and to have Judgment of the Reversion , quod fuit concessum quando accideret , 1 Rolls Rep. 57. Anonymus .

The Jury find the Defendant had divers Lands in Fee by descent , and shews not what ; yet Judgment good ; for upon his false Plea Judgment shall be given generally against him if he have any Assets ; and so the quantity of the Assets is not material ; but otherwise in Case of Executors , for there they must find the value of the Assets , for he must there recover according to the Assets found , 1 Rolls Rep. 234. Evet and Sucliff . M. 13 Jac. 1. B.R.

The Judgment and Execution shall be general , unless the Heir acknowledgeth the Action , and shews that he hath so much by descent , Cro. M. 41 and 42 El. 692. Barker and Bourne .

If the Heir pleads riens per descent , and it be a faux Plea , it shall be a general Judgment against him , and no Writ of Enquiry need to be to enquire what Lands he hath , and need have no special Judgment , for the Judgment ought to be , that the Defendants Body and Goods shall be liable , and half his Lands , Stiles p. 287 , 288. Allery and Holden .

If the Jury find he hath Lands by descent , and name them , and Judgment accordingly , its erroneous , Stiles p. 327. Subgrave and Bosvil .

Cro. Jac. p. 236. Molineux Case . Armourer versus Willis , 2 Keb. 642 , 643 , 667 , 719. What Bail the Heir shall put in , 3 Keb. 803. Lawrence and Blith .

Bonds of Arbitrament .

I Shall not here run into the Learning of Awards , which is a curious and large Title in our Law , and of which Mr. March hath composed a very Methodical Treatise , but take notice of some few select Cases , which respect the Nature of such 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. C●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 B● .

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 kn● to the Land by the Owner himself , but by a Stranger ( s● ) the Arbitrato● ▪ But it is a good clause to make the same an Article of the Arbit●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 . arbitri● ; 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 Ba● of the Plaintiffs Action . Aliter , if had been a Deb● 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 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 Mo● after demand . Per Cur. before payment ought 〈◊〉 precede Account and Arreares , and in this A● Proof ought to be made , and he must give notice to the Defendant , 1 Bulstr . f. 40. Cockain and Go●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 i● every way against the Plaintiff , Hob. p. 217. Crookhay and Woodward , Vid. 2 Rolls Rep. 40. Le● and Finch , Cr● . Jac. 488. Lee and ●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. ●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. pri● . A Stranger is bound that such an Apprentice shall transport Wa● make Accompts and pay Mony . The Obligee re●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 Paito● .

Condition to teach and employ his Apprentice in his House and Service in the Art of Chirurg● for eight years . The Master sends him a Voyage to the Indies . The Defendant pleads he did it for the ●ter instruction of his Servant . The Plaintiff 〈◊〉 m● ; and Judgment pro Qu●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. Coven●ry and Weedal , 1 Rol● 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 end or determination of his Apprentiship : The Apprentice serves six years and dies ; Per Cur. The Obligation is discharged , and the Mony shall not be paid , 1 Brownl . 97. Cheyny and Sell , Cro. Eliz. p. 723. Cardinal and Hesket , About embezelling .

Bo●ds for the Good Behaviour .

THE Condition of this Recognisance standeth upon two Points . 1. For appearance at the time . 2. For keeping the Peace in the mean while .

The Form of the Recognisance for the Good Behavior

Mem. quod quinto die mensit , &c. Anno Regni , &c. venit coram me A. B. Ar' uno Justiciatiorum Domini Regis ad pacem nunc , &c. R. C. de , &c. in propria persona sua & assumpsit pro scipso sub poena 200 l. & H. C. de L. &c. & J. S. de , &c. tunc & ibid. in propriis personis suis similiter vener. & manuceper . pro praedict. R. G. ( viz. ) quilibet eorum separatim sub poena 100 l. quod idem R. G. personaliter comparibit coram Justiciarii● dicti Domini Regis ad pacem , &c. ad proximam generalem S●sionem , &c. & quod ipsa interim se bene geret ●a Dominum Regem & cunctum populum suum , & praecipue erga J. B. de C. &c. Et quod ipse non inferret nec inferri procurabit per se nec per ali● d● aliquod seu gravamen praefat. J. B. seu alicui de populo ipsius Domini Regis de corporibus suis per insidias insultus seu aliquo alio modo quod in laes●onem seu perturbationem pacis dicti Domini Regis cedere valeat quovismodo , quas quidem separales summas 100 l. uterque praedictorum H. C. & J. S. ut praedicitur pro se a● praedict. R. G. dictas 200 l. recognoverunt se debere dicto Domino Regi de terri● & tenementis , bonis & catallis suis & quor umlibet & cujuslibet eorum ad opus ipsius Domini Regis fieri & levari . Si contingat praefatum R. G. in aliquo praemissorum deficere & inde legitimo modo convinci , &c. In cujus rei Testimonium ego praedict. A. B. sigillum meum imposui , dat . &c. Dalton 3●0 . c. 123. Kilby's Presid . 191. is more full , but to the same purpose .

And this may be done also by a single Recognisance in Latin with a Condition added or endorsed in English for the keeping of the Peace , or for the day and place of appearance at the Quarter Sessions , or in Latin .

The Obligation shall be made in the Kings Name by the words Domino Regi , per Stat. 33 H. 8.39 . sect. 52. And such Bonds shall be of the Nature of a Statute Staple .

Per Stat. 3 H. 7.1 . Every Recognisance taken for the Peace shall be certified at the next Sessions of the Peace , that the Party thereupon may be called , and his Default , if any happen , may be recorded . The Justice of Peace must send or bring it in at the next Sessions to the Custos Rotulorum , whether the Recognisance were taken by his own discretion , or at the suit and desire of another . Altho the Party that prayed the Peace do not then appear at the Sessions , yet the default of the Recognisor is not thereby discharged ; and the Justices may then of discretion bind him over again .

If the Recognisance be versus cunctum populum & praecipu● versus A. A. may release it either before the same Justice or any other that will certifie the Release , which Certificate being of Record will discharge it , but to release it by his Deed is nothing worth . But the Recognisance may not be cancelled , lest perhaps the Peace was broken , and consequently the Recognisance forfeited before the Release .

Therefore it will be best in such Cases to send to the Sessions the Recognisance and the Release together , and that may be done in a few Lines under the Recognisance it self , as ,

Memorandum , Quod primo die , &c. praefatus C. D. venit coram me S. L. & gratis remisit & relaxavit quantum in se est praedictam securitatem pacis per ipsum coram me versus supranominatum A. B. petitam . In cujus rei testimon●um , Igo praefat. S. L. &c. dat . &c.

If a Man be bound to the Peace , and to appear at next Quarter Sessions , and do afterwards procure a Supersedeas out of Chancery testifying that he hath found Surety there against all the Kings People for ever ; this will discharge his appearance at the Sessions . And it is best for the Justice of Peace to send in , as well the Recognisance as Supersedeas , for perhaps the Recognisance was broken before the Supersedeas purchased .

The death of the King dischargeth the Recognisance of the Peace ; so doth the death of the Recognisor ; so doth the death of him at whose Suit it was taken . But though the Sureties die the Recognisance standeth ; for if the Peace be broken after death , their Executors shall be charged with it .

In the Release of Surety of the Peace , these words are , Securitatem pacis ; but for the good Behavior , Securitatem de se bene gerendo .

The Informer against a Prisoner for Felony , may be thus bound in a single Recognisance .

Kanc. ss . Memorand' Quod tertio die Apr. Anno , &c. D. E. de B. &c. personaliter coram me T. S. uno Justiciariorum , &c. ad pacem , &c. assignator' constitutus apud B. praedict. recognovit se debere dicto Domino Regi 10 l. bonae , &c. de bonis & catallis , terris & tenementis suis fieri & levari ad opus dicti Domini Regis , Herod . & Successorum suorum si defecerit in conditione indorsata .

The Condition of this Recognisance i● such , whereas one A. B. late of G. Labourer , was this present day brought before the said Justice by the above bounden D. E. and was by him charged with the felonious taking of 20 Sheep of him the said D. and thereupon was sent by the said Justice to the Kings Majesty's Gaol . If therefore he the said D. shall and will at the next general Goal delivery to be holden in the said County , prefer or cause to be framed and preferred one Bill of Indictment of the said ●elony against the said A. B. and shall and will then also give Evidence there concerning the same , as well to the Jurors that shall then enquire of the said Felony , as also to them that shall pass upon the Tryal of the said A. B. that then , &c.

A Recognisance to appear and answer for Felony .

Memorandum , Quod vicesimo die &c. R. C. de I. Gen. E. C. de &c. J. B. de &c. venerunt cora● me J. H. Armig. uno Justiciariorum dicti Domini Regis ad pacem in Comitat. praedict. conser●nd . assignat . & man●osperunt pro R. B. de &c. ( viz. ) Quilibet eorum corpus pro corpore quod idem B. R. personaliter comparebit coram praefat. Justiciariis & sociis ad prox . general . Session ; pacis in Comit● . praedict. tenend . ad . stand . ●ct . in Curia siquis versus cum loqui voluerit de diversis feloniis & transgressionibus unde idem R. B. judicatus existit ut dicitur , & ad respondend . dicto Domino Regi de iisdem prout debet , dat. &c.

Recognisance of Bail .

Kanc. ss. Memorandum , Quo ●quinto die A. D. de &c. G. H. de &c. J. K. de &c. personaliter venerunt coram nobis . C. D. & E. F. Justiciar . dicti Dom. Regis ad pacem suam in Com. suo praedict. conservand . assignat● & recogneverunt se deber● eidem Dom. Regi modo & forma sequen . ( viz. ) praedict. A. B. 20 l. legalis , &c. & uterque praedictorum G. & J. 10 l. confi●lis ●nita , de seperalibus bonis & catalli● terris & tenementis s● seperalis . fieri & le vari ad opus & usum dicti Dom. Regis hared . & successor . suorum , si defult . fieret in performatione conditionis indors .

Condition for appearance for Felony or suspicion of Felony .

The Condition of the Recognizance is such , That if the within bound A. B. do personally appear before his Majesties Justices of Gaol-delivery , at the next general Gaol-delivery to be holden for the within named County of Kent , then and there to answer to our Sovereign Lord the KING for and concerning the felonibus taking and stealing of , &c. ( or for suspicion of his felonious taking , &c. ) wherewithal he standeth charged before , &c. and to do and receive , &c. and do not depart the said Court without licence for the same , then , &c.

If it be to appear at Sessions , say , Do personally appear before his Majesties Justices assigned to keep his Peace in the within named County of K. at the next General Sessions of the Peace to be holden for the said County of T. in the County aforesaid , then and there to answer , &c.

If the Party th● is bound to appear on Surety for the Peace , be so sick that he cannot appear , the Justices in their discretion have forborn to certifie or record such Forfeiture or Default , and that they have taken Sureties for the Peace of some Friends of his present in the Court till the next Sessions .

If the Husband be bound that he and his Wife shall appear at such a Sessions , and that they shall keep the Peace in the mean time , &c. and at the day the Husband appears alone ; Qu. if the Recognizance be forfeited .

A Supplicavit out of Chancery directed to the Sheriff and Justices to bind F. and two others to the Good Behaviour ; the Sheriff returns , that the two non sunt inventi , and quoad F. that such a Recognizance was taken before the Justices and that he had broken the Good Behaviour ; and F. pleaded to Issue in Chancery ; the Record being sent into the Kings Bench per manus Dom. Cancellaris ; thereupon a Writ of Nisi Prius issued , and found for the Defendant ; this Recognizance was not well certified into the Chancery , for they who take the Recognizance ought to certifie it , Cro. Jac. 669. Ford against the King .

If a Man find Sureties for the Peace before the Justices of the Peace in the County , yet if the same Party come in B. R. and there make Oath , that he was afraid he shall be hurt by the said Party , he may have surety of the Peace there against the Party , and a Supersedas to the Justices to discharge the Bond taken before them for the Peace and Behaviour , Moor n. 126.

Upon motion on Affidavit , that he was bound to the Peace for Malice ; his Recognizance was discharged , Stiles p. 364 Sir Tho. Revels Case .

It s the Course of the Court , when any are bou●d over to appear in B. R. and in the mean time to keep the Peace , or be of Good Behaviour ; the Cause is to be exprest in the Recognizance ; also when ever the Court binds any Man to the Peace or Good Behaviour , it s always for a year , 1 Keble . Hill . 16 and 17 Car. 2. B. R. Sandford versus Atkinson .

What is or amounts to a Breach or Forfeiture .

THE Surety of the Peace is not broken without Affray made , or Battery , & bujusmodi , 2 H. 7.2 . b.

Words which threaten a Battery of the Body may forfeit a Recognizance ; but not to call one Lyar , Drunkard , and to say I will make him a poor Kirton , Moor n. 378.

If he threaten to beat him to his Face , it s a Forfeiture , or if he threaten in his absence , and afterwards lies in wait to beat him , Keb. Inst. 615.

If he that is bound do but command or procure another to break the Peace upon any Man , or to do any other unlawful Act against the Peace , if it be done , it s a Forfeiture of his Recognizance , 7 H. 7.34 . a.

There is a Surety of the Peace , and a Surety of the Good Behaviour ; the Surety of the Peace cannot be broken without some Act ; as an Affray or Battery , or the like ; but the Surety de bono gestu consisteth chiefly in doing nothing that may be cause of the Breach of the Peace : the word Lyar , Drunkard , &c. are not Breaches , nor entring his Close , nor taking Goods ; What is a Breach of the Peace , is a Breach of the Behaviour , riding with War-like Weapons , ( but that is not Law now , ) or in Company with riotous Malefactors , Cro. El. 86. k. 4 Inst. 180 , 181. Kings Case .

In Sc. Fac. upon a Recognizance for the Good Behaviour taken in the Crown Office ; the Breach is assigned , because he assaulted land b●t ●ne on the Way , and he saith not vi & a● , and for this Cause after Verdict Judgment was stayeth , Cro. Jac. 412. The King and Hutchings .

Scire Facias upon a Recognizance of the Good Behaviour ; Breach assigned was , That he said to a Constable in executing his Office , thou art a lying Rascal , and to a Woman that she was a Whore and a Jade , &c. The Defendant pleaded not guilty , and found for the Defendant , though the manner of speaking may be good cause in discretion , to bind one to his Good Behaviour ; yet one being bound , words only which tend not to the Breach of Peace , terrifying others , or to sedition , &c. shall not be sufficient cause of Forfeiture .

Nota , In this Case the Witnesses in the behalf of the King , did not prove that these words were i● disturbance of the Execution of his Office , Cro. Car. 498. The King versus Hayward .

Farther Considerations of Bonds in respect of Assignment , Statute of Bankrupt and Forgery , &c.

Assignments of Obligations . Vide Creditors as to Statute of Bankrupcy .

IF a Man assign an Obligation to another for a precedent Debt due by him to the Assignee , that is not Maintenance ; but if he assign it for a Consideration then given by way of Contract ; this is Maintenance , Noy 53. Harvey versus ●man , Alit . in Case of the King . 3 Lion . 234. Scoth and Marsh .

Upon the Statute of 33 H. 8. cap. 39. the Case was . If Tenant in Tail of the Mannor of D. be bound in a Recognizance to J. S. which Recognizance after comes to the King by the Attaind● of J. S. of High-Treason , and after Tenant in Tail dies , and the Issue in Tail alien the Lands , bona fide ; whether the King may extend the Lands in the Hands of the Alience : It was resolved , That if Tenant in Tail become indebted to the King by Judgment , Recognizance , Obligation , or other Specialty , and dies before any Process or Extent , and the Issue in Tail alien the Land bona fide , this Land shall not be extended by force of this Statute . And also that in this Case , in as much as the Debt was originally due to a Subject , it is not within the Act to charge the Lands in the possession or seisin of the Heir in Tail , or of his Alience ; for this Act extends only to Debts immediately due to the King originally , and not to those which accrew to him by way of Assignment , Outlawry , Attainder , Forfeiture , Gift of the Party or any other collateral way , 7 Rep. 21. Lord Andersons Case .

The Statute of 7 Jac. makes Assignments of Debts void , other than such as grow originally to the Kings Debtor , bona fide ; it restrains Assignments of Debts which are not due to the Debtors themselves , but assigned to or by them to other Persons . The purport of this Law was , That no Debtor of the Kings should procure another Mans Debt to be assigned , which was a common practice ; but a Man may assign his own Debt , tho not to his own Use ; for what he may himself release and discharge , by the same Reason he may assign ; as B. was bound to C. in a Stat. of 2000 l. C. dies Intestate , his Wife administers and marries , F. F. with others became bound to the King in 6000 l. F. and his Wife by Deed enrolled in Cur. Ward . assign the Statute to the King by payment of the 6000 l. the Assignment was good , Hob. p. 253. Brediman and Coles . Cro. Hill . 16 Jac. p. 524. id . Case .

A Duty which is not naturally a Debt but by circumstance only ; as Debt upon Bond for performance of Covenants , or to save harmless , may be assigned over to the King for Debt ; yet a present Extent shall not issue , but a Scire Fac. 2 Leon. p. 55. Beaumounts Case .

Debt against one as Executor , and upon fully administred pleaded , it was found pro Quer. who assigned the same to the King , 2 Leon. p. 67. Noons Case .

M. indebted to S. by a Note in writing per me ▪ but not sealed ; such a Debt may be assigned to the Queen , 3 Leon. 234. March .

An Obligation may be assigned to the King sans Deed enrolled , 3 Leon. p. 234. South and Marsh , 21 H. 7.19 .

Where the King sues for a Debt assigned to him , the Obligor cannot plead nil debet , for by the Assignment it s become matter of Record , ibid.

An Obligation forfeited to the King by the Statute 28 Eliz. c. 8.1 . Q. if the King ; may grant before Seisure . 2. There are two Obligees , and one forfeits . Q. if the King shall have all the Bond , 1 Rolls Rep. p. 7 , 12. Jac. B. R. Cullan and Bets.

In Assignment of a Bond to the King , the ●ead shall only be liable from the time of the Assignment ; but in Assignment of a Recognizance or Statute , the King shall have the Land at the time of the Judgment rendred , Lit. Rep. p. 125. Roy versus Hanton .

By the grant of bona & catalla an Obligation passeth , i. e. Paper and Wax ; yet the Grantee may not have Action upon this , for that is not transferable , Lit. Rep. 87. Dyer 25 H. 8.5 .

If a Debt be assigned to the King , in this Case no priority of Execution , 1 Brownl. 37.

A Condition to save harmless for assigning a Bond , vide the Form , Bridgmans Presidens .

Clark was indebted to A. by Bond , and after delivers to Andrews certain Hogsheads of Wine to satisfie the said Debt ; and afterward Clarks Obligation is assigned to the Queen for A's Debt : Per Cur. the property of the Goods by the delivery of them to Andrews , before the Assignment was altered , 2 Leon. 89. Bridget Clarks Case .

A. was indebted to B. who was indebted to the Queen , B. assigned his Debt to the Queen ; by all the Barons , Process shall be awarded out of the Exchequer to enquire what Goods A. had at the time of the Assignment , and not what he had tempore scripti praedict. fact. 3 Leon. 196.

Obligation . Of Creditors in respect of Statute of Bankrupts , and Assignments .

OSborn and Bradshaw were Sureties pro Churchman , and had Counterbonds to save harmless ; the Sureties paid the Mony , and afterwards Churchman became a Bankrupt . Resolved , that they were Creditors within the Statute 13 Eliz. Cro. Jac. 127. Osburn versus Churchman .

If an Obligation be taken in the Name of another , to the use of a Bankrupt , the Commissioners may well assign that , unless the other party hath of his own Mony satisfied Debts due by the Bankrupt , Noy p. 142. Ca●●hman's Case .

Debt sur Obligation , assigned by Commissioners of Bankrupts , and doth not shew the Obligation ; he need not , because he comes in by act of Law , and hath no means to obtain the Obligation ▪ As Tenant per Statute Merchant , or Dower , shall have advantage of a Rent Charge sans shewing the Deed. Cro. Jac. p. ●9 . Gray and F●●lder .

R. is indebted to S. and B. joyntly ; S. becomes a Bankrupt , and the Commissioners assign the Obligation to B. Q. 1 Keb. p. 167. Roylston and Ratcliff .

If I am bound to J. S. and he before Bankrupcy assigns the Bond ; this is liable to the after Bankrupcy of J. S. being only suable in his Name , 2 Keb. 331. Backwell versus Litcott .

In Debt sur Bond , the Defendant pleads before Action brought , the Plaintiff became a Banrupt : Per Cur. it 's an ill Plea ; and until an Assignment made , the Debtor is defenceless , and payment before Commission sued out is good enough ; and so it is before his Debt be assigned , 3 Keb. 316. Andrews and Spicer .

In Debt sur Obligat . the Defendant pleads , that it was in trust for Holt , who was a Bankrupt , & virtute Commission' , &c. this Debt was assigned to Ashly and Penning , & aliis Creditoribus . The Plaintiff replies , It was not assigned . The Defendant demurs specially for doubleness . The Court conceived the Bankrupcy traversable as well as the Assignment ; yet the Issue is well enough , 3 Keb. 737. Jones and Bolton .

Condition to give account to the Creditors , &c. 1 Keb. 815 , 843. Selby versus Walker .

The Disposition by Commissioners of Bankrupts , saves the forfeiture of the Obligation . 2 Keb. 202. in Robin's Case .

I shall here subjoyn some things respecting Matters of Tort ; as Forgery , Detinue , &c. of Obligations .

Forgery .

IF a Man forge a Bond in my Name , I can have no Action of the Case yet : but if I am sued , I may ; tho' I may avoid it by Plea : But if it were a Recognizance or Fine , I shall have a Deceipt presently before Execution . 19 H. 6.44 . cited in Hobart , p. 267.

The Penalty of Forging Deeds , 5 Eliz. c. 14. Co. 3 Inst. p. 171.

When the Statute saith , If any Man forge any Obligation , or Bill Obligatory , these must be intended to be Sealed . If a man forge a Statute Staple , that is , acknowledge them , or either of them in the name of another ; these are Obligations within this Act , for each of them hath the Seal of the party . Alitèr of a Statute Merchant , or of a Recognizance , because they have not the Seal of the Conusor , Co. 3 Inst. p. 171.

Obligation of 10000 l. for the payment of 5000 l. per W. ( who is dead ) at three Months end . It was suspected to be forged , and on Non est factum pleaded , at Trial at Bar , the Testimonies were examined apart . The Jury found Non est factuns ; but the Obligation shall not remain in Court , but be delivered to the Plaintiff , Siderfin 15 Car. 2. B.R. p. 131. Guillim's and Huley .

Forgery may be pleaded in Bar to an Obligation ; but it 's no Plea to say , that there was an award in Chancery , that the Obligation should be void for unconscionableness , 37 H. 6.13 , 14.

B. was bound in 100 l. Bond to A. for the honesty of his Son an Apprentice with A. and A. in the Obligation razeth out libra . and put in marc● . This is not Forgery punishable ; it 's not a prejudice to any but himself , for by that the Obligation is void , Noy 99. Black and Allen.

Where false Alterations shall be a Forgery within the Stature , Co. 3 Inst. p. 169.

Detinue .

IN Detinue the Defendant pleads , That the Obligor and Obligee did deliver it to him sub certis Conditionibus , and he knows not whether they be performed , and prays Garnishment and on Issue found for the Plaintiff . It was moved in Arrest of Judgment , because there was not Garnishment before the Issue , and the Issue is uncertain sub certis conditionibus , non allocatur ; it 's a Jeofail , Cro. Eliz. 856. Pursand and Whityer .

Detinue of a Bond , on non detinet it was found for the Plaintiff , and Damages assessed to 7 l. and Cost 6 d. and if the Bond cannot be restored , then they assessed for Damages besides the 7 l. 20 l. more ; the Judgment ought to be Conditional , to recover the said Bond ; or if he cannot have the said Bond , then the 20 l. and so the Distringas to the Sheriff must be , to demand the Bond ; and if it cannot be delivered , then the 20 l. for it is not at the Sheriffs choice ; therefore the Distringas Vic' for the said Bond , or 20 l. was erroneous , Cro. Jac. p. 681. Peters and Heyward .

One Executor gives up a Bond in discharge of his own Debt , and dies , the surviving Executor shall not have Detinue for it , Croi . Eliz. p. 478 , 496. Kelsock and Nicholson .

Where , and in what cases , Notice is requisite to be given before the Action brought upon an Obligation , and where not , and by whom .

WHen a Man binds himself to do or perform any thing to be awarded , &c. by a Stranger , he thereby takes upon himself to take notice at his peril of all things incident thereunto for the saving of his own Bond , 8 Rep. 92. b. Frances Case . As ,

Condition to perform the Award of J. S. and J. S. makes an Award , the Obligor ought to take notice thereof at his peril ; for that he hath bound himself thereto , and no Notice is requisite to be given to him .

Condition to pay 20 l. within 10 days after J. S. hath rode five times in six days from London to York , and from York to London ; he ought to take notice of the doing of this at his peril ; for that it is to be done by a Stranger , 1 Rol. Abr. 463. Herbye and Pope .

Condition to pay 40 l. to B. within a year after B. shall marry C. he is bound to pay it within the year after Marriage , without any Notice given of the Marriage by B. for he hath taken it upon him ; and he may have Notice by C. who is a Stranger to the Condition , 1 Rol. Abr. 463. Shephard and Fry .

A. is bound to B. that A. shall pay to B. all such Monies , which by a true and justifiable Bill under the Hand of B's Attorney , shall appear to be before disbursed per B. or his Attorney . B. assigns a breach , that 24 s. by a true and justifiable Bill under the Hand of J. S. Attorney of B. appears to be disbursed , which A. hath not paid . This is a good Breach , without alledging that A. had Notice of this , or that the Bill was shewed to him ; for the Attorney was a Stranger , of which A. ought to take notice at his peril , 1 Rol. Abr. 467.39 . Dewell and Wilmot .

Bill Obligatory , to be paid within 10 days after J. L. went by five days undivided from thence to London , and alledges he did so ; & licet saepius requisitus . Quare , If there need any Notice , because the Act is to be done by a Stranger , and his time of Return lies as well in the Notice of the Obligor , as of the Obligee , Cro. Jac. p. 150. Normanvile and Pope .

Condition to pay such Arrears as should be found on his Account before such an Auditor . Defendant pleads he did account , and was always ready to pay the Arrears , if the said Auditor had given him Notice . No Plea ; for he hath bound himself thereto , and he must take notice thereof at his peril , 1 H. 6.5 .

But Condition to Account before such Auditors as the Obligee shall Assign , he ought to give Notice of them to the Obligor . 8 Ed. 4. 1. b.

Regularly , it is not requisite to give Notice where one is bound to do an Act by Bond.

Undersheriff covenants with the High-sheriff , to discharge and save him harmless of all Escapes of Prisoners that should be Arrested by him , or any Bailiff appointed by him , and a Bond of Performance : Per Curiam , The Sheriff is not bound in this case , either to give Notice to the Under-sheriff of the Escape , or to make request for discharge ; for the Covenant binds him to discharge at his peril , Hobart p. 14 Sir Daniel Norton's Case .

Condition , that if the Obligee return from beyond Sea before the 22th of April next ; then if the Obligor pay unto him at Easter following 200 l. then , &c. if Obligee return within the time , he is not bound to give Notice of this to the Obligor , but he ought to take Notice at his peril , for he hath bound himself to this Inconvenience , 1 Rolls Abr. 463. Eve and Dawtry .

Condition to pay 10 l. at the day of Marriage of the Obligee ; the Obligee is not bound to give Notice to the Obligor before his Marriage , at what day he will be married ; but the Obligor must take Notice at his peril , for he hath taken upon him to pay it at the Day , 1 Rol. Abr. 461. Beresford and Goodzon's Case .

So it is , if it be at the day of the 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 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. Whorewood 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 deb●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 D●murred to the Declaration , and the Court ex offici● 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 Executors of G. naming them , were dead ( not saying intestate ) and if any Executor made his Executor , the Plaintiff is not sufficiently intituled : Non allocatur ; per Cur. the Defendant ought to shew there were Executors . Judgment pro Quer. 1 Keb. 480. Burgess versus Clayton .

Against Executor or Administrator .

DEbt on Bond against B. Executor ; Defendant acknowledgeth the Bond , but saith , he gave another Bond in satisfaction of that Bond unto the Testator , which the Testator did accept in satisfaction : Ill Plea , one chose in Action cannot be in satisfaction of another . Stiles p. 339. Crook and Vernon .

Debt against J. B. and M. his Wife Executrix of her first Husband , upon Bond● Defendant Pleads thus , praed. J. and M. per Atternat say , that they were divorced before the Writ purchased : On Demurrer adjugded that the Writ shall abate . Crook Eliz. 352. Underhil's Case .

The Plaintiff brings two Obligations of 20 l. a piece against the Executor , whereas one was not due , and Damages were given for both entirely ; but it s no Error ; for it was only an allegation of the Defendant , and it did not appear ; and the Defendant rested not upon it , but pleaded another Plea . ( viz. ) a request to make a Release , and Issue upon that . If the Plaintiff Sue one as Executor joyntly with the true Executor , who is not Executor , this is not in Abatement of the Bill or Writ , but only that he shall be barred against him , and so not Error , Crook Eliz. p. 110. Thi●kettle against Reve.

The constant difference is , where Executors bring the Action , all must be named ; but an Action brought against them , may be against such only who do Administer ; and unless it be averred that he did Administer , the Defendant cannot plead this Plea in Abatement ; and therefore in 1 Keb. p. 865. Swallow against Emerson . In Debt upon a Bond , the Defendant pleaded that there was another Executor not named , and yet living , and doth not say that he did Administer : The Plaintiff Demurred , and Judgment for the Plaintiff .

Debt against the Defendant Executor of one joynt Obligor ; Defendant pleaded in Abatement , that it appears the Obligation was joynt , sed non allocatur ; for it appears not that the other Sealed , nor that the other Survived , in which case the Executor would be discharged ; the Plea was concluded quod billa cassetur , and it begins with Judgment de billa , but the body of the Plea is a general Demurrer , which per Cur. is a plain bar to the Declaration , here being no Plea in Abatement , only , the form begins and ends in Abatement , but there is no other form to a Demurrer to a Declaration : In Abatement it should be si ad billam prad respondere debet ; for praecludi non is replication to a Plea , 3 Keb. 672. Bager and Ash .

Against Baron and Feme .

ON Obligation made by a Feme Covert , she shall plead she was Feme Covert , ●nd conclude Issint non est factum , because it was void . 14 H. 4.30 .

Debt port against J. S. and Elianor his Wife , upon Bond made by the Wife ; Defendants plead , quod tempora confectionis , and ●ew the day , she was Feme Covert : Plaintiff confesseth this , but saith she Sealed the ●ame Deed , the same day of her Marriage , before her Espousals in the Morning . Defendant Demurs : Plaintiff had Judgment . 2 Rolls Rep. 431. Jacksons Case .

Feme Obligor of full Age , takes Baron within Age ; In Debt on Obligation they pray his Age ; but denied . Noy p. 96.

On Obligation made by the Wife dum sola ; Issue is found against them ; per Popham the Capias shall only be against the Wife , Noy 13. Amson and Stockburne , on non est factum , Judgment must be quod capiantur , More n. 93● Bardolph and Perry .

Plaintiff declares of Obligation made by the Wife dum sola fuit , the Writ must be in the debet & detinet , for the Baron hath the Goods of the Wife in his own right . 5 Rep. 136. 3 Leon. p. 206. Walcotts Case .

Against an Infant .

Vid. supra titulo , What Persons may , 〈◊〉 may not make Obligations .

Against a Body politique .

IF one will charge Mayor and Comminalty , they must both be Bound . If one oblige himself by the name of Major and Comminalty , the Comminalty is not Bound , and no Goods of the Comminalty shall be put in Execution : So it is of Dean and Chapter ; aliter of Abbot and Prior , for they are Bound tho' the Covent be not Bound , 3 H. 7.11 .

Prior Obligor is made Abbot , Action of Debt is maintainable against him , 9 H. 7.16 . b. Prior of Baths Case .

Against two or three Obligors .

IF three are bound , and the Action is brought against two , the Plaintiff ought to shew that the third is dead .

If two or three are Bound Joyntly , and one dies , the Executor of him that is dead is altogether discharged , Siderfin p. 238. Ofborn's Case .

Debt on Obligation against one , and upon Oyer he and two others were Joyntly Bound ; Demurrer , and Judgment pro Querente , that the Declaration is good ; and it shall come on the other part to swear , that there is another named in the Lien , who is not named in the Writ , Siderfin p. 420. Chappel and Uaughan . Though 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 two other Persons Sealed the Obligation who are yet in full Life , and so pray Judgment of the Bill . 1 Sanders Trin. 21 Car. 2. f. 291. the same Case 3 Crook 494. 5 Rep. 119.

Three are bound joyntly and severally ; upon Action brought against two , the Defendants ought to shew that it was made by them and others in full life , not named in the Writ ; because the Court shall not intend the Bond was sealed and delivered by all that are named in it ; therefore the Defendants cannot demur upon it , though it be entred in haec verba . So it is if an Action be brought upon a Recognizance taken before the Mayor and Recorder , &c. by Stat. 23 H. 8. because there the parties must seal . But in Scire facias against three Ballees upon a Recognizance acknowledged by them and the Principal joyntly and severally : Upon Demurrer the Writ abated , because this being founded upon a Record , the Plaintiff ought to shew forth the cause of the Variance from the Record , as that one was dead , Allen p. 21. Blackwell and Ashton .

Four are bound by these words [ Utrumque nostrum ] the Obligee may charge any of these severally ; but if he will have a Joynt Action against two of the four , the Writ shall abate . Three are bound joyntly and severally , Obligee cannot bring Debt against two , 10 H. 7.16.27 H. 8.6 .

Debt on joynt Bond against the Survivor . The Defendant pleads , one of the Obligors died , and the Plaintiff afterwards released to the Executor ; the Release is void . Aliter , had the Obligation been joynt and several , 1 Keb. 936. Scot and Littleton .

When two are joyntly bound in an Obligation , tho' none of them is bound by himself , yet none of them shall plead Non est factum , for they had sealed and delivered it ; but he may plead in Abatement of the Writ , and every of them is bound in the Entirety ; therefore if they two are sued , and one appears , and the other makes default , and by process of Law he is Outlawed , he which appeared shall be charged with the whole . 5 Rep. 119. Whelpdale's Case .

The Defendant pleads he was bound simul cum R. G. to whom the Plaintiff had released all Actions the said first day of May ( that being the date in the Declaration ) The Plaintiff by Replication shewed , that after the Obligation sealed by R. G. he released to him ; and after ( viz. the same day ) the Plaintiff sealed the Bond , absque hoc quod simul tenetur cum R. G. The Plaintiff demurs ; this Release doth not discharge the Defendant : And per Cur ' the Traverse is ill , because R. G. was bound with the Defendant . But because the Defendant had not taken advantage of it , to shew it on Demurrer , but confess'd it : Judgment pro Querente , Cro. Eliz. p. 161. Mannings and Townsend .

Against a Servant or Receiver .

GOdb . sealed a Bill to E. T. thus : Mem. that I have received of E. T. to the use of my Master , &c. the Sum of 40 l. to be paid at Michaelmass following . E. T. brought an Action upon this Bill . The Defendant demurs to the Declaration , supposing that he receiving it as a Servant to anothers use , he shall not be charged as a principal Debtor : Per Cur ' , The last Clause of the Bill is for payment of the Mony generally , ( and doth not say , to be repaid by his Master , ) and so shall bind him that sealed it , 1 Brownl . Rep. 103. Talbot and Godbolt .

Of Actions and Suits . Action brought before Cause of Action .

THe Writ was dated Mich. 30 Eliz. The Condition was , if F. died before the Age of 21 years ; then if the Defendant caused an 100 l. to be paid to H. within three Months after the death of F. then , &c. F. died 30 Septemb. 30 Eliz. The Plaintiff hath no cause of Action , as appeareth by the Record , 1 Leon. 186. Woodshaw and Fulmerston .

Condition to pay an Annuity at Lady-day , or within twenty days after . Issue being joyned on a Collateral matter , and found pro Quer ' . It was moved in Arrest of Judgment , that the Original was brought the 8th of April ; and he alledgeth the Breach to be Lady-day last past , which was within the twenty days , and so the Action brought before he had cause of Action : Apparent fau● Cro. Eliz. 565. Blunden's Case .

After Verdict and Judgment , it was assigned for Error , that the Teste of the Original was before the day of payment in the Condition , Judgment was reverst , M●r● N. 776. Williams and Buckley , Cro. Eliz. 325 , mesme Case .

If there had been no Original , it had been good after Verdict ; but this is not aided by Stat. 18 Eliz.

Bill Filed before the Obligation dated , the Record was amended , Siderfin p. 252. Manning and Warren .

Joynder in Action , Vid. supra sparsim .

Bond where suable .

BOnd made in Virginia , in partibus transmarinis ; it may be sued in the Admiralty , 2 Rol. Rep. 497. Tucker and Caps .

Vid. supra . Et supra tit. Pleading to the Jurisdiction .

Declarations .

PEr Stat. 6 R. 2. it s provided , the Original shall not be laid in one County , and the Declaration upon a Bond made in another County ; if so , the Writ shall abate . Therefore if one plead the Bond was made in another County , than where it was alledged in the Declaration , it s an ill plea , Allen , Hill . 22 Car. p. 17. Shalmer and Slingsby .

In Debt on Bond , the place of the making of the Obligation ought to be shewed in the Count ; but if the Defendant plead Duress or Acquittance ( by which he confesseth the Deed ) this makes the Count good , 28 H. 8. Dyer 14.

In Debt on Bond , Annuity or Praecipe of a Rent-charge , the place where the Deed bears date , ought to be alledged . Aliter of a Release of Lands or Rent , for this is Executory upon the possession , 5 H. 7.14 . 28 H. 8. Dyer 14. 14 H. 8.16 . a.

To be paid at his Mansion-house , &c. this may be paid at any place , 3 Bulstr. 244. Meletine and Hall .

Surrey was in the Margent , and the Defendant in the Declaration was named of D. in the County of Sussex , and that he made that Obligation at D. in Geni . pr●d . and on Non est factum it was tryed in Surrey , and Error assigned ; because Com' praed ' refers to the County last named : Non allocutur ; for it shall have relation to the County where the Action is brought , and that named in the Margent : For the other County mentioned was by way of Recital , and so it shall not relate thereto , Cro. Eliz. 481. Shirly and S●c● vile .

Time .

A Declaration upon an Obligation , made ultimo die Augusti ; upon Oyer of the Bond it bore Date the 19th of August . The Defendant pleaded Non est factum , the Jury found it his Deed , and the Plaintiff had Judgment : For the Count was not of the date , but of the making , and the Jury have found the Deed , Hobart p. 249. Thorp and Taylor .

A Bill Filed before the Obligation dated , the Record was amended in B. R. Siderfin p. 252. Manning and Warren .

An Obligation made to accord with the Indenture of Covenants in point of Time , with Averment there was no other Indenture , 3 Keb. 117. Countess of Falmouth .

Form of the Declaration .

IN the King's Bench it is said , Sigillo suo sigillat ' ; but in the Common Pleas it is , Per scriptum suum Obligatorium concessit se teneri , &c. without saying , Sigillo suo sigillat ' ; delivery is never alledged ; and when it 's said , Per scriptum suum Obligatorium , all necessary Circumstances are intended to concur , viz. Sealing and Delivery , otherwise it is not a Writing Obligatory , Cro. Eliz. fo. 737. Penson and Hodges . 2 Keb. 630. Cubitt and Green .

Three bring Debt , and declare that the Mony was not paid to them , and say not , Nec alicui eor●m ; yet it 's good ; For payment to one , is payment to all the Obligees , Noy p. 69. Warner's Case .

Debt of 300 l. upon two Obligations , dated 20 December , to pay 150 l. &c. and averred he had not paid it , and did not say [ Nor any part of it ; ] yet good , Winch p. 72. Foster's Case .

The Plaintiff declared , that the Defendant such a day , concessit se teneri , &c. & profert hic in Curia scriptum praedictum quod debitum praed' , &c. The Defendant demands Oyer of the Condition , and pleads payment ; after a Verdict , Judgment pro Querente . It was assigned for Error , because he doth not declare according to the usual Course , Quod per scriptum suum Obligatorium concessit , nor any Writing mentioned in the former part of the Declaration , Sed non allocatur . The Writings are produced , and the Defendant by his Plea shews , it 's an Obligation with Condition ; and it appears to the Court , that the Plaintiff hath a just Debt , and good cause to recover . Cro. Car. 209. Sir William Courtney's Case .

In Debt sur Bond , the Defendant confess'd the Action ; and because it 's not said in the Declaration , Hic in Curia prolat ' , it was adjudg'd a fault in Matter , and Error , Cro. Jac. 32. Dawbenny and Bannister . Vid. le nove● Statute .

If a Bond be made to one , and he doth not say in the Bond , it shall be paid to the Obligee , in this case the Plaintiff must shew that it is to be paid to him , tho' not expressed in the Bond , 1 Brownl . 72. Anonymus .

If any of the Bond be received , it must be acknowledged in the Declaration .

Debt on two Obligations , one was 100 l. the other 110 l. and he brought an Action generally of 200 l. upon these Obligations , and acknowledgeth satisfaction of 10 l. but sheweth not of what Obligation it was that he acknowledgeth the payment of 10 l. it s no Error , 1 Rols Rep. p. 423. Hale and Maly● . vid. 3 Bulstr . p. 244.

Plaintiff declares upon a Statute Obligatory , Solvendum upon Request , and on Oyer it appears to be payable at a day certain ▪ Incurable fault , Crook Jac. 316. Fox and Inkes .

Debt upon a Bill of 14 l. Solvendum 〈◊〉 cum 6 l. upon Account between them , the Plaintiff only declares for 14 l. and good for that which comes after the Solvendum is void , Crook Eliz. 537. Woodward and Parry .

Declaration is upon three several Obligations , and upon Oyer of the several Conditions , it appears one of the sums in the Condition , was payable after the Bill exhibited . Issue was joyned on Conditions performed , and Verdict for the Plaintiff , and intire Damages ; and upon Release of Costs and Damages , Judgment was given for the two first Bonds only : For tho' the Bill be an entire sum , yet by the Court it appeareth , they be as several Demands and Suits , Hobart p. 178. Andrews and Delahay . 1 Brown . 68. Mesme Case .

One Declaration is naught : After appearance the Plaintiff pleads de novo , Noy p. 63. Rossiter and Bussey .

In B. R. the first Declaration was in Debt on Obligation , 5 Feb. and the second was on an Obligation dated 15 Feb. and the pleading and Judgment was thereupon , and held good , for it was held as a Declaration without an Original , which being after Verdict was ayded , Crook Jac. p. 89. cited in Sir Michael Dormers Case .

Debt on Bond dated 13 Feb. The Defendant imparles , and after a second Declaration was made , and therein he declares on an Obligation dated . 15 Feb. Defendant pleads non est factum ; it was amended and made according to the first Declaration ; for the first is the principal , and the Plea always refers thereto , Crook Jac. p. 105. Burrel versus Sir William Bowes .

Debt by Baron and Feme on an Obligation made to the Feme dum sola fuit , and the Declaration is ad damnum ipsorum , its good , Stiles 134 Anonymus .

In Debt due upon a Bond or Contract , there needs not a special Demand to be laid , but licet saepius requisitus is sufficient . Aliter if it were due by Arbitrement cum requisitus fuisset , for then there must be a special demand , Cro. Jac. 640. Waters and Bridges 1 Brownl. 30.

In inferior Court of Record 50 l. in figures is Error , Stiles p. 165. Joson and Beale .

A thing that doth not intitle the Plaintiff to Action , need not be contained in the Count. If the Condition be Endorsed or Subscribed , it need not be contained in the Count ; but if it be contained before the ( in Witness ) then it ought to be contained in the Count. If a Man be bound to pay 10 l. when the Obligee carries 200 Load of Hay to his House ; there the Condition is precedent , and it ought to be contained in the Count : What comes after the in Witness , be it a Proviso or Memorandum , it may be as a Condition or Defesance , and need not be contained in the Count , 2 Brownl . Rep. 97. Hammond and Jethro . Be it known that J. C. bind me to R. in 40. l. to discharge and save harmless the said R. against W. Solven● tali die , &c. there the Count is good , generally , without saying the Defendant had not saved harmless , 22 Ed. 4.42 . One ought to declare specially according to the Bill ; the Bill was , to pay as I pay my other Creditors : The Plaintiff declared generally , that he was indebted to him in 5 l. Solvend ' upon request : It s ill , Cro. Eliz. 256. Bright and Metcalf .

Declaration for Outlandish Mony .

DEclares upon a Bill Obligatory , wherein the Defendant was obliged to pay him ●00 Gilders of legal Mony Polonish ( viz , ) ad valorem 220 l. legalis monetae Angliae , and that the Defendant had not paid unto him the said 220 l. monetae Angliae , nor the said 600 Gilders monetae Poloniae , per quod A●ti● accrevit , &c. Defendant pleaded non , est factum , and found pro Querente , and the value of the Mony was enquired by the Jury ( viz. ) that the value of the 600 Gilders Polish , was at the time of the Bill and now , 220 l. The Action is well brought in the de●in● , because he is to recover the value , and the demand is not of any sum certain , Cro. Jac. 617. Rands and Peck . Cro. Eliz. 536. Bayshaw and Plaine . Latch p. 4 . 77.8● Wards Case .

The Court cannot compel the Plaintiff to set forth the Condition in his Declaration , but till he doth it on Oyer demanded , the Defendant shall not be compelled to plead , Stiles 125. Sir Charles ●ot and Plunket . On Oyer demanded unless the Plaintiff will shew the Bond , the Court will set aside the Judgment as irregular , 2 Keb. 275. Beadly and Beach .

When the Plaintiff counts on Bond , it ought to remain in Court , unless the Defendant after Oyer demanded suffer it to be delivered out , then on non est factum , the Court will not order it to remain there on prayer of the Defendant , although anciently it hath been so , 1 Keb. 486. Williams and Hulle● .

In Debt on Bond to deliver up Goods in a Schedule annexed ; per Cur. on demand of Oyer of the Condition , they shall have also Oyer of the Schedule , being all as one D●ed ; but Oyer of Indenture for performance of Covenants , shall not have Oyer of the Covenants , but yet must set them forth , and if he have no counterpart he may move the Court and obtain it , 2 Keb. 4. Waterman and Adams .

Variance between the Obligation and Declaration .

DEbt on Bond , the Plaintiff declares of a 1000 l. to be paid to him , and the Defendant demands Oyer , and he was bound to J. R. to be paid to J. K. to the use of J. R. The Defendant Demurs ; the Solvend ' to the Stranger is void , and the Court seem'd pro Querent● 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 Waller .

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 Mar●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 Jo●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 into the Court by the Plaintiff , nor appears to be in Court omnino : Per Cur ' , This is aided per Stat. 27 Eliz. c. 5. upon general Demurrer ; but per Cur ' the Defendant ought to have shewed the Deed , and not the Plaintiff , by Law , although the Court sometimes will compel the Plaintiff to give a Copy of an Indenture to the Defendant , if he swear that he never had a part , or had lost it : But this is ex gratia Curiae , not ex debito Justiciae , for the Entry always supposeth this to be brought in Court by the Defendants ; and so 7 H. 4.1 . that the Plaintiff in such case ought to shew the Indenture , is no Law at this day , 1 Sanders 8 , 9. Jevans and Harridge , 2 Keb. 1 16. mesme Case . Demand Oyer , to save the advantage of Demurrer pur . Variance , 1 Keb. 426. Billage and Blake .

The Defendant prays Oyer of the Condition , which is for performance of Covenants , in an Indenture made between the Plaintiff on the one part , and H. H. on the other part , on the part of the said H. H. to be performed , and upon Oyer of the Condition the Defendant pleads , that the Indentures were made between the Plaintiff and the said H. H. such a day and place , and one part under the Seal of the Plaintiff the Defendant brought in Court ; and further , that there were not any Covenants in the said Indenture , of the part of the said H. H. to be performed , Et hoc paratus , &c. The Plaintiff prays Oyer of the Indenture per the Defendant brought in Court , which is entred in haec verba ; and upon this it appears that there are divers Covenants to be performed on the part of H. H. and upon Oyer of the said Indenture , being so entred , the Plaintiff demurs . It was urged for the Defendant , That the Plaintiff ought to have shewed a breach of one of the Covenants , to maintain his Action : But per Cur. when the Defendant brought the Indenture into Court , and saith there are no Covenants in it , &c. Now upon Oyer of this , the Indenture is made parcel of the Plea ; and by this it appears Judicially to the Court he had pleaded a faux Plea , and had taken an Averment against the truth of that that appeared to the Court by the Indenture it self ; and so the Plaintiff need not shew any matter of Fact in his Replication to maintain his Action , but a Demurrer was more proper , 1 Sander's 316. Smith and Yeomans .

Condition to perform Covenants in an Indenture , i. e. to pay 300 l. and to Repair as three shall award . The Breach was , that Award was made , and the Defendant had not Repaired . The Defendant prays Oyer of the Indenture , which was well , and of the Award , and sets it forth untruly . The Oyer was set aside , because Irregular ; and if the Award be not at first truly set forth , the Defendant might traverse it , but cannot pray Oyer of any thing not in Curia prolat ' , 3 Keb. H. 28 Car. 2. p. 716. Sands and T●mlinson .

Le Defendant demand Oyer del Oblig' , & de Condition ; la form , 2 Sanders 75.

Le Defendant demand Oyer des 2 Oblig' , & Demur' , 1 Sanders 282.

Defendant ad Oyer de Condition de Oblig' , & apres ad Oyer des Instructions , 2 Sanders .

Le Defendant sur Oyer del' Condic' a performer Covenants amesne en Court le Indenture , & plede Conditions performe , 1 Sanders 52.

Monstrans de Obligation , Rast Entr. 180. b.

Condition . Where a Recital in a Condition shall be an Estoppel .

BY a bare Recital in an Obligation , one shall be Estopped , 13 Ed. 4.4 .

A Recital by a single Bill shall estop the party , 25 Ed. 4.54 .

Recites by an Obligation , that he made a Will , he is estopped to say the contrary , 2 & 3 El. Dyer 190.

As to Estoppel by Recital , there is a difference where it goeth in the generality , and where in the particularity : For where it is in the generality , as to enfeoff one of all the Lands descended to him , or to be Nonsuit in all Actions depending in the Common Pleas , he shall not be estopped to say that he hath not any Land , or that he hath not any Action depending there , 18 Ed. 4.4 .

Against a Condition to perform all Covenants , a man may say there were not any Covenants , 21 H. 4.54 .

Condition to pay Rent reserved upon a Demise , according to such Articles . The Defendant pleads , he hath not any thing in the Land demised by such Articles : Per Cur. upon demand he shall be estopped to plead that , Cro. El. 3. p. 362. Strowd versus Willis . Popham p. 114.

Condition , whereas E.W. hath commenced divers Suits in B. R. against W. H. If the said W. H. shall without delay by his lawful Attorney appear , and make answer to all Actions and Declarations commenced against him , that then , &c. The Defendant pleads , That postea ( viz. ) such a day W. H. appeared , and paratus fuit respondere C. but that there were not any Actions there depending . Upon Demurrer ; per Court , ill Plea . He is estopt to plead , that there were not any Actions there depending . As if a man be obliged to perform the Covenants in the Indenture on his part to be performed ; it 's no Plea to say , there were not any Covenants on his part to be perform'd , 3 Eliz. Dyer 196 , & 279. Cro. El. p. 756. Willoughby versus Brook , p. 42 Eliz. C. B.

Condition to perform Covenants in Indentures between W. S. and A. his Wife of the one part , and the Plaintiff on the other part . The Defendant pleads the Indenture , as the Indenture of W. S. and A. his Wife ; whereas , in truth the Feme never sealed . The Plaintiff replies , That the Indenture shewn by the Defendant non fuit fact' inter W. S. & A. his Wife , on the one part , and the Plaintiff on the other . Per Cur. the Plaintiff is not estopped to say , that the Deed shewn , is not the Deed of the Baron and Feme ; but he is estopped by the Condition to say , that there is not any such Indenture , Cro. El. p. 769. Ship versus Steed .

Condition was , Whereas the Plaintiff had carried so many Thousand of Billets for the Defendant to D. amounting at so much a 1000 to 100 l. If the Defendant therefore should pay the 100 l. The Defendant pleads upon Oyer , that the Plaintiff did not carry and deliver so many Thousand of Billets , &c. Per Cur. this Recital in the Obligation , is an Estoppel to the Defendant to plead the contrary , Stiles 103. Allen 52. Hill. 23 Car. 1. Hart versus Buckminster .

The Defendant pleads in Abatement , that he is Earl of Nova Albion in Ireland , and ought to be impleaded by that Name , and not by the Name of Edmund Plowden Kt. Per Cur. He pleads he was Earl of Nova Albion in Ireland , before he entred into the Bond , which he cannot now plead , for he is estopped to plead so by his own Deed , which testifies the contrary , Stiles p. 187. Weston versus Plowden .

Condition , If the Defendant and his Wife should appear such a day at the Palace Court , &c. The Defendant upon Oyer pleads , That he himself did appear at the day , prout patet per Record ' , and that he was not Married at the time of the Obligation , nor ever after . Per Cur. it 's no Plea , for he is estopped to deny that he had a Wife , Allen p. 13. Paine and Shelltrop .

Recital in a Bond , is an Estoppel to say the contrary ; but if Issue be tried contrary , it 's good : As , Non damnif . pleaded in Debt on Bond , with Condition to pay for Meat , Drink , &c. The Plaintiff replies , Quod hospitavit , on which the Defendant takes Issue , quod non hospitavit , and Ruled good after Verdict , 1 Keb. p. 344. Holt and Harder .

Debt on Bond to perform Covenants , specified in an Indenture betwixt A. and B. The Defendant pleads , there was no Covenants . Per Cur. this being generally of all , is well . Contra , If it were to perform any certain Covenants ; but the party is estopt to say , there is no Indenture , but he must set forth the Indenture it self : But the Plaintiff shewing the Indenture , if any Covenants be therein , the Jury must find for the Plaintiff , 1 Keb. p. 381. Brazier and Acton .

Condition , That a Stranger shall release all his Right to the Plaintiff . The Defendant pleads , that the Stranger had no Right . The Plaintiff demurs : Per Cur. he is estopt , and the Plaintiff must release whether he have Right or no , 2 Keb. p. 471. Doughty and Neale

Debt on Sheriff , Bond , to appear in B. R. according to custom , at the Suit of M. in Debt . The Defendant pleads , there is no such custom in B. R. to appear to an Ac etiam Billa . He is estopt to plead this , 3 Keb. 160. Forth and Ward versus Walker .

Condition , to pay and satisfie out of the Profits of the Coal-Mines clear . The Defendant pleads , there were no clear Profits . The Defendant is not estopt by the Bond to plead this , being general , 3 Keb. p. 466. Howard and Wych .

Condition to pay a Legacy devised by the Last Will of J. S. The Defendant pleads , it 's true J. S. did by his Last Will give the said Legacy ; but saith , that J. S. did revoke that Last Will , and after died , and by the later left nothing to the Plaintiff . Demurs ; because being intended a Bond made after the death of J. S. the Defendant is estopt by the Condition of the Bond to say , there was no such Last Will , especially no time of either Will being mentioned . Which the Court Agreed . And if the Bond were before J. S. died , the Defendant hath undertaken , and must pay it at his peril , 3 Keb. 303. Bachwell and Barjew . Mod. Rep. 113.

Condition to pay Mony yearly , according to the form and effect of the Indenture , made between the Plaintiff and Defendant . The Defendant pleads , there was no such Indenture . He is estopt to plead so , 1 Brownl . 57. Fitch and Bissye .

The , Defendant was obliged to make an Obligation to appear in B. R. at a day prefixed in the Writ : The Defendant pleads , there was no day prefixed in the Writ for his Appearance . He is estopt to plead thus , 1 Brownl . 91. Andrews and Robins .

If a man be bound to pay an hundred Pounds that J. S. owes to him ; he cannot plead that J. S. doth not owe him 100 l. Per Williams in Andrews's Case , 1 Brownl. 41.

Condition to perform things for which he was bound in a Recognizance : He is concluded to plead , that he is not bound in any Recognizance , 2 Rep. 33. Doddington . 1 Rol. Rep. 83. Fletcher and Farrer .

Condition was , That if the Defendant do not commence and prosecute any Suit in any Court , Spiritual or Temporal , against the said A , his Wife ; but shall from henceforth , during the Natural life of him and A. his Wife , use and maintain the said A. as his lawful Wife to all intents , that then , &c. The Defendant pleads , he had not brought any Action , &c. after the Obligation ; and that before the said A. was married to him , she was married to J. S. who is yet alive ; for which cause he cannot maintain and use the said A. as his lawful Wife . Upon which he Demurs . Per Cur. The material part of the Condition did consist in the first part , and the Defendant having pleaded an issuable Plea to that , it 's not material if he plead to the Later part or not : And if his Justification be insufficient , the Plaintiff ought not to have demurred upon it . But the Court held the Justification good , and he is not Estopped to plead the special Matter of her former Marriage ; because she is called Wife in the Condition , for he may confess and avoid it : For she may be his Wife to some purposes , but not to use her as his lawful Wife , Mo. N. 652. Phratt and Planner .

One is bound to J. S. to enfeoff him of the Manor of D. in Debt upon this Bond , he shall not say , he had not such a Manor of D. Aliter if one be bound to enfeoff me of all his Lands in such a County , 21 Ed. 4.54 . b.

Pleadings .

IN treating on this , I shall lay down some general Rules and Diversities , and apply cases thereunto , and afterwards speak of special Pleas , as Acceptance , Release , Payment , &c. and particularly how and where Non est factum may be pleaded ; and also of Foreign Pleas. Though in all the precedent Cases , I have had an Eye still to the Pleadings under the proper Titles , and shall make reference thereto as occasion shall be .

As to the Rules of Pleading : I shall consider , Of Pleading or Performance generally , and where it must be pleaded specially and particularly . In what cases it must be shewed , how and where performed and done . Of the Certainty of Pleading , and where it must be pleaded according to the express words of the Condition or Covenant , and where further than the express words . Of the partes Placitorum .

I shall observe some diversities , which will better be understood in the application of the following Cases . Qui bene distinguit , bene docet .

1. There is diversity between Pleading in the Negative and in the Affirmative .

2. Between Pleading to Negative Covenants , and to Affirmative Covenants .

3. Between a Condition precedent and subsequent .

4. Between a Condition to do a Collateral act ; as to make a Feoffment , render Account , &c. and where it is to pay Mony .

5. Where the Mony in the Condition is a collateral Sum , and where it is parcel of the Obligation .

6. Between a Condition Copulative and Disjunctive .

7. Between payment or performance by or to a Stranger , and payment or performance by the Obligor to the Obligee .

8. Where an Obligation is void , and where voidable .

9. Between a delivery to the party himself , and delivery as an Escrow .

10. Between acts to be done by a Condition , which are Transitory or Local .

11. Between a Condition void against Common Law or Stature Law .

12. Between where the Obligation is void , and where the Condition is only void , and the Obligation single .

13. Between a Bargain and a Loan .

14. Between a Bill Obligatory , and an Obligation with a Condition . Vid. supra titulo Bill .

Where Performance generally may be pleaded , and where it must be shewed specially , and how performed .

IF a man be bound to perform all the Covenants in an Indenture , if all be in the affirmative , he may plead General performance of all ; but if any be in the negative , to so many he ought to plead Specially , ( for a Negative cannot be performed ) and to the rest Generally , Doct. pla●itand. 57 , 58.

So if any of them are in the Disjunctive , he must shew which of them he hath performed ; and if any are to be done of Record , he ought to shew this Specially , and may not involve it in General pleading , Ibid. But ,

If the Defendant pleads Performance generally , and the Plaintiff demurs , and shews some Covenants are in the Negative , and some in the Affirmative : As to the Covenants in the Affirmative , he ought to plead a Special performance , and to shew how he hath performed them . Judgment pro Quer. Stiles M. 1649. p. 163. Fines and Dell. Allen , Hill . 23 Car. p. 72. Ellis and Box , Lit. Rep. p. 2.

Upon a Bond for Performance of Covenants generally , H. may plead General performance ; but when to does any particular act , he must answer certainly , 1 Keb. p. 111. Sir George Bellison's Case .

☞ A diversity between the Condition of an Obligation which consists of several parts , and Covenants in an Indenture which consist of several parts in the Affirmative : For in the case of Covenants , Performance generally , is a good Plea ; but in the case of the Condition of an Obligation , the Defendant ought to shew in pleading , that he had performed the several things comprized in the Condition particularly : As the Condition was , that the Defendant shall deliver such Briefs to all Churches , &c. before such time , &c. and to deliver the Mony collected . The Defendant pleads Performance generally : Ill Bar ; for he ought to have pleaded particularly what Sums he had received , to the intent he may give an account : And so , if in his Bar he had said , He delivered the Briefs , and saith not at what time , Siderfin p. 215. Woodcook and Cole .

On Affirmative Covenants general pleading and Performance is sufficient ; and so on Negative ; per Twisden , 1 Keb. 413. Nicholas and Pullen . Qu. Vide Palmer's Rep. 70. Ley and Luttrel , contra .

See more of this Learning of Covenants , being in the Negative and the Affirmative , in 10 H. 7.12 , b. 16 H. 7.11 , a. 4. H. 7.12 . & supra .

Covenant , that he shall go in such a Ship to , &c. and the words are , Quod decederet , procederet , & non deviet . The Defendant pleads Performance generally , it 's not a good Plea . As to a Negative Covenant , which is only in affirmance of the Affirmative Covenant precedent , Performance is a good Plea . But as to a Negative Covenant , which is additional to an Affirmative Covenant , as here , he ought to plead Specially , Siderfin p. 87. Laughter and Palmer .

If a Man Plead in the Affirmative , he hath saved the Plaintiff harmless , he ought to shew how ; aliter if he Plead in the Negative non damnificatus , 5 Rep. 24. Broughtons Case . 2 Rep. Mansers Case . 4 H. 7.12 Cro. Eliz. 916.

If a Man Plead a Discharge , he must shew how , 2 Rep. Mansers Case ; 〈…〉 be bound to Discharge an Obligation of 100 l. the pleading of a general Discharge , without shewing how ( viz. ) by release or otherwise , is not good , 35 H. 6.10 , 11. The Defendant Pleads , he tendered a Discharge to , &c. and he refused , &c. he ought to shew what Discharge it was , 22 Ed. 4.40 . per touts les Justices .

Conditions is , that the Defendant shall ratifie and confirm such a Demise , it s not sufficient to say , he had ratified and confirmed it , but he ought to shew how , and Plead the confirmation by Deed , 6 Eliz. Dyer 229. b.

Condition is to pay all such Arrears , &c. it s not sufficient to say , that he had paid all , &c. but he ought to express it certain , how much Arrears he had paid amounting to such a sum , 20 H. 6.31 .

Condition to perform such a Will , he Pleads he had performed the Will , and recited it not , nor saith how , and not good , Litt. Rep. p. 2.

Condition to save O. harmless , &c. and to deliver up the Bond , and to acknowledge satisfaction of a Judgment when paid ; The Defendant protestando he hath sayed O. harmless , pro plit' dicit , he hath performed all the Conditions : The Plaintiff replies , he had not delivered up the Bond : The Defendant Demurs , no Averment being that the Mony thereon was not paid ; so no breach . Per Cur. the Bar is naught by general performance , and the Replication not destroying the cause of Action shewed in the Count is well enough , 2 Keb. 720.

If I am bound to enfeoff J. S. of the Mannor of D. in Debt sur Obligation if the Defendant Plead performance , he ought , to shew where the Mannor of D. is , 15 Edward 4.14 . b.

If the Condition be to discharge the Plaintiff , &c. then the manner of the discharge ought to be shewed : But if it be to save harmless only , then non damnificatus generally is good enough , 1 Leon. Case , 95. p. 71. Bret and Audard . So where the words are , Acquit , Discharge , and save harmless , &c. non damnificatus is an insufficient Plea , and it s not sufficient only to answer to the Damnification , ibid.

If I am bound to convey to you the Mannor of D. in Pleading the performance of the Condition , it s not sufficient to say , I have conveyed the same Mannor , but to shew by what manner of conveyance , 22 Ed. 4.43 . cited 1 Leon. p. 72.

Condition to pay so much yearly for an Instrument of Weaving , and to deliver it up at the end of the Term ; the Defendant Pleads , general performance ; per Cur. they must be specially answered , 2 Keb. 387. Brown and Tadderby .

But in many Cases , the Law allows general Pleading , to avoid prolixity , and the particulars shall come of the other part , as Cro. Eliz. p. 253. Acton and Hill . And therefore , he who Pleads in the Affirmative , shall alledge performance of Covenants generally : As Condition was , if the Defendant at all times upon request , delivered to the Plaintiff all the Fat and Tallow of all Beasts , which He or his Servants should Kill , or Dress before such a day , that then , &c. The Defendant pleaded , that upon every request made unto him , he delivered to the Plaintiff all the Fat and Tallow of all Beasts which were Killed by him , &c. Per Cur. the Plea is good , Cro. Eliz. 749. Mints and Bethel . In the case of Sheriffs , one need not shew how he saved him harmless , because of the infiniteness .

Condition to pay a Moiety of Charges at Suits in Law , &c. the Defendant pleads payment generally , 2 Keb. 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 Judgment of the Bill ; for that the Plaintiff in the Obligation was named J. Thorny de . F. in Com. N. Armig ' , and in the Declaration was named J. Thorny Armig. and no more . Respond . ouster awarded , Cro. Eliz. 312. Thornough and Disney .

After Imparlance one cannot plead in Abatement of the Writ , Stiles 187. Weston and Plowden .

Per Stat. 6 R. 2. c. 2. it 's provided , that the Original shall not be laid in one County , and the Declaration upon a Bond made in another County , if so , the Writ shall abete : But it s no good Plea to say , that the Bond was made in another County than where it s alledg'd in the Declaration , Allen p. 17. Shalmer and Slingsby .

If the Defendant pleads a Plea in Abatement , as in Debt upon Bond , that another was joyntly bound with him , who is in full life not named , and concludes in Bar ; Judgment shall be final against him , Siderfin p. 189. Burden and Ferrars .

Debt on Obligation against the Defendant , Knight and Baronet . The Defendant pleads , he never was a Knight , in Abatement . No Amendment granted , but in Nil Cap. per Billam awarded ; because tho' the Defendant after Bail put in by himself , generally he cannot plead in Abatement ; yet when the Bai is Special , or put in by another , he may plead in by Abatement . Judgment pro Def. 2 Keb. 824. Sir William Hicks's Case .

Pleads , that the Plaintiff , puis darrein continuance , was made a Baronet , Cro. Car. p. 104. Simon Bennet .

A Plea may be a good Plea in Abatement , though it contain Matter that goes in Bar , Med. Rep. 214.

In Debt sur Oblig ' against J. S. de S. it 's a good Plea to say , that there are two Vills S. within the County , and none without Addition , 14 H. 6.8 . a.

In Debt sur Bond. The Defendant pleads , that after the Writ purchased , the Plaintiff had received parcel , and shews the Acquittance , the Writ shall abate in the whole ; and notwithstanding it 's a good Plea in bar , as to this part , Doctrina placitandi p. 5.

Vide pluis in titulo Payment . infra , Payment of parcel , pendant le Suite .

Two bring Debt on Obligation , the Defendant pleads the Obligation was made to them and to one B. and that they three had an Action of Debt depending against him , and demands Judgment si actio . Demur . And because the Obligation was made to two , upon which they counted , it cannot be intended an Obligation made to three ; and if it be a Plea , it 's in Abatement of the Writ , and not in Bar. Judgment pro Querente , Cro. Eliz. Isham's Case .

Debt against J. S. de D. Yeoman . It 's no Plea to say there are two , J. S. of D. Yeom Sen. and Jun. and none without addition : For the Action accords with the Obligation , which is J. S. de D. Yeoman without distinction , 9 H. 7.21 .

Pleas after Imparlance .

IN Debt on an Obligation , the Defendant imparles till next Term , after he may plead , that the Plaintiff is Outlawed : For the King shall have the Debt on Bond. Aliter in Trespass , or Debt , or simple Contract , 16 Ed. 4.4 . a. per Bryan .

Debt against J. S. de D. The Defendant imparles ; he may after say by Attorny , Upper D. and Nether D. and none without addition , 18 Ed. 4.9 . 21 Ed. 4.1 . b. contr .

Variance between the Obligation and the Writ , may be pleaded after Imparlance in another Term , for the Bond always remains in Court ; but after Imparlance , Variance between the Testament and Letters of Administration shall not be pleaded ; for the Testament shall be but once shewed in Court , 36 H. 6. 32 , 33. 38 H. 6.2 . 19 H. 6.7 .

The Defendant Imparles till another Term , and then he pleads Tender of the Mony at the day and place , and that no person was there to receive it , and that he is now ready , and saith not Touts temps prist ; yet it 's a good Plea : For he had excused himself of the Forfeiture by this Plea , and no Estoppel shall be by the Imparlance , to plead that he is now ready , Doct. placitand . 388 , 389.

In Debt on Bond , the Defendant imparles Specially , scil. — salvis omnibus & omnimodis advantagiis — and after he pleads the priviledge of the Exchequer , that he was Surveyor there : Per Cur. he cannot plead so , Siderfin p. 318. Trussel and Maddin . 2 Keb. 103.

A Plea in Abatement ought to be pleaded before Imparlance : As , the Defendant to Debt on Bond appears and imparles , and after Imparlance pleads , that he is Earl of Nova Albion in Ireland , and ought to be impleaded by that Name , Stiles p. 187. Weston and Plowden .

After Imparlance , the Defendant pleaded in Abatement , that one Vincent , not named , sealed , &c. It 's no Plea after Imparlance , and a Respond' u●ster awarded , 2 Keb. 795. Putt and Nosworthy .

Debt for 300 l. The Defendant after a general Imparlance demands Oyer , and pleads Specially it was but for 30 l. Non allocatur after general Imparlance ; then the Defendant pleaded Non est factum , which was the proper Plea in the Case , 1 Brownl . p. 70.

It was Ruled , that after Imparlance in Debt upon Bond , the Defendant shall be received to plead , that he was always ready to pay ; tho' 13 Eliz. 306. Dyer seems contrary , and was so urged .

Replicatio Querentis , That the Defendant ought not to be admitted to plead a Variance between the Declaration and the Bond , in abatement , after Imparlance general , Modus Intrandi , p. 200.

Obligations . Pleadings . Acceptance , Coneord .

COndition to deliver twenty Quarters of Wheat : The Defendant pleads , that pendente billa the Plaintiff had accepted fifteen Quarter , and demands Judgment of the Bill : No Plea , for it 's Collateral , and not parcel of the Sum contained in the Obligation ; and if it be a Plea , it is in bar , and not in abatement , Cro. M. 33 , & 54 El. Stone versus Radish .

Issue is taken , that he had not accepted ; now though it s no Plea , and so no Issue ; yet it s helped by the Statute of Jeofails ; and the Plaintiff had Judgment , Cro. El. p. 260. M. 33 & 34 El. Andrews and Kinck .

Debt pro. 7 l. the Defendant pleads solvit ad diem . The Jury find 50 s. parcel of it paid , and that the Defendant then delivered to the Plaintiff certain Hats to the value of the residue , which he accepted . It was Adjudged against the Defendant , for this is no payment , he might have pleaded it specially , Cro. M. 35 & 36 El. Tiblethorp and Hunt .

Debt fur single Bill : The Defendant pleads , he enfeoffed the Plaintiff of Lands in satisfaction of that Debt . The Plaintiff demurs : Per Cur. it 's a naughty Plea to a single Bill ; otherwise , had it been upon a Bond with a Condition to pay Mony , 1 Brownl . 70. Glyver and Lease .

Debt sur Bond : The Defendant pleads another Bond given to the Plaintiff in satisfaction of that Bond , and acceptance at the day of payment . Ill Plea ; for one chose in Action cannot be given in satisfaction of another , unless it were payable at a day before the other Debt , 2 Keb. p. 804. Street and Buckner . 1 Brownl . p. 47. Lovelace's Case , Stiles p. 339. Brock and Vernon , More N. 1147. 2 Keb. p. 804. Street and Buckner , Vid. pluis Litt. p. 58. Ene's Case , 5 Rep. 44. Lord Cromwell's Case , cited in Higgin's Case . No , though a Stranger give the Bond , 1 Brownl . p. 71. Hawes and Birch .

If Issue be joyned on the acceptance , and the Plaintiff be Nonsuit . Q. If this Plea be such a Confession of the Action , as the Plaintiff shall have Judgment , Hobart p. 68 , 69. B. R. Lovelace and Colket , Randiff and Strutt .

The Defendant pleads , that the Plaintiff after the day of Payment , and before the Writ brought , did accept of a Statute-Staple for the same Debt , in full satisfaction of the Obligation . It 's an ill Plea ; for a Statute is but an Obligation of Record , and cannot drown another which is not of Record , Sir R. Brainthwait's Case , cited in 6 Rep. 44. b. Higgin 's Case . Vid. Co. Lit. 212. b. 5 Rep. 117. b. contra .

Payment of a lesser Sum , and acceptance in full satisfaction pleaded ; you may either traverse the payment , or the Acceptance ; but it s more proper to joyn Issue upon the payment , Stiles p. 239. M. 1650. Boys and Cranfield .

Condition to pay 10 l. to a Stranger by Michaelmass . The Defendant pleads payment of a lesser Sum before the day to him . The Plaintiff demurs ; the Plea is ill as to a Stranger , 2 Keb. p. 628. P. 22 Car. 2. Chapman and Win.

Debt pro 43 l. The Defendant pleads 39 l. paid before the day , which the Plaintiff accepted in satisfaction : The Plaintiff joyns Issue , Non recopit in satisfactionem : The Defendant Demurs , it 's ill . He should have said , Non solvit , 3 Keb. p. 28 Car. 2. fo. 629. Percival and Colthowe .

The Defendant pleads , the Condition was to pay a lesser Sum at a day , and that before the day he paid in satisfaction : Per Cur. It 's an ill Plea , not having demanded Oyer of the Condition , 3 Keb. p. 708. Mich. 28 Car. 2. Clatch .

The Defendant pleads , That the Plaintiff before the day accepted a lesser Sum in full satisfaction of a greater . It is a good plea ; but then he must plead , he paid that lesser sum in full satisfaction , and that the Plaintiff received it in full satisfaction , Pinnel's Case . 5 Rep. 117. More N. 847. Penny and Cote .

For the manner and tender of Payment it shall be directed by him that made it . I am bound to pay you 10 l. at Westminster , and you request me to pay you 5 l. at the day in York , and you will accept it in full satisfaction of the whole 10 l. it s a good satisfaction of the whole , 5 Rep. 117. Pinnel's Case .

Condition is for payment of 20 l. the Obligor at the time appointed , cannot pay a lesser Sum in satisfaction of the whole . But if the Obligee do receive part at the day , and thereof make Acquittance under his Seal in full satisfaction of the whole , its sufficient ; for the Deed amounteth to an Acquittance of the whole , Co. Lit. 212. b. Pinnei's Case , 5 Rep. 117. b.

If the Obligor pay a lesser Sum either before the day , or at another place than is limited by the Condition , and the Obligee receive it ; this is a good Satisfaction , Ibid.

Not only things in possession may be given in Satisfaction ; but also if the Obligee accept a Statute in Satisfaction of the Mony , it s a good Satisfaction . Ibid.

Obligor is bound to pay 100 Marks at a day , and at the day the parties Account together , and for that the Obligee did owe 20 l. to the Obligor , the Sum is allowed , and the residue of the 100 Marks paid : This is a good satisfaction , tho' the 20 l. was a chose in Action , and no payment was made thereof but by way of Retainer or Discharge , Co. Lit. 213 , &c.

Condition to make assurance of Lands to such uses . The Defendant pleads , he made a Feoffment to other uses , which the Plaintiff accepted . Ill Plea , 1 Brownl . 60. Potter and Tompson .

Where the Condition is for payment of Mony , if the Obligee accept an Horse , &c. in satisfaction , its good : But if the Condition were for the delivery of an Horse , &c. there tho' the Obligee accept Mony or other thing for the Horse , &c. it s no performance of the Condition : So a Condition is to acknowledge a Recognizance of 20 l. &c. if the Obligee accept 20 l. in satisfaction of the Condition , yet the Condition is broken . So of all other Collateral Conditions , Co. Lit. 212. b.

If a Condition be to pay Mony to a Stranger , if the Stranger accepts an Horse , or other Collateral thing in satisfaction , it s no performance of the Condition ; for there the Condition must be strictly performed : But if the Condition be , that a Stranger shall pay to the Obligee a Sum of Mony , the Obligee may receive an Horse in satisfaction , Co. Lit. ibid.

To Debt on Bond , the Defendant pleads , it was agreed , ( before the Forfeiture of the Bond for 300 l. ) between the Plaintiff and divers other Creditors of the Defendants , that the Defendant should assure divers Lands to be sold , and the Mony to be paid , and he assigned several sums of Mony to them , which they accepted , and avers in facto that he sold the Lands to them , and made a letter of Attorny to them to receive the Sums of Mony . The Plaintiff demurs ; because the Indenture sounds in the nature of a Covenant , and if so , it shall not be in satisfaction , being in it self no satisfaction , nor pleadable in satisfaction of that Debt . Also admitting it had been a good satisfaction , if performed , yet part thereof not being performed , it s no bar to this Action , Cro. Car. 193. Simonds and Mendsworth .

A Concord or Verbal Agreement cannot discharge a Specialty : As a Condition for the performance of Covenants in Articles of Agreement . The Defendant pleads an Agreement between the Plaintiff and him , that he should grant 5 l. per Annum for life in discharge , which Grant he made , and the Plaintiff accepted . Judgment pro Querente , being only a Verbal Agreement .

Cro. Jac. fo. 649. Noys and Hopgood , and so Cro. Eliz. pag. 697. Hayford and Andrews . If the Defendant pleads before the day of payment , the Plaintiff in respect of a Trespass made by his Beasts in the Defendants Lands , gave him longer day . It s no Plea ; for an Agreement by Parol cannot dispence with an Obligation .

Condition to pay 40 l. on Michaelmass-Eve . The Defendant pleads Concord , that if he gave him an Hawk and 20 l. at Michaelmass-day , the Obligation should be void ; and avers he did so , and the Plaintiff accepted it . It s an ill Plea ; for it appeareth for Non-payment of the Mony at the day the Bond was forfeited , and so became single , which cannot be discharged by such naked Averment en fait of such Acceptance . But ,

Acceptance before the day had been a good Discharge , Cro. Eliz. p. 46. Anonymus .

Condition to pay 11 l. on the 12th of February ; the Defendant pleads Accord the 8th of February , that if he paid 8 l. on the said 12th of February , that he would accept it for 11 l. and pleads Tender at the day , & uncore prist : Per Cur. Concord is no Plea without satisfaction , Cro. M. 32 & 33 Eliz. Tassal and Shaw .

Agreement to pay part , and promise to pay the rest , no Plea to a Bond , Cro. M. 35 & 36 Eliz. Balston and Baxter .

Had he pleaded a lesser Sum paid before the day , and at another place , in satisfaction of a greater sum , it had been good , Ibid.

Condition to deliver twenty Quarters of Barly ; the Defendant pleads in Abatement , that pendente billa , that the Plaintiff had accepted fifteen , parcel of the said twenty . Ill Plea ; for it is Collateral , and not parcel of the Sum contained in the Obligation ; and if it be a Plea , it s a Plea in bar , and not in abatement , Cro. Eliz. 253. Doct. pla . 6. Vid. pluis in titulo Payment infra .

Condition to make a sufficient account of all Rents , Revenues , &c. The Defendant pleads , That before the Feast , he Let to the Defendant an House , &c. in full satisfaction of all manner of Accounts ; to which he agreed and entred . Nul Plea , Dyer 1. Case 1. Vid. pluis ibid.

Payment pleaded .

OF payment and acceptance of a lesser Sum before the day , in satisfaction of a greater . Vid. supra tit . Pleading , Acceptance , Concord , &c.

Payment of parcel , hanging the Writ , is a good Plea to the Writ , 5 H. 7.4.1 . an Acquittance of the receipt of part , hanging the Writ , goes to all the Writ . Et Nota , Where payment is not a Plea in bar , receipt pendant the Writ , is no plea to the Writ , Doct. placit. 108.

The Defendant pleads acquittance for parcel ; if the Plaintiff acknowledge his own Acquittance , he abates the whole Writ : Per Cokaine , the Plaintiff shall recover all that the Defendant acknowledged ; and as to what he had received , the Plaintiff is to be amerced , 3 H. 6.48 .

The Defendant pleads after the day of the Writ purchased , ( viz. such a day ) he paid to the Plaintiff 60 l. parcel thereof , which he received . Judgment of the Writ . The Plaintiff demurs specially , because he shewed not any Acquittance or Release testifying it . Judgment for the Plaintiff , Cro. Eliz. p. 884. Colbroke and Foster .

In Debt on a single Obligation , payment without acquittance is no plea. Otherwise in Debt on Obligation with Condition , 28 H. 8. Dyer 25. b. 15 Ed. 4.6 . a. 33 H. 8. Dyer . 50. b. 51. a.

Payment with acquittance , pleaded in an Action of Debt on a Bond , is not double ; because the Acquittance only is issuable , and the payment is but Evidence , 1 H. 7. 15. b.

If the Plaintiff by Deed had confessed himself to be satisfied of the Debt , though he had received nothing ; yet this a good bar , 30 H. 6. tit . Bar 37.5 Rep. Pinnel's Case , fo. 117. b.

Condition to pay 70 l. ( viz. ) 35 l. at one day , and 35 l. at another day , at the Temple-Church . The Defendant pleads payment of the 70 l. at Ludlow , secundum formam & effectum Conditionis praedict. Verdict pro Querente .

Assigned for Error , for that he ought to have pleaded several payments ; but per Cur. its good enough , reddendo singula singulis secundum formam & effectum , &c. Cro. Eliz. p. 281. Fox versus Lee.

Condition was , to pay 20 l. the 7th day of Mdy , 1558 , at the House of the Defendant in S. It was found by Verdict , that the Defendant paid the 20 l. before the 7th day of May , at the said House ; but not solvit the 7th day of May. It was Adjudged a good payment , More N. 400. Bond and Richardson .

Debt on Bond by a Bishop ; the Defendant pleads , he paid the Mony at the day to J. S. Bailiff of the Plaintiff , and by his commandment , and avers that this came to the use of the Bishop . This Averment makes the plea double ; for if the Bayliff receives this by command from the Bishop , notwithstanding this doth not come to his own use ; yet this is a sufficient discharge to the Defendant , 22 Ed. 4.25 . a. But ,

In Debt on Obligation , payment of the Mony to J. S. by commandment of the Plaintiff , is no plea , without shewing that the Plaintiff was indebted to him , 27 H. 6. 6. b.

Where mistake in pleading the Sum , or the Time , is aided , and where not .

IN Debt on Bond of 200 l. Condition to pay 105 l. &c. The Defendant pleads payment of the aforesaid 100 l. at the day . The Plaintiff replies quod non solvit praedict ' 105 l. Et hoc petit , &c. and it was found he did not pay the 105 l. Judgment pro Quer ' , and Error assigned , for that there is not any Issue joyned , and so the Verdict ill , and Judgment erroneous : The saying , Secundum formam & effectum Conditionis shall not help it , as if it should be intended the aforesaid 105 l. Cro. Jac. p. 585. Sandback and Turvey . Such a Case was in Cro. Car. fo. 593. Derby and Hemming ; and no Repleader could be granted , but Judgment was reverst .

But where the Defendant pleaded to Debt on Bond , payment of 50 l. on the 14th of Jun. 11 Jac. The Plaintiff replies , he did not pay it the said 14th day of August , Anno 11. supradicto quas ei ad eundem diem solvisse debuisset , and Verdict found that he did not pay it the 14th day of June ; yet 't was no Error ; For the Defendant's Plea was according to the Condition ; and the Plaintiffs Replication , quod non solvit the said 14th day was good , and the misnaming the Month [ August ] is idle and superfluous , & praedicto quarto decimo die had been sufficient . But in the other cases of mistaking the Sum , there was another Sum in the Plea of the Defendant , than was in the Condition ; and another Sum in the Replication , than is in the Bar ; and so no Issue .

In Debt on an Obligation , the Defendant pleads , Solvit ad diem , & de hoc ponit , &c. where it should be hoc paratus , &c. for then the Plaintiff should have replied , Non solvit ; Et hoc petit , &c. so there had been an Affirmative and a Negative . Per Cur. forasmuch as the Plaintiff joyns Issue , and the Jury find he hath paid , its good enough , and aided per Stat. Jeofails ; and Judgment was not arrested , Cro. Car. 316. Parker and Taylor . So 3 Keb. 29 Car. 2. p. 764. Helder and Brudnall .

Condition to pay a Stranger at three payments ; the Defendant on Oyer pleads payment according to the Condition of another Obligation to the Stranger . The Plaintiff demurs ; and the Plea is Ill , because the other Bond to the Stranger , is not set forth , as the particular days of payment , 3 Keb. 612. Nichols and Nichols .

Release Pleaded .

J. S. makes an Obligation dated and delivered on the first of May , and on the first of June following , the Obligee makes a 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 upon the Bond. Per Cur' , [ Duty ] extends to the Obligation , and it shall be a discharge of it , Cro. El. p. 370. Rotheram and Crawley .

Condition to pay 71. upon the Birth-day of the Child of J. L. which God should send after the date of the Bond. This is a contingent Debt , and the Condition may not be discharged ; and a Possibility may not be released : Qu. if the Obligation may be , Yelv. p. 192 , Neale and Sheffield .

Sir H. Stile , and Tho. Brooke , were joyntly and severally bound to W. Tully : After the day of payment incurred , Tho. Brooks makes his Will , and makes Mary Brooks his Wife Executrix , and dies ; and after William Tully makes his Will , and by his Will releaseth unto Mary Brooks all the Debts which Thomas Brooks her Husband did owe to him at the time of his death . Per Cur. a Will cannot release a thing created by Deed , and so discharge Creditors . Q. Stiles p. 286. Stile and Tully . Sir H. Stile could have no Relief in Chancery .

G. was bound to R. with Condition to pay 100 l. but this was in trust to the use of M. W. during her life , and after to G. P. G. P. may not release the Bond , neither in Law nor Equity , during the life of M. W. But had it been to his own sole benefit , it had been good in Equity , Lit. Rep. 144. Ganford's Case .

An Obligation to perform all Covenants in a Lease . The Lessor releaseth to him all demands before any Covenant broken , this is no release of the Obligation , Lit. p. 87.

Two are joyntly and severally bound in an Obligation ; if the Obligee releaseth to one of them , both are discharged , Co. Lit. 132. &c.

A release of all Actions by the Obligee before the day of payment , he shall be barred of his Duty for ever ; for it is debitum in praesenti , &c. and the right of the Action is in him . So by a release of all demands , Co. Lit. 291. b. 292. b.

The Defendant pleads , that the Plaintiff by Indenture , &c. did Covenant , that he would not sue the Bond before Michaelmass . Judgment si actio . Cur. pro Querente . it s only a Covenant , and shall not enure as a Release ; and is not to be pleaded in bar , but the party is put to his Writ of Covenant . Had it been a Covenant he would not sue at all , it might have mounted to a Release , Cro. Eliz. p. 352. Deux and Jeffreys , 1 Anders . 307. mesme Case .

But if the Defendant pleads , that the Plaintiff by Indenture shew'd , Covenanted , that if he paid 100 l. at , &c. that then the Obligation should be void , and avers he paid it ; it s a good Plea in bar , and he shall not be put to his Writ of Covenant by circuity of Action , Cro. Eliz. p. 623. Hodges and Smith .

An Obligation bears date the 1st of May , and is delivered 20 days after , and the Obligee makes a Release the 2d day of May , and delivers this the same day , this Release is no bar of the Obligation : But in this case , if the Obligee will bring his Action , and count on an Obligation bearing date the 1st of May , and doth not say that this was primo deliberat ' the 20th day , the Defendant shall bar him by the Release ; for that the Release was made after the first day , scilicet the second : And the Plaintiff shall not reply and shew the first delivery of the Obligation was the 20th day , for that this is a departure ; for he ought to have alledged this at the beginning , and so it shall be taken , that the Obligation was delivered according to the purport of the Obligation , 5 H. 7.27 . a.

J. S. was bound , that J. D. the Apprentice should make an account , and pay Moneys ; and afterward the Obligee per Deed releaseth to the Servant , and not to the Obligor . If the Release were made before any Forfeiture , the Obligation is saved , and the Release may be pleaded ; but otherwise if after Forfeiture , because an Obligation once forfeited , cannot be saved by any Act or Release made or done to a Stranger , 3 Leon. 45. Anonymus .

Pleadings . Tender , & Uncore prist .

TEnder at the day and place , of the Mony ; and the Plaintiff refused it , and the Mony brought into Court . The Plaintiff joyns Issue , that there is no Tender and Refusal . Verdict pro Def , the Plaintiff hath lost his Mony , for it is a Refusal on Record , and the Defendant must have his Mony out of Court , Stiles p. 388. M. 1653. Benikin and Herrick .

If the Obligor tender the Mony at the day and place , and the Obligee refuseth it , In debt sur ceo Oblig' . if the Defendant pleads Tender and Refusal , he must also plead he is yet ready to pay it and tender the same in Court . Aliter , if it were to be paid to a Stranger . But if one is bound in 200 Quarters of Wheat , to deliver 100 Quarters , if the Obligor tender at the day 100 Quarters , he shall not plead Uncore prist , for they are bona peritura ; but the Sum of Mony is not lost per Tender and Refusal , because its a Duty and part of the Obligation . Where the Condition is collateral to the Obligation , ( that is ) not parcel of it , there Tender and Refusal is a perpetual bar , and he shall not be driven to plead Uncore prist : As a man is bound in 100 l. to deliver Corn or Timber , to perform Award ; as a man is bound by Award to pay 20 l. &c. Co. Lit. 207. Anders . p. 4. Pannel and Neal. Dyer 1 Eliz. 167. 9 Rep. 97. Peytoe's Case . Vid. Doct. placitand' , p. 389 , 390 , 391. 1 Brownl. 61.

If a man make a single Bond or acknowledge a Statute or Recognizance , and afterwards makes Defeazance to pay a lesser Sum at a day , if the Obligor or Conizor tender it at the Day , and the Obligee or Conizee refuse it , he shall never have any remedy by Law to recover it ; because no parcel of the Sum contained in the Obligation or Statute , the Defeazance being made at a time after , Co. Lit. 207. Vid. More N. 114.

Condition to perform Covenants by a Stranger , one whereof was to pay 20 l. to the Obligee . The Defendant saith , The Stranger tendred , and the other refused , & ne dit Uncore prist . Bon Plea , 27 H. 8.1 . 19 H. 8.12 .

If one be bound , that a Stranger shall make an Obligation to the Obligee , it sufficeth to say that the Stranger tendered this and the Obligee refused it , without saying Uncore prist , 10 H. 6.16 .

Condition was , If a Stranger paid the Mony at T. then , &c. He pleaded a Tender by the Stranger , and saith not Uncore prist : per Cur. it s no bar ; but if they were joyntly bound , it would be well enough , 2 Keb. 178 Browne's Case .

If Mony be tendered , and none ready to receive it ; and after he to whom the Mony is paid , demands the Mony , and the other refuseth , an Action is brought and Tender pleaded ; yet the Defendant shall pay Damages from the time 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 be in words not Material , yet the Deed is void . But if a Stranger without his privity alter it in a place not Material , it shall not be void ; and so in the Principal Case , the Addition being in a Point not Material per a Stranger . Judgment pro Querente , Benedict Winchcombe's Case .

If the Deed be razed in the Date , after the Delivery , it goes to the whole , 5 Rep. 23. Mathewson's Case .

If two are bound in a Bond , and the Seal of one is broken off , this Misfeazance , ex post facto , shall avoid the Deed against both , 11 Rep. 27. Henry Piggot's Case .

The Defendant pleaded Non est factum Testatoris : A Special Verdict was , the Testator was bound in that Bond with two others joyntly and severally , and that afterwards the Seals of the two others were eaten with Mice and Rats : The whole Deed is avoided by this , for it is not the same Deed ; and whereas it was joynt at the first , now if the Deed should stand good against the Defendant only , it should be his Bond only . It is not an Obligation joynt and several , but joynt or several at the Election of the Obligee , for he cannot use both , and when by his own Lachess he hath deprived himself of his Election , the whole Bond is gone :

But in Mathewsons Case , 5 Rep. the 100 l. are several and not joynt , and therefore if the Seal of one is torn off , it shall not avoid the Deed as to the others ; and there if the Covenantee Release to one of the Covenantors , it shall not discharge the others , March Rep. 125. Bayly and Garford .

The Defendant pleads , that it was Sealed by him and one W. C. and that after the Sealing the Seal of W. C. was worn off , and after reaffixed , per quod scriptum praedictum vacuum in lege existit : Per Cur. it s better to plead this Special matter , than non est factum : Noy p. 112. Gomersal and Wood.

The Defendant pleads , that at the time of the delivery there was not any day written in the Deed , but a space left , and after the delivery the Plaintiff put in a day , and issint non est factum : The Plea had been better to have set forth the Special matter , per quod scriptum praedict' perdidit effect ' ; Judgment si actio Moren . 8.

The Issue was non est factum ; the Jury did find the Defendant did Seal and Deliver it , but that after the day of the Issue joyned , the Seal was pulled off from the Obligation . Judgment pro Querente , Cro. Eliz. p. 120. Michels Case .

The Defendant pleads quod factum praedict ' was made and delivered without a date , and afterwards the Plaintiff put a date thereto , and issint non est factum ; it s an ill Plea . For he first confesseth it to be his Deed , by saying factum praedictum , and afterwards denies it ; he might have said non est factum generally , Cro. Eliz. p. 800. Cosper and Turner .

If one confess an Obligation , and pleads acquittance ; he shall not conclude issint non est factum ; but Judgment si actio . 1 H. 7.15 .

The Plaintiff counts on Bill Obligatory , made by the Defendant to him , the Defendant pleads non est factum ; the Jury find the Bill was a joynt Bill made by the Defendant , and another to the Plaintiff : Per Cur. it s an ill plea , but he might have pleaded in Abatement of the Writ , 5 Rep. 119. Whelpdales Case .

The Defendant pleads the Obligation was made to another and not to the Plaintiff ; its ill , for it amounts to non est factum , Siderfin p. 450. Gifford and Perkins . 2 Keb. 633. Mesme Case .

The Defendant pleads non est factum ; Jury in Special Verdict find the Bill in haec verba . Whereby it appears , that the Defendant and J. S. Sealed the Bond and were joyntly obliged , and the said J. S. yet alive ; Per Cur. adjudged pro Querente , Cro. Jac. p. 152. Stead and Moone .

Three are bound conjunctim and divisim ; in an Action against two of them , they may plead non est factum , 14 Eliz. Dyer 310.

A Stranger to a Deed shall not plead a Special non est factum , as that the Seal is severed from the Deed and issint , &c. but he ought to plead riens passa per le fait . 1 Rols Rep. 188. More and Waldron . If the Deed of another be pleaded against a Stranger , he may not plead non est factum , 20 Ed. 4. 1. a.

If an Obligation be delivered to another to the use of the Obligee , and this is tendered to him , and he refuseth it ; now the delivery hath lost its force , and the Obligee may never after agree to this , and therefore the Obligor may say non est factum . So if the Obligation be made to a Feme Coverr , and the Baron disagree to it , the Obligor may plead non est factum ; for by the refusal the Bond hath lost its force , and becomes no Deed , 5 Rep. 119. Whelpdales Case , 1 Anderson 4 Tawes Case .

The Defendant pleads that he was Illiterate , and that the Bond was fasly read to him ; and further , that this was delivered as an Escrow , and the Condition not performed , and issint non est factum , this per Cur. is not double , because he concludes non est factum , 38 H. 6. 26 , 27.

Pleading non est factum upon delivery as an Escrow , and Conditions not performed , vid. supra . Title Delivery .

If a Man be Illitered , and the Deed is not read to him , or read in other words , or the effect declared in other form then is contained in the Writing ; he shall avoid this , and plead non est factum , 2 Rep. 9. Thoroughgoods Case .

If a Man be Lettered and is Blind , and the Deed is read to him in other manner , he shall avoid the Deed.

C. is bound to pay Mony to two joyntly , one dies , the other Survives and dies , and makes Executors . Executors brings Action versus C. and declares on the Bond made to the Testator and another , and Avers not the the Testator Survived . The Defendant pleads non est factum : Ill Plea , for it was his Deed , and the matter of variance goes to the Abatement of the Writ , and not to the Action ; and it s too late for the Defendant to take advantage of it , Stiles p. 78. Holdich and Chace .

If the Defendant had demanded Oyer of the Deed and entred it , he might have demurred as to the Declaration , Allen p. 41. Mesme Case .

Debt on Bond , the Defendant pleads non est factum ; The Jury find Specially , the Plaintiff declares on an Obligation dated the 24 day of the Month , and they find the Obligation was sealed and delivered the 27 day , but bears date the 24 day ; & utrum this shall be accounted the same Obligation on which the Plaintiff declares : It shall be accounted the same , and this is a Plea in Bar , and not in Abatement , Stiles p. 414. Hill. 1654. Leake and Reynolds . So

Goddard port Debt on Obligation made to his Intestate dated the 4 of Apr. 24 Eliz. The Defendant pleads , the Intestate died before the date of the Obligation , and so not his Deed ; the Jury found , the Defendant declared this as his Deed the 30 July , 23 Eliz. But that this was dated as before , and that the Intestate was living the 30 July , but not the 4 of Ap. Per Cur. it is his Deed ; for tho' the Obligee in pleading may not alledge the delivery before the date , for that he is estopt to take Averment against a thing exprest in the Deed , yet the Jury are not so estopt ; Mistake of the date of an Obligation shall not hurt upon non est factum pleaded , 2 Rep. 4. Goddards Case .

Debt on Bond , which was set forth to be made the 15 of Nov. 25 Eliz. The Defendant pleads non est factum ; the Jury find Specially , that it was dated the 15 of Nov. 23 Eliz. but it was not sealed and delivered till the 18 of Nov. 26 Eliz. Et si , &c. Per Cur. this Verdict is found for the Plaintiff , the Issue being Generally non est factum , it appears to be his Deed ; but peradventure by Special Pleading , he might have helpt himself , Cro. Jac. 136. Lady Lane versus Pledal .

Special Verdict find , the Plaintiff hath declared on an Obligation made to himself only , without speaking of any other joynt Obligee , and that the Plaintiff as Survivor hath brought the Action ; on non est factum pleaded , if it shall be said , the Deed of the Defendant in manner as the Plaintiff hath declared : Per Cur. the Plaintiff ought to have declared of the Special matter ; non est factum in this case is no good Plea ; for he hath not pleaded it respective as to the Obligation , but Generally non est factum suum ; which refers to the Obligor only ; and the Issue is not whether he made the Deed to the Plaintiff or not , but Generally whether he made it at all ; this Plea non est factum hath not any respect to the Obligee ; for if the Obligee be a Monk , and be another person who bears the Name of the Obligee , yet in such cases , the Obligee cannot safely plead non est factum : Aliter Where one is Sued who bears the Name of the Obligor , 1 Leon. p. 322. Case 453. Dennis and St. John .

W. S. was bound to H. by the Name of J. S. and on that Obligation the Action was brought against him by the Name of W. S. and he pleaded non est factum , and the Special matter was found , and it was Ruled , that upon the Verdict the Plaintiff should not recover ; but the best way for the Plaintiff was , to Sue the Defendant by the Name by which he is bound , and then if he appear and plead ut supra , he shall be concluded by the Obligation , 10 Eliz. Dyer 279.

Bond on Covenants , some are void , and some are not ; how he shall conclude his Plea , 14 H. 8.27 , 28.

Sir Edward A. was bound in an Obligation by the Name of Sir Edmond , and subscribed that with the Name of Edward : In Debt brought against him he pleads non est factum , Per Cur. he might well plead that , for it appears that he is not named Edmund ; and the Original against him was Command Edward alias Edmond , and that 's not good , for a Man cannot have two Christian-names ; but if he hath another Name at Confirmation , he must be sued by that , 2 Brownl . p. 48. Sir Edward Ashfeilds Case .

The Defendant pleads it was delivered as an Escrow , and issint non est factum , & hoc paratus est verificare : The Plaintiff demurs , per Cur. this is a Plea that may conclude either way , and is most usual with this conclusion ; tho' generally upon a general Negative Plea , must be to the Country , as non assumpsit infra sex annos . Judgment for the Defendant , 3 Keb. 142. Manning and Bucknal .

The Defendant saith , tempore confectionis scripti , there was J. P. the Father , and J. P. the Son , the Plaintiff in full life , and that he sealed and delivered to J. P. the Father , and not to J. P. the Son ; Judgment si actio ; it s a good Plea , and he need not say non est factum against the Son , 16 H. 7.7 . vid. supra ; Siderfin 450. Giffords Case , contra .

A Man was bound to Randolf , and in Action brought , he declares he was bound Randulfo : The Defendant pleads non est factum , and adjudged it was not his Deed , for that Randulf and Randolph are two Names distinct , per Co. in 1 Rols Rep. 271. cited in Lumlies Case .

Debt brought upon two Obligations , the Defendant pleads non sunt facta , or per minas , its good by one Plea , Noy . 132. Dentons Case .

If the Defendant pleads non est factum , and further demurs upon the Obligation , the Demurrer is void , per Prisot. 35 H. 6.9 . b.

After non est factum pleaded , the party shall give the Special matter in Evidence , 11 Rep. 26. Piggots Case , 2 Mary Dyer 112.

Debt versus G. B. Executor of S. B. on a Bond made by S. B. the Defendant vim & injur' , &c. & dicit quod scriptum praedictum non est factum suum . There is no mention made of S. B. in all the Bar , and therefore suum cannot refer to him , but being after a Verdict , and found to be his Deed. Pro. Querente , Latch . p. 123. Bakers Case .

Where a Deed is Enrolled , the party may not plead non est factum , but he may say Riens passa per le fait , 9 H. 6.60 .

Upon non est factum pleaded , and found against him that it was his Deed ; the Judgment was entred , quod sit in misericordia , where it ought to have been quod capiatur : Per Cur. this is a manifest Error . If the Executor plead non est factum , misericordia shall be entred , 2 Bulst. 230. Jones and Cross , 1 Keb. 196. Ellisons Case .

The Defendant pleads non est factum , and at the Nisi prius relictâ verifications cognevit actionem . Judgment that the Plaintiff shall recover , and the Defendant in misericordia and not quod capiatur , Noy . p. 4. Bavage and Clarke .

Estoppels in Pleading .

Vid. Supra tit' Estoppells .

COndition , if Obligor pay all such sums which he was obliged to pay by his several Writings Obligatory : The Defendant saith , there was not any Wrintings Obligatory , by which he was to pay any sum . No Plea , he is estopt to say so against the Condition , More n. 75.

Condition to pay all Legacies which J. S. had Bequeathed by his Will ; the Defendant shall be estopt to say J. S. made no Will ; but he may plead , he gave not any Legacies by his Will , More n. 555. Paramor and Daring .

Plea per duress . vid. title duresse supra .

Pleas by the Heir to the Bond of his Ancestor

Vid. supra titulo . Actions of Debt against the Heir .

Outlawry Pleaded .

THe Defendant pleads Outlawry to the Plaintiff , and concludes in Abatement . The Plaintiff pleads null tiel Record ; the Defendant had a day to bring in the Record and failed ; and because it was in Debt on Obligation , in which Outlawry goes in Bar , he failing of the Record , the Plaintiff had Judgment , Cro. Eliz. 203. Smith and Bernard .

The Defendant pleads Outlawry in the Plaintiff , and shews it in certain ; the Plaintiff pleads nul tiel Record ; in the mean time the Plaintiff reverseth the Outlawry : The Defendant shall not be condemned , but a Respondeas ouster . Failer of the Record not peremptory , the Defendants Plea being true at that time , Yelv. p. 36. Green and Gascoigne , 1 Browel Rep. p. 83.

The Defendant pleads Outlawry of the Plaintiff , and shewed the Outlawry in certain , by the name of J. S. of D. in the County of , &c. The Plaintiff shewed , that at the time of the Suit begun against him , the said J. S. upon which the Outlawry was pronounced , was dwelling at S. absq' hoc that he was dwelling at D. Per Anderson , it s a good Replication to avoid the Outlawry without a Writ of Error ; for he cannot be intended the same Person , 1 Leon. p. 87. Anonimus .

In Debt on Bond : The Defendant Imparles till next Term ; after he may plead that the Plaintiff is Outlawed , for the King shall have the Debt on Bond ; aliter in Trespass or Debt on simple Contract , 16 Ed. 4 4. a. per Brian .

The Defendant pleads Attainder of himself , after a Debt due to the Plaintiff ; it s no Plea , More n. 982. Hall and Trussel , Bro. Eliz. 516 , Banister and Trussel . 2 Anderson , 38 , 45. Mesme Case .

The Defendant pleads , at the time of the Obligation made he was non sanae memoriae ; its non Plea , Cro. Eliz. p. 398. Stroud and Marshal .

The Defendant pleaded , that the Plaintiff is a recusant Convict , in Bar , Litt. Rep. 235. Rooksby versus Bridge .

Debt upon Obligation in Norwich : The Defendant confest it to be his Deed , but according to the Custom there prayed quod inquiratur de ●debito ; and the Inquest was awarded and returned , and found to a certain sum , for which sum the Plaintiff had Judgment to Recover ; this was assigned for Error : But because it was done according to the Custom it was not Reversible , Cro. Eliz. 894. Grice's Case .

In Debt on Obligation against the Lord Monteagle : The Defendant pleads his Peerage , and prays to be Discharged : Per Cur. Plead in chief , this is but a Dilatory Plea , Stiles p. 257. Lord Monteagles Case .

Arbitrament pleaded in Bar.

Vid. Supra titulo , Rules of Pleading .

Foreign Plea .

THe Condition was , that in case the Ship were Cast-away in the Voyage , and did not return , it should be void . The Action was laid in London , and the Defendant pleaded she was Cast-away at Falmouth : It s ill ; had the Plea been local it ought to be sworn : The Action being Transitory , the Defendant shall not by any thing Transitory alter the Venue ; but ought to alledge the Ship was Cast-away at St. Maria de Arcubus in Warda de Cheap , in the same County the Action is brought , 1 Keb. 750. Collins's Case .

The Declaration is , that the Obligation was at Barnstable , and the Plea is , that it was at Chichly , and payment alledged there , which is a Foreign Plea . The Plea was not sworn , nor demurred to , but received , and Day given to swear it ; and for not swearing it accordingly , Judgment is given by default , whereas it ought to have been by Nihil dicit for want of a Plea . And per Rolls , If one plead an Insufficient Plea , although it be a Foreign Plea , it s not necessary it should be sworn . Stiles p. 200. Wyatt and Harbye .

In a Corporation Court , if the Defendant plead a Foreign Plea , which is Collateral , ( as in Debt on Bond ) he pleads a Release made in a place out of the Jurisdiction , it need not be received without Oath . But if in Covenant or Debt , for Mony to be paid in another place , he pleads payment accordingly , or the Covenants performed in a place limited , which is out of the Jurisdiction , it ought to be received without Oath , Lit. p. 236 Corporation Court .

Condition for performance of Covenants : Breach assigned for Non-payment of Rent . The Defendant pleads performance till such a day , and that the Plaintiff entred in Surry , where the Lands are leased . But the Action being in B. R. the Court made him swear his plea ; yet because the Council offered to try it by Nil debet , which is no Plea , but by Consent , which the Plaintiff refused , the Court allowed the Plea , 2 Keb. p. 386. Jones and Comport .

Debt on Bond in Bristol ; Recovery pleaded in the Kings Bench , the Plea must be sworn ; and though it be sworn , if they have cause to presume it not true ; they may refuse it , Siderfin in Knights and Pitt's Case , fo. 330.

Foreign Attachment pleaded .

THe Defendant pleads Foreign Attachment in London to Debt on Bond : The Plaintiff demurs ;

1. Because the Defendant had Attached Mony in his own hands by way of Retainer .

2. The Custom is in London , that the Recoveror ought to find Sureties , that if the Defendant be discharged within a year and a day , then to pay the Mony , and it did not appear by the Record that he found Sureties . This was held an incurable Fault , 1 Brownl . Rep. p. 60. Hope and Holman .

L. brought Debt against H. on Obligation : H. pleads how one J. J. affirmed a plaint of Debt in London against the said L. and by the Custom there Attached that Debt now demanded in the Hands of the said H. and pleaded the Recovery and Judgment there . The Plaintiff replies , that before Attachment J. J. brought Debt in the King's Bench against the said L. for the same Debt ; whereupon he made an Attachment whilst the Suit was depending . Et hoc , &c. H. demurs : Per Cur. notwithstanding this that J. J. had commenc'd a Suit in B. R. for his Debt , and the Suit there depending , yet the Debt in the Hands of H. may be Attached : For tho one cannot Attach a Debt in London , for that a Suit is here depending in the King-Bench , as Cro. Eliz. 691. Humfrey and Barnes ; yet one who hath conceived an Action here , may affirm a plaint in London for the same Debt , and may make Attachment of the parties Debt , according to the Custom : For there the Debt in question is not touched by the Attachment ; and the Plaintiff might now have pleaded this Attachment in Bar for so much of his Debt in the Action brought in the King's Bench , Cro. Eliz. 593 , 712. Leuknor and Huntly .

The Defendant pleads , that the Plaintiff was Indebted to him , & concessit solvere , and pleads a Foreign Attachment in London . The Plaintiff protestando quod non habetur tale Record' , pro placito dicit , that he , pro diversis denariorum summis per ipsum prafat R. prius debit' , non concessit solvere the said Sum , modo & forma prout : Adjudg'd a good Plea in Bar , for the Debt is well Travelable , Cro. Eliz. 830. Coke and Brainforth .

The Defendant pleads Tender , and so to Issue ; and after the Defendant pleads , that after the Darrein Continuance , Foreign Attachment : Per Cur ' , its ill ; and per Curiam , the Action for the Debt depending in this Court cannot be Attached , 3 Leon. 210. After Imparlance , Foreign Attachment not to be pleaded , 3 Leon. 322. Babington's Case .

The Defendant pleads to Debt on Bond of 80 l. that the Plaintiff pendant the Bill brought against him a Plaint in London , and there by Custom had attached 40 l. of a Debt due to the Defendant in the hands of J. S. in satisfaction of 40 l. due on this Bond , and demanded Judgment of the Bill . Per Cur. it s a Plea in Bar , and not in Abatement , for the Plaintiff for this part is to be barred for ever ; and this receipt of parcel is lawful , and a Recovery in Law . Aliter of a bare Acceptance , Cro. Eliz. p. 342. May and Middleton .

The Debt follows the person , and it s therefore called a Foreign Attachment , because let the Debt rise where it will , its attachable , if the Debtor cometh , or the Mony be brought into London , 2 Keb. 320. Mollam and Hern.

W. was bound to K. in a Recognizance of 400 l. and K. was bound to W. in a Bond of 100 l. W. ( according to the Custom of London ) affirmed a Plaint of Debt in the Guild-Hall against K. upon the said Bond of 100 l. and attached the Debt due by himself to W. in his own hands ; and now K. sued Execution against W. upon the Recognizance , and W. brought Audita Querela , and it was allowed , 1 Leon. 297. Wallpool and King .

An Obligation for an 100 l. on Condition to pay 50 l. before the 25th of March. The Defendant pleads a Foreign Attachment of the 50 l. the 17th of February in the hands of Watts , and a Retorn that it was attach'd ; but there was no Scire facias till April after . ( Before the day of payment , a Creditor of the Plaintiffs , scilicet , &c. attaches the 50 l. and gives Security in the Court , according to the Custom , to pay the Debt if it be disproved within the year and day . ) The Plaintiff demurs , as being no sufficient Attachment being before the Mony was due . The custom of London is to attach a Debt before its due , ( contrary to 3 Cro. 184 ) yet it may not be levied till after the time of payment of the Obligation ; there is only a seizure , and a Cesset Executio till the Mony be due . Also the party against whom the Execution is sued , is not to give Security , but to pay the Mony ; but the party that sueth the Execution is to give it , to return the Mony , if the Debt be disproved within a year and a day ; Also the Judgment had there is pleadable : Also per Cur ' its a good Bar for the whole ; but if it were for part , as 20 l. this Record of the Attachment shall be pleaded in Bar for part , i. e. pro tanto , Siderfus p. 327. 2 Keb. p. 202. Robins and Standard . Vide Co. Intr. 142. Ra. Entr. 158.

Pleading to the Jurisdiction .

IN Debt on an Obligation in the Palace-Court , averring neither of the parties were of the King's Houshold . After Judgment on Non est factum , the Defendant assigns for Error , that the Plaintiff was the King's Brazier : To which the Plaintiff demurred ; because the Defendant by the Record is estopt to say that , but should have taken Issue on the Averment : Which the Court agreed ; as on alledging a Cause infra , that was out of the Jurisdiction ; this must be pleaded , and cannot be assigned for Error , 3 Keb. 372. Newnan and Rivet .

Condition to deliver a certain quantity of Tin at a certain place within the Jurisdiction of the Stannary : And the Defendant pleaded to the Jurisdiction of the Court , that it was a Tin Cause : The Charters are to the Cause , and shall not be restrained to persons , though the Defendant be not alledged in the Plea , to be a Tinner : It was allowed , 1 Rol. Rep. Pinson and Smale .

Obligations , Conditions . Recovery pleaded in Bar.

THree are bound pro toto & in solido : the Obligee had Judgment to recover against one of them , and afterwards sues an Action against the others ; this Recovery is not a Bar , because no satisfaction of the Duty ; but Execution is a good Plea , 4 H. 7. 8. b. Co. Rep. 6.46 . a. Higgin's Case .

As long as Judgment remains in force , a man shall not have an Action on the same Bond ; for the Debt is changed into a higher nature of Record , Cro. El. p. 817. Preston's Case .

An Action of Debt brought by the Executor , on Bond made to the Testator : The Defendant pleads , that the Testator in vita sua in Curia de Banco hic recuperavit debitum praedict' cum 40 s. pro misis ( without alledging the Execution ) quod quidem Recordum recuperationis , was removed per breve d'Error , & ibid. remanet minimè reversat' . The Plea was good , 6 Rep. 44. Higgin's Case . Aliter if Recovery be by Debt sur Bond in the Courts per Justices , Ibid. And though the Recovery be erroneous ; yet so long as it remains in force , it ought to be executed , and when it is Reversed , the Obligee is restored unto his new Action upon the said Obligation . Ibid.

If a man bring Debt upon Bond , and he is barred by Judgment , so long as the Judgment stands in force he cannot have a new Action . So when he hath Judgment in an Action upon the same Bond , so long as the Judgment remains in force , he shall not have a new Action . Ibid.

The Defendant pleads , the Plaintiff brought another Action upon the same Bond in London ; to which the Defendant there pleads Non est factum , and so found there : And upon this Verdict the Entry was , That the Defendant should recover Damages against the Plaintiff , and the Defendant be without Day ; but no Judgment that the Plaintiff Nil capiat per Billam : And so per Cur ' , no Judgment to bar the Plaintiff , 1 Brownl . p. 81. Levet and Hall . Vid. 7 Cro. Jac. p. 284.

Debt sur Bond of 600 l. vers . K. in Bristol The Defendant pleads a Recovery in B. R. upon the same Bond , against the same Defendant per the Plaintiff . Et hoc paratus est verificare . The Plaintiff Replies , Nul tiel Record , unde petit Judicium & debitum suum praedict' sibi adjudicari . The Defendant Rejoyns , Quod habetur tale Record' prout per Record' in B. R. apparet . Per Cur ' he that will joyn Issue sur Record , ought to say , Et hoc paratus est verificare , prout per Recordum illud — vel verificare prout Curia hic consideravit — and so are all the Presidents ; yet in Error Judgment was affirmed for the Defendant in the Writ of Error , and that the first Judgment should be affirmed , notwithstanding it was prout per Record' illius plenius liquet . Siderfin p. 329. Knight and Pitt . Vide 2 Keb. 250 , 278.

Two were joyntly and severally bound : In Debt brought the Defendant pleads , the Plaintiff recovered against the other the same Debt , and had Execution . It s a good Plea , notwithstanding it was not shewed by what Process he had Execution , because the Execution is on Record , and shall be tried by the Record ; but if he paid the Monies in Pais to the Plaintiff , and not in Court , it is not an Execution of the Judgment , Mo. N. 91.

The Defendant pleads , That the Plaintiff in the King's Court at Penwarth , brought Debt upon this Obligation against T. who was bound with him in the said Bond joyntly and severally , and recovered , and had him in Execution ; and that the Gaoler voluntarily suffered him to go at large . It was Demurred , 1. Because he doth not shew , the Court had power to hold Plea . 2. The Plea is not good in substance , for this Escape is no discharge of the Debt , and therefore the Action lies against the other , 5 Rep. 86. Blumfield's Case . Cro. Jac. 531. Pendavis's Case .

Two bound joyntly and severally ; the Obligee brought Action against one , and retraxit his Suit . Q. If this be a Bar to sue the other Obligor : But the Retraxit being pleaded in the Court of Record in Poele , and it not being alledged , that this Court had power to hold Plea per Patent , or Prescription , It is an ill Plea , Jones p. 451. Denn● and Paine .

If a man be bound by an Obligation , and afterwards promiseth to pay the Mony ; Assumpsit lies upon this Promise , and if he recover all in Damages , this shall be a Bar in Debt sur le Bond , Co. Lit. p. 240. Ashbroke and Snape .

Venue , Bond where Triable . When the Obligation is made beyond Sea .

AN Obligation made beyond Sea , may be sued here in England in what place the Plaintiff will ; as if it bears date at Bourdeaux in France , it may be alledged to be made in quodam loco vocat ' Bourdeaux in France , in Islington in the County of Middlesex , and there it shall be tried ; for whether there be such a place as Islington , or not , is not Traversable , Co. Lit. p. 261 b.

One sues in the Admirals Court , upon a Bond made in partibus Maritimis Virginiae ; and so he may , if he will , suppose the Contract in Virginia ; and if he will suppose the Contract in England , he may sue here : But if part of the Contract be here , and part beyond Sea in Virginia , or upon the Sea , the Common Law shall have Jurisdiction , 2 Rol. Rep. 492. Capp's Case .

Where part is to be done ▪ within the Realm , and part out of the Realm , the Plea ought to be Triable within the Realm .

Condition was for 40 l. to be paid within 14 days next after the Return of one Russel into England , from the City of Venice . The Defendant pleads in Bar , that the said R. was not at Venice . The Plaintiff demurs ; and it was Adjudged a naughty Plea , 1 Brownl . p. 49. Hales and Bell.

Where the Condition contains Matter not Triable , the Condition is void , Mo. N. 201.

The Issue was , the Obligor was never at Rome ; but if the Matter is parcel Triable , its good enough . Molineux .

A Declaration upon a Bill dated in patoch' Sanctae Mariae de Arcubus in Lond ' ; and upon Oyer it bore date at Hamborough : It s triable here , Latch p. 4 , 77 , 84. Ward and Kidson . Cro. Jac. fo. 76. Higham and Flower .

An Obligation sued in the Admiralty , supposed to be made and delivered in Chancery . Per Cur ' such a Bond may be sued here ; but being begun there , we cannot prohibit them : For the Plaintiffs Witnesses may be beyond Sea , 3 Leon. p. 232. Delabreche's Case .

Debt on Obligation dated in Surry , brought in London . The Counsel pleaded Stat. 6 R. 2. cap. 2. that all Obligations ought to be sued in their proper Counties , as dated , and prayed Judgment of the Writ . Per Cur ' its a frivolous Plea ; the Law being clear , that unless the Obligation appear in the Count , or on the Pleading , to be out of the County , although it bear date out , it s not material where it s brought , 1 Keb. 593. Pretty , and Roberts .

Debt on a Bond of 60 l. for the payment of 30 l. 10 s. at Coventry ; Issue was taken that the Mony was paid at Coventry ; yet by consent of Parties and Paper on the Rule of Court , Issue was found pro Querente at London , and Judgment , but it was reversed for this Error . Consent of parties cannot change the Law , Hobart p. 5. Crow and Edwards .

Recognizance taken before a Judge at Serjeants Inn in Fleetstreet , London , out of Term ; the Action was laid in London , and not in Middlesex , and good ; and the Scire facias shall be directed to the Sheriff of London ; but if it were taken in Court or generally , it shall be in Middlesex , Hob. p. 195 , 196. Hall and Winckfield .

Place of Payment in the Condition .

DEbt in Havering in Essex : The Condition was for payment of 20 l. to the Plaintiff at his House at S. in Kent . The Defendant pleads payment at the day , &c. Secundum formam & effectum indorsamenti pradict ' ; and Error was assigned , for that the Issue was tryed at Havering , and not at S. in Kent . Non allocatur : For when a thing Issuable is alledged , and no place , this shall be tryed where the Action is brought ; and Secundum formam , &c. refers only to the Time , and not to the Place : For the Place is not material , payment being made to the Obligee ; and it appears not but S. in Kent may be in the Jurisdiction of Havering , Cro. Eliz. p. 105. Newe's Case .

Condition was , if he pay 50 l. at his House at Lockington , in the Parish of Kilmerston , that then , &c. The Defendant pleads payment , &c. and the Venire issues of the Venue of Lockington ; and good ; for it shall be intended a Village in the Parish of Kilmerston , for divers Villages may be in one Parish : But if it had been at his House in Lockington in Kilmerston , then it shall not be intended a Village , but a place known , Cro. Eliz. p. 117. Pike and Cottington . 3 Leon. 193. Cro. Eliz. 804. Kerchever and Wood.

Payment pleaded apud domum mansionali● Rectoriae de M. Venue was de M. and good , and M. shall be intended a Vill.

Condition for the payment of 100 l. at his House in Cheapside , the 21 of June next ensuing the date hereof . The Defendant pleads , that on the 21th of January then next following the date of the Condition of the Obligation aforesaid , he paid the 100 l. at the Plaintiff's House in Cheapside , Secundum formam , &c. It s good enough , though the Condition hath no date , for the Condition and Obligation are as but one Deed : But because it s not alledged in what Parish or , House the Ward is , its Ill , because of a Venue and Trial , a Parish and Ward in London , are as a Vill and Hamlet in other Countries , Cro. Eliz. pag. 372. Forth and Harrison .

Condition was , that the Defendant should pay so much Mony in an House of the Plaintiffs at Lincoln . The Defendant pleads payment at Lincoln aforesaid , and Issue , &c. The Venire was De vicineto Civitatis Lincoln ' , the Trial is good ; and it s a Rule , where it doth not appear upon the Record that there is a more proper place of Trial , than where the Trial was , that there the Trial is good ; but here is not a more proper place ; and it could not be , tryed in the Body of the County , because the payment was to be in the City , March . Rep. 124 Thorndike and Turpington .

Debt upon an Obligation in London , against J. S. of Wakefield in Com' praedicto , Conditioned for the payment of 100 l. at Wakefield . The Defendant pleads payment at Wakefield aforesaid in Com' Ebor ' . The Plaintiff saith , Non solvit , and so at Issue . The Trial was , De vicineto de Wakefield in Com' Eborum . It was Error , because he is named of Wakefield in Com' prad ' , which shall be intended London ; and the payment at Wakefield aforesaid shall be so intended ; and the words added [ in Com' Ebor ' ] are idle . Cro. Eliz. 867 , Sackvill and Roades .

Venue .

THe Margent of the Count is Nott ' , and the Count it self contains , that the Obligation was made at the Town of Nott ' , ( which is a County it self ) on Non est factum , Venue was of the Town of Nott ' , and tryed by a Jury of the County : Per Cur ' in arrest of Judgment , though the Town of N. be a County of it self ; yet it may be some part of the Town may be within the County ; and for that possibility they would not arrest Judgment , 2 Brownl . p. 165. Browning and Shelly .

The Plaintiff declared on a Bond made in London : The Defendant pleads an Usurious Contract in Staffordshire , and the Bond made for the same Contract . The Plaintiff replied , the Bond was made bond side & non pro usura . The Issue was tryed in the County of Staff . And per Cur ' it was well tryed , 1 Leon. pag. 148. Case 206. Kinnersley and Smart .

The Plaintiff Leased to the Defendant certain Lands in Cambridgshire , rendring Rent , and the Defendant became bound in a Bond for the payment of the Rent . Debt on the Bond is brought in the County of Northampton , to which the Defendant pleads payment of the Rent , without shewing the place of payment . It was tryed per Nisi prius at Northampton , and well , 2 Leon. 146. Coney and Beveridge's Case .

Debt brought in London , which on Oyer was to perform Covenants , which were to enjoy a Walk in a Forest . On pleading , the Venue was of the Walk ; though the Venue be ill , yet it s aided after Verdict , per Stat. 16 ● 17 Car. 2. cap. 8 2 Keb. 212 , 216. Sterk and Bates .

Condition was , that if he appeared such a day , it may be tryed per Pais , Cro. Eliz. 131. Hoc and Marshall .

Debt on a Bond : In the Imparlance-Roll , the Bond was alledged to be made at Newcastle , and in the Issue-Roll it was alledged to be made at York , and tryed ; Error was brought . The Court would not grant that the Imparlance-Roll might be amended , 1 Brownl . Rep. 66. Fetherston and Tapsale .

A Bill Obligatory to be paid within ten days , after J. L. went by five days undivided from London to York , and returned from York , to London . The Defendant pleads , that J. L. did not go five days immediately from London to York , and return from York to London . Issue and Venue was awarded from the Parish of Bow in Warda de Cheape , where the Bill was alledged to be made , and found pro Quer. Judgment was arrested , because it is not alledged to what Parish in London he Returned ; but to London generally , that so a Venue might have been . 2. As this case is , the Venue must be from London ; so de corpore Comitatus , and not of the Parish where the Bill was made , Cro. Jac. 137 , 150. Normanvile and Pope .

Debt on Bond , Conditioned to pay 20 l. and saith not where . The Defendant pleads Solvit ad diem , and Verdict and Judgment : The Court denied to affirm the Judgment , because here is no Venue , and so no Trial. This was in Durham , on Error brought , 2 Keb. 620. Norcliffe and Anderson .

Condition to pay a Moiety of Charges , &c. The Defendant pleads Payment , and saith not where . The Plaintiff demurs , because no Venue can be . Per Hales , no place is here necessary , the Pleading being in the Affirmative , 2 Keb. 762. Cantor and Hurtnell .

Condition to be paid at his Mansion house , &c. this may be paid at any place , 3 Bulstr. 244.

In Debt on Bond : Trial in Issue shall not be stayed on infra aetatem , but this must be pleaded ; and the party cannot be aided on Non est factum ; but a Feme Covert may , 3 Keb. p. 228. Cole and Delawne .

Debt on Bond in Norwich , and Cognovit Actionem ; by custom a Writ of Enquiry was awarded de vero debito , and good , 3 Keb. 212. Brightman and Parker , 251. Rogerson and Jacobson .

A Man recovers Debt on Bond : If A man will bring Action of Debt for the Sum recovered , he must lay it in the County of Middlesex , and where the Judgment was given , which hath made Novationem contractus , Hob. p. 196. in Hall and Winkfield's Case .

Joyning Issue on payment .

COndition to pay tantas denarionum summas , as he should receive by such a day : The Defendant pleads payment generally . The Plaintiff replies he did not pay 50 l. such a day , & hoc paretu● , &c. and good , for the Defendant must rejoyn and conclude , Et hoc petit , &c. 2 Keb. 230. Tr. 19 Car 2. Hansal and Nurse .

Condition to pay a lesser sum the 24 of June , in such a year : The Defendant pleads he paid this praedicto 24 die Junii , quod ei solvisse debuit secundum formam & effectum Conditionis : The Plaintiff replies , quod non solvit praedictam summam , &c. pradicto 14 die Augusti , quod ei solvisse debuisset ; & hoc petit , &c. The Jury find the Defendant non solvit praedicto 14 die Junii : And the Plaintiff had Judgment : Error assigned , because no Issue joyned : The Plaintiff ought to have replied , quod non solvit praedicto 14 die Junii , and not 14 die Augusti . Per Cur. its good . Had the Plaintiff replied , quod non solvit praedicto 14 and omitted August ; this had been good ; then the addition of August is idle and surplusage , 2 Rols Rep. 135. Halse and Bonithan .

Condition , to pay 10 l. 10 s. The Defendant pleads payment of 10 l. Secundum formam , &c. upon which Issue and Verdict pro Querente , and yet Repleader Awarded , Hob. p. 113. Kent and Hall .

On Colateral Point .

COndition that the Obligor shall find three men to go with him to Y. and he ●urmiseth they went with the Obligee , if the Obligee saith they did not go with him ; this is no Issue ; for if one of them fail , the Obligation is forfeited , 4 H. 7.8 . per V●visor .

Condition , If M. W. ( the Plaintiff ) doth not depart out of the Service of the Defendant without License of the Defendant , nor Marry her self but with his consent ; then if the Defendant shall pay to the Plaintiff within 28 daies after demand by her made at his House 100 l. that then , &c. The Defendant pleads , that the Plaintiff on the 4 of May , 30 Eliz. departed out of his Service without License : The Plaintiff replies , that 6 of Sept. the same year , she departed out of his Service with License , and that the 4 of Octo. after she demanded the 100 l. and he refused ; absque hoc that she departed out of his Service the 4 of May , 30 Eliz. Sans License , and the Writ bear date the 18 of Octob. next after the demand ; so that the Defendant hath not 28 days after the demand , to pay the 100 l. Per Cur. the Issue is taken upon the departure out of the Service , and the Defendant in his Plea hath relied upon it , and the demand is not material , 2 Leon. p. 100. Monings and Warley .

Condition to pay a Robe and an Horse ; one cannot make several Issues , as he paid not a Robe , & hoc petit , &c. he paid not an Horse , & hoc petit , &c. aliter in Covenant , 2 Keb. 69. Young and Gosling .

Verdict .

DEbt on Obligation against C. per min●● pleaded , and Verdict , and Judgment in the Court of B. The Jury in assessing off Damages say , pro misis & custagiis , but do not say , circa sectam expenditis ; and there is no Verdict to warrant the Judgment , and it was Error , Stiles 164. Crible and Orchard .

After non est factum by one pleaded , the Jury find the Bond sealed by two , it alters not the Bond , but they are as distinct Deeds , 2 Keb. 872. 881. Zouch and Clay .

Condition for the payment of 300 l. within six Months after the Death of the E. of Huntingdon : The Defendant pleads the 1 of May. 39 Eliz. the Earl died , and that within six Months after ( viz. ) the 1 of Dec. 41 Eliz. he paid the sum : Issue was he did not pay it mode & forma : The Jury found he did pay it the 1 of Dec. 41 Eliz. and so for the Plaintiff ; this was Error ; the payment alledged the 1 of Dec. 41 Eliz. is void , it ought to have been enquired , whether he had paid it within the six Months ; and Judgment shall not be given on his implicit confession of Non-payment within the six Months , Cro. Eliz. 823. E. Huntington versus Hall .

The Verdict was non solvit , the said 40 l. super quartam dem Octobris , where it ought to have been supra quartam decimam ; Judgment on this Verdict , and Error brought ; yet amended , Cro. Jac. 185. Harrison against Fulstowe .

Condition for the payment of 100 l. by J. A. J. C. and J. V. or any of them , J. A. pleads , that he paid it at the day ; the Plaintiff replies , that neither the said J. A. J. C. nor J. V. nec eorum oliquis had paid it at the day ; the Jury find , that the said J. A. had not paid the said 100 l. Judgment pro Querente ; Error assigned , because the Verdict was not according to the Issue , for it might have been paid by any of the others : Per Cur. it s a good Verdict , the addition of J. C. and J. V. not mentioned in the Bar was but Surplusage , and their finding J. A. did not pay the Mony , its sufficient ; and if it had been proved that any of the other two had made the payment , the Jury should have been directed to find , that the Defendant had paid it by such , Cro. Jac. p. 6. Arscott and Heale .

Judgment , Costs and Damages .

WHere the Plaintiff had a Verdict for him , there Judgment is quod recuperet debitum & dampna , and Costs assessed by the Jury , and further de increment' per Cur. But if he had Judgment on non sum informatus , Demurrer , or nihil dicit , the Judgment is , quod recuperet debitum & damna , which include the Costs . In the Common Bench it is , quod recuperet debitum & damna occasione detentionis , 2 Rols Rep. 470. Broad and Nurse . Judgment quod recuperet debitum & 6 s. 8 d. pro damnis occasione , &c. and no mention pro misis & custag . & quod inquir' damna includes both , and so is the course of Entry , Cro. Jac. 420. Ashmores Case .

The Judgment was , quod recuperet debitum suum , and doth not say praedict ' , its good enough ; there is but one Debt , and the ideo in the Record , implies it to be the same Debt , Stiles 251. Port and Midleton .

The Court may tax Damages without a Writ of enquiry in Debt on a Judgment upon Bond , Siderfin p. 442. Roo and Apsley , H. 21. and 22. Car. 2.

Action of Debt on several Obligations , having but one Count and several Issues , some found for the Plaintiff , and some for the Defendant , and several Damages , but intire Costs . It was prayed that Judgment may be reverst as to part : But a Judgment cannot be reverst in part , neither as to persons or things , and Hobart p. 6. Miles and Jacob denied to be Law , 1 Keb. 232. Anonymus .

Debt sur Obligation of 16 l. Plantiff declares ad damnum 10 l. On non est factum , found pro Querente : The Jury gave the Plaintiff Damages 9 l. besides the 16 l. and he declares but to his Damages of 10 l. and so it exceeded : But Judgment pro Querente , for the Court may increase Costs , Noy 61. Wolf and Meggs .

The Plaintiff Demurs on the Defendants Bar , and the Court awarded the Plea good ; upon which Judgment the Plaintiff ●●rt Error , and therein the Bar awarded insufficient , and so the Judgment reverst , and the Judgment was that the Plaintiff should recover his Debt and Damages , as if he had recovered in the first Action , and not to be restored to his Action only , Yel . p. 41. Taylor and More .

In Misericordia , or Capiatur .

WHere the Party denies the Deed of his Ancestor , and it is found against him by Verdict , Misericordia shall be entred against him , and not a Capiatur . Where the Party denies his own Deed , and it is found against him by Verdict , a Capiatur shall be entred against him , 2 Sanders 191. Mortlack and Charlton .

Where the Defendant pleads non est factum , and after diverse Continuances relictd verificatione confesseth the Action , Qu. if Judgment shall be given on the Plea , or on the Confession . 8 Rep. Beechers Case is , that a Capiatur shall be entred ; but the better Opinion is , that the Defendant shall not be fined , but amerced , and a Misericordia shall be entred against him on his own Confession ; and so is the course to enter in Com. B. and B. R. also 2 Sanders 191 , 192. The reason is good in Cro. Jac. 64. Davis and Clark , and 2 Rols Rep. Gerard and Warren . For tho' the Defendant by his false Plea hath delayed the Plaintiff of his Action ; yet the Capiatur is not for the delay but for the falsity rather : And then when he comes in , and before Verdict confesseth the truth , he saves his Fine , for he hath put the Court to no trouble , 2 Keb. 694. 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. ● . Cowley and Lydiat● .

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. B●nks Case .

A. and B. are joyntly and severally bound to C. C. took-out a Process , against them by several Praecipe's , and had two several Judgments , and took out two several , Executions of one Test ( viz. ) Fieri facias against A. and Ca. Sa. against B. Q. if the Writs are well awarded ; here the Fieri facias was Executed for all , and therefore no Ca. Sa. shall Issue out , Winch Rep. p. 112. Holts Case .

If two are bound joyntly and severally to me , and I Sue them joyntly , I may have a Capias against them both , and the death or escape of the one , shall not discharge the other : But I cannot have a Capias against one , and another kind of Execution against the other ; because , tho' they be two several persons , yet they make but one Debtor , when I Sue them joyntly : But if I Sue them severally , I may sever them in their kinds of Executions : But yet so , if once a very Satisfaction is had of one , or , against the Sheriff upon an escape of one , the rest may be releived upon an Audita Querela , Hobart p. 59. in Fosters Case .

One of the Obligors was in Execution by Ca. Sa. and the Sheriff voluntarie permisit ad Lurgum : This was pleaded by the other Obligor : Judgment pro Querente , for the Execution against one is no Bar , but that he may Sue the other ; and tho' he escaped , so as the Plaintiff is entitled to an Action against the Sheriff , yet that shall not deprive him of his remedy against the other , aliter if he had pleaded the Sheriff , &c. by the License or Command of the Plaintiff , Cro. Car. 75. Whittacre and Hamkinson .

Two are bound joyntly and severally in an Obligation , one was Sued , and taken in Execution , and afterwards the other was Sued and taken in Execution , and afterwards the first escaped , and the other brought Audita Qu●rela , it lies not : And though the entry be quod Vnica fiat Executio , yet that shall be intended to be an Execution with Satisfaction ; and tho' one dye in Execution , yet the taking of the other is lawful . And the difference is , where one is discharged out of Execution , by the act of the party himself , to whom he was indebted , as by a Release , making him Executor , &c. there it s a discharge of both , but not where one is discharged by his own act or the act of a Stranger , 5 Rep. 86. b Cro. Eliz. 573. Blomfeilds Case .

Tho' these words are not entred ( where two Obligors are Sued by several Pracipes , and several Declarations and Jugdments ) vnica tantum fiat Execution , yet it s no Error , 1 Rols Rep. 44. Banks and Chamberlain .

Smith recovered against C. in Debt on Bond 40 l. and 110 l. in another Action , and in another Action C. recovers against Smith 100 l. Smith desirous to be out of trouble moved the Court , that all shall be defaulted out of his Damages , which he had recovered against C. but C. would not consent , and because C. was not dwelling in any certain place , Chamberlein and Doddrige Order , that Smith shall pay his Mony to the Sheriff , and the Sheriff to bring it into Court to remain there , so that Smith might have his Execution as well against C. as C. against him , 2 Rols Rep. 327. Smithson and Cage .

Where and by what means an Obligation is good in its Creation , may be defeated , gone , extinct , or discharged by matter ex post facto , in deed or Law .

By Concord or Agreement . Vid. supra .

By Defeasance . Vid. tit . Defeasance .

By Release in Fait . Vid. titulo Pleading Releases .

By Release in Law .

IF a Feme Obligee takes the Obligor , or one of the Obligors to Husband , it s a Release in Law of the Debt ; but if Feme Executrix takes the Debtor to Husband , it s no Release in Law ; but only suspended during the Coverture : For otherwise , it might be a Devastavit , which is a wrong the Law will not suffer , 8 Rep. 136. Sir John Needhams Case , Cro. Litt. 264. b.

If there are two Women Obligees , and one of them take the Obligor to Husband , it s a good Release in Law , Co. Litt. 264. b.

If the Obligee make the Obligor , or one of the Obligors his Executors , it s a Release in Law of the Debt ; yet it is not absolutely a Discharge of the Debt , for the Debt remains as Assets in the Hands of the Debtor Executor ; and is quasi a Release in Law , because he cannot be Sued , but it s a meer suspension of the Action : But where Feme Debtee takes Debtor to Husband , or a Man Debtee takes the Debtor to Wife ; this is a Release in Law for ever ; and personal Actions once suspended , are ever suspended .

But when the Obligee makes the Executor of one of the Obligors , ( who is chargable to that Debt ) his Executor , it s not a Release in Law of that Debt ; for he hath nothing thereby in his own Right , but is only to use an Action in Right of another , Cro. Car. 372. Dorchester and Web.

The granting of Letters of Administration to one or more of the Obligors , is no Discharge of the Obligation ; or if the Obligor make the Obligee his Executor , it s no Discharge , 8 Rep. 136. Sir John Needhams Case , 1 Keb. 313. Locker and Smith .

When it s said , if once suspended , ever suspended , that is meant where the Action is suspended by the act of the Obligee : Obligee makes the Wife of one of the Obligors Executrix , and dies ; the Action is suspended and extinct . The Release and Discharge in Law of one Obligor , Dischargeth the other , Hob. p. 10. Fryer . and Guildridge .

If Obligee makes the Obligor Executor , this is a Release in Law of the Action , but the Duty remains , for which the Executor may retain so much Goods of the Testator , Co. Litt. 264. b.

In what Cases Extinguishment , or Discharge of part of the Condition , shall be a Discharge of the whole .

IF a Man be bound to Build an House , and the Obligee Discharge him of part , it s a Discharge of the whole , 4 H. 7.6 . b. So if a Man be bound to go with A. B. and C. and the Obligee Discharge him of C. he is Discharged by this to go with A. and B. the Condition is entire . ibid.

If the words consist of two parts in the Disjunctive , &c. and both are possible at the time of the making ; and before the time of performance , one of the things becomes impossible to be done by the act of God , of the Law , or of the Obligee , in such case the Obligation is discharged for ever . Vid. supra sub titulo Disjunctive Conditions , and Tender and Refusal .

If the Condition be in Advantage of the Obligor , there if be discharged of part , he shall do the remainder : As one is bound to Till all my Land in D. and I discharge him of parcel , he shall do the remaining ; but if I let 20 Acres to a man rendring Rent , and after an Obligation is made for payment of it ; if Obligee enter into parcel , the Obligation is dissolved in the whole for all this is in Advantage of the Obligee 4 H. 7. b.

If the Obligation depends upon some other Deed , and that the Deed becomes void , in this case the Obligation is become void also ; as Bond conditioned for performance of Covenants in an Indenture , and afterwards the Covenants are discharged or become void , by this means the Obligation is discharged for ever : So Condition to pay Rent on a Lease pur Ans , and the L●●see is evicted by Eigne Title , whereby the Rent in Law is gone , the Obligation is gone also ; but aliter if Eviction be of part of the Land . Vid. supra .

Bond void by Interlineation .

Vid. supra sub titulo non est factun , 2 Balst . 247. 11 Rep. 27. 1 Rols p. 39 , 40. Cro. El. 626.

By breaking off one of the Seals .

Vid. supra sub titulo non est factum .

By Rasure .

Vid. supra tit . non est factum , & 1 Leon. 182.

Discharged by Act of Oblivion .

DIscharge of part , is a discharge of the whole , 2 Keb. p. 788. Vere and Langley against Cumbden , &c.

If a Deed be delivered to be Cancelled to the party himself , yet if it be not Cancelled , and the other gets it again , it remains a good Deed , Cro. 38. Eliz. Trin. Cross and Powel .

A TABLE OF REFERENCES TO All the Approved Presidents of Declarations , Pleadings , &c. that are Extant concerning the Obligations and Conditions , digested under their proper Titles .
Narrationes in Debito . Sur Bill . SUper Bill Penal , payable sur demand , Modus Intr. p. 169. Sur Single Bill , 1 Browne 81. Sur Bill versus 2. Clark's Manual 213. Sur Bill sine Penalitate , Cl. Man . 201. Sur 2 Bills Penal , Hern. pled . p. 300. Sur Bill Penal sine die solutionis , Tompson p. 118. Sur Bill sans date , Ashton 218. Modus Intr. 177. Sur Bill Penal , cum speciali Conditione , 1. Browne 174. Pro Pecuniis payable super vistum Bille , Ashton 182. Sur single Bill , & emisset , & mutuasset , Idem 177. Sur Bill solvend' , cum 1 quarter Brasii ●●nderetur in London pro 20 s. 1 Browne 189. Pro solutione 100 s. querenti si ipse infra tales dies & horas iret , vel curreret , cum tali pondere a tali loco ad talem locum , 3 Br. 127. Sur Bill Obligator' solvend' querenti talem summam , quando defendens foret aetatis 21 ans , 1 Browne 184. De denariis solvend' ad diem maritagii Defendentis , ad diem maritagii filie vel mortis , 1 Brownl . Decl. 187. Ib. 53.3 Brownl. 126. Pro payment des deniers & delivery des biens ad diem maritag' de Quer' , & averment quod tali die duxit Uxor' A. B. Bendl. Lat. Red. 175 , 186. Pro solutione denariorum & deliberatione bonorum Quer' , ad diem maritagii ●el mortem Defendentis , 3 Brownl. 126. Modus Intr. 159. Pro Survivor , de denar' solvend' quando Deus faceret Defendent' habilem ; Bar' quod non est habili● , Asb . 201. Pro solutione denar' in 3 dimid anni ( viz. ) partem ad nundinas , aliam partom ad Festum , stum , & resid' ad nundinas , Rast Entr. 322. Sur a Bills pro solutione monetae Flandriae ad separales nundinas , Ra. Ent. 158. ● Brownl. 88. Super Bill Indentat' pro solutione denariorum rum ad Festum , & per Quarterial' solutiones , Ra. Ent. 229. Super Bill 20 l. ad solvend' 61. 12 s. tali die & ad solvend' pro omni Cervisia deliberand' Def. per Quer' ante eundem diem , 1 Brownl . 98. Brownl . Lat. 183. Sur Bill Penal' pro solutione denatiorum ad 2 dies sans protestation , quod Def. non solvit ad primum diem , Ra. Entr. 178. 3 Brownl. 125. Ad separales dies solutionis , Cl. Man . 254 , 282. Sur bill Penal sursum reddere terras custumar' , 1 Browne 174. Mod. Int. 169. Ubi Def. satisfecit Quer' de parte 1 Browne 174. Versus 1 sur joynt Bill lou l'anter est Utlagat' , 2 Brownl. 125. Ad deliberand' Quer' Literas Patontes sur retome Defendentis a London , vel ad solvend' Quer' 161. 1 Brownl. 78. Sur Bill Obligatory , Modus Intr. 160. Super separales billas Obligatories , Modus Int. 149. Tompson . 114. Sur bill Penal tam ad solvend' denar' quam ad faciend' actum , Brownl . Lat. 170. Sur bill Oblig' ubi duo conjunctim tenentur unde unus Utlagatus , & Quer' Narrat versus alterum . Brownl . Lat. fo. 197. Super bill Obligator' cum separalibus diebus solutionis , ac cum provisione quod fi Def. defecerie in aliquo dierum solutionis tota summa in billa content' forisfact' fuerit , Brownl . Lat. 197. Sur bill Obligat' ad solvend' denar' super diem maritagii , vel diem mortis , Brownl . Lat. 198. Simile ad solvend' denar' Quer' ( in tali Anno ) si ipsa tam diu viveret , Brownl . Lat. 198. Super billa Obligatoria in qua Def. Obligasset se deliberate Quer' scriptum Obligatorium de penalitate 6 l. ante talem Festum , Id. 210.
Sur Obligations . MOdus Intrandi 163. Cla. Man . 200 , 201. Pro denariis solvend' in Festo , Rast. Ent. 160. Co. Ent. 130 , 137. Plow. 60. 18 H. 6. 8. Mod. Intr. 160 , 163. Pro denar' solvend' sur request , Co. Entr. 126 , 168 , 244 , 8 Rep. 80. Mar. 272 , 281. Pro solutione denar' ad Nativitatem primogeniti filii Querentis , Tompson 115. Narr' sur Obligation ove condition al payer meinder summe . Ra. Entr. 178. b. Sur Obligation pro Flemish . Mony fait en auter Realm , & payable al Marts ouster le mere , & Plea & Issue , Ra. Intr. 158. b. Narr' sur Obligation in B. R. cum Averment abi Oligation fuit fait , & confess en le Narratione quod recepit parcel , Ra. Entr. 178. a. b.
Sur Recognizance , & Statutes . NArr' sur Recognis . in B. C. pris en l'Escheq' per Administrator ; Bar per Release del Intestate ; Repl' Non est factum , Ra. Ent. 192. a. b. Narr' sur Recognis . per Attorney del Roy pris en chancery d'appearer devant le King & Council , & interim to keep the Peace , Id. 192. b. Pro Rege sur Recognis . Idabid . Sur Recognisance pur bon port , Id. 199. Sur Recognisance in Cancellaria , Ash . 191. Tomp . 127. Placita gen' & spec ' 238. Sur Recognisance in Scaccario , & Recogn' certified per breve , Ra. Ent. 192. Simile , & separales dies solutionis , Id. ibid. Det sur Recognisance in C. B. Tomps . 125 , 129. — coram uno Justic' de Banco , Brownl . Lat. 209. Det pur le Roy sur Recognisance , Ra. Ent. 198. b. Sur Recogn' capt' coram Justic' in Wallia , 1 Browne 176. Sur Recogn' capt' coram Capitali Justic' de B. 1 Browne 176. Det sur Recognisance in nature de Statute Staple , Tomps . 123. Sur Statute Staple fait al un Attaint per Parliament , Ash . 205. Count pur le Roy sur Obligation forfeit al Roy fait al 2. lou un deveint utlagatus , Ra. Ent. 198. b. Bar per grant del Roy del Obligation al joynt Obligee que non fuit Utlagat' . Count per Grantee del Roy del forfeiture del Recognisance del Peace . Bav per nul tiel Record , Id. 199. a. Det sur Record extra Cancellar' sur Recognisance & Placitum . 1 Browne 186. Pur Grantee del Roy sur Obligation fait al un qui commit Felony , unde inquisitio capt' coram Coronatore , Ash 205. 1 Brownl. 208. Sur Recogn' conus en B. R. Brownl . Lat. 223. Versus Manucapt' in placito debiti 50 l. sur Recogn' capt' coram Cap' Justic' de B. unde breve Orig' , Narr' li. lo. Condic' performat' veredict' Judgment superinde , Ca. sa . & non est Invent' . Id. 210.
Bars sur Recognisance . BAr per Release , Ra. Ent. 192. Debt sur Recogn' pro custodia Pacis unde breach pur Assault ; Bar per son Assault demesne , Id. 193. Nul tiel Record' , Repl' habetur tale Record' , Tomps . 180. Ra. Ent. 199. Sur 2 Obligations , Ash . 179. Sur 3 Obligations , Modus Int. 549. Sur 3 Oblig' & un non est forisfact' , 1 Sanders 286. Sur Obligation sans dare , 3 Brownl. 124. Id. Lat. 196. Sur Oblig' dat' ●●mo die & deliberat' altero , 18 H. 6.8 . Sur Oblig' primo deliberat' ad certum diem post dat' inde placita gen' & special' , p. 277. Sur Oblig' nomine duorum , ubi unus corum non sigillavit , Ashton . 200. Sur Obligation & mutuat' , 1 Browne 179. Sur Obligation ad performandandas conventiones in quibusdam Indent' specificat' 2 Browne 68. Co. Ent. 130 , 132 , 3 , 4 , 5. Magn. Chart. partit . Content . Brownl . Lat. p. 246. Sur Obligation post generalem perdonationem allocat' Def. cum reversat' Utlagar' & comparentia Defendentis recitat' in Narratione , 2 Browne 84. Sur Obligation pro performance del Award , Ra. Entr. 154 , 155. Sur Oyer , que Def. donera tiel sufficient Release al Testator en le Prerogative Court de Canterbury , devant tiel jour come sorra thought fit per le Judge del mesme C●●● Co. Ent. 129. b. Sur Special bill ; Obligatory ove penalty pur non performance del Agreement , Placit . gen' & spec ' 231. Condition a payer al divers jours ; Bar que il ad paid al les jours , Repl' que il ne paid tiel jour , & Issue , Ra. Entr. 185. a. b. Sur Condition d'appeareriend' Eschequer , & icy discharger le Vicount , Ra. Ent. 181. Per surviving Obligees , Brownl . Lat. 194 Super Obligatione prolat' per Ball versus Richards , unum Collectorum Reventionum Novo Rivi duct' ad London , Id. 204. Sur Obligation cum Conditione ad indempnificand' Quer' ab omni damno ei evenien' occasione quod ipse Obligat' fuit cum Def. in septem Obligationibus ad solvend' 20 s. per annum quarteriatim , Id. 228.
Pro Quibus . NArr' pro surviving Obligee , 1 Browne 175. Tompson 115. Per survivor sur Obligation fait al 3 3 Brownl. 120. Modus Intr. 158. Det sur . Oblig' quando un des Obligees est mort , Tomp . 115. Per Camerar' Civitat' Lond ' , sur Obligation fait al auter Camerario , Id. 134. Pro Attornat' versus Attornat' , Modus Intr. 158. Per Bill versus Attorney sur Obligation , 1 Browne 62. Rast. Entr. 178. 3 Brownl. 115. Pro Attornat' , Mod. Intr ' . 152 , 153 Pro Abbate versus Major' , Vic' & Communitat' Civitat' , sur Obligation fait per predecessores Defendentis precedenti Abbat' , Ra. Ent. 151. Pro Abbatissa sur Obligation fait al predecessor , Id. 178. Pro viro & uxore , sur Obligation fait al uxor' sole , Ash . 181. Mod. Int. 160 , Pro viro & uxore versus virum & uxorein , super Obligation' fact' per uxorem solam uxori sole , Ra. Ent. 179. Et Mainprize per Feme , Mod. Int. 171. Sur Obligation fait al Plaintiff sole , & Feme Covert de quel Baron ayant Notice disagree , Ash . 218. Pro 2 nuper Maritat' post divorce causa precontractus , super Obligation eis fact' . Det per Baron & Feme sur bill Renal fait al M. le Feme dum sola fuit . Le Def. confesse le Bill fait per luy , & un T. G. joyntment & severalment . T. fait sa volunt , & J. sa Feme Executrix & mor' , J. administer & marie J. G. & mor' , J. G. administer' de bonis non of T.G. M. marie J. C. J. C. fait un General Release al J. G. le Executor del T. G. & les Averments . Replic' devant Release fait J. la Feme mor' , & Demur sur ceo , Hern p. 297 , 298. Pro Camerario Civitat' Lond sur Obligation fait al auter Camerario , Tomp . 134. Det per Assignment de Commissioners Bankrupcy , sur Obligation fait al Bankrupt , Tomp . 106. Narr' sur Obligation per un des Execution del Evesque puis mort del auter . Condition performed pleaded , Co. Ent. 128 , &c. Per Patentee sur grant d'un Obligation forfeit al Royn ratione felonie commiss . per l'Obligee , Brownl . Lat. 181. Sur Obligation fait al Evesque per Tutor d'un Infant , Id. 220.
Versus que . VErsus Attornat' , 1 Browne 62. Ra. Ent. 178. 3 Brownl. 115. Versus servientem ad Legem per Bill sur Obligation , Ra. Ent. 178. Mod. Int. 158. Plea al Jurisdiction quod Serjeant ne serra sued per Bill . Demurr' & Joynder , Ra. Ent. 178. b. Versus Magistrum domus super Obligation sigillat' Communi sigillo , Id. 250 , Modus Int. 261. Versus virum & uxorem super Obligation fact' per uxorem dum sola fuit , pur performance Conventionum in quibusdam Articulis specificat' , 2 Browne 63. Versus baron & feme sur Bill Penal fait al feme sole , Hern 297. Bill versus un Filazer del Com B. sur Oblig 200 l. & sur ceo un peremptory Rule , quod nisi Def. comperuit ( ea●i' die ) abjudicetur . Cur' , donque le Plaintiff Count sur Bill avantdit versus def. le quel est entre , ove forejudger versus Def. come Attorney del Court , Brownl . Lat. 219. Versus Magistrum , & Brotherhood & Sisterhood del Hospital , Mod. Int. 167. Versus 2 conjunctim , ubi unus Utlagatus & alter comparuit , 1 Browne 177. Tomps . 114 Sur Obligation versus Ordinarium , Placita gen & spec ' 291. Versus Manucaptor sur priviledge in Com' Banc. origin' Narr' li. lo. Conditions performed , Judicium super Veredict' Ca , sa . Non est inventus , 3 Br. 176. Versus Manucapt' in Trans . post exitum junct . in Banco Regis , unde triatio ad barram & judicium pro Quer' , Ub. 57. Versus Manucapt' in debito in B. R. unde Execution agard post 2 Nichils retorned ▪ Ash . p. 204. Vid. pluis infra . Versus Ordinarium , Placita gen' & spec. 291.
Versus Haeredes . VErsus fratrem & hered super Obligation ubi frater Def. & alter nominantur , & frater Defend . tantum si●illat , 1 Browne 177. Versus filium & hered' , Co. Ent. 126. b. Ra. Ent. 172. Plowd. 438. Bar per riens per descent . Simlle sur Obligation de Stat' Staple , Ash . 191. Versus filium & hered' Infra aetatem , 1 Brown 195. Tomps . 117. Versus Consanguineam , Hern 307. Simile versus hered' Avunculi , 3 Br. 121. Brownl . Lat. 195. Versus fratrem & hered' , ubi alius nominat' in scripto non sigillavit , Hern 320. Ash . Ash. 200. Versus 5 viros & uxores , & 1 vid' Sorores & Coheredes , Co. Ent. 126. Versus 2 viros & uxores , sorores & filium , alterius sororis & coheredis , Ash . 231. Versus 2 coheredes terrarum in Gavelkind , 1 Brownl. 128. Ra. Ent. 208. b. Brownl . Lat. 181 , 191. Simile ubi alter coheres est waviat' , Ra. Ent. 208. Versus fratrem unum hered' & consanguineum alterum hered' & consanguineum alterum hered' , Reg. 140. Narr' versus Executor del Heir sur Obligation fait per le pier ; confesset . l' Action , & riens per discent preter Judgment & Execution , Ra. Ent. 172. b. Narr' versus hered' sur Star . Staple , Ash . 191 5 Rep. 36. 6 Rep. 47. Narr' en Det versus le Heir lou 2 nominantur en le Obligation & un tantsolement sealed , Hern 320. Versus hered' per virum & uxorem ( Executricom , & un C. S. Coexecutorem cum Uxor' ) super Oblig , Brownl . Lat. 194. Oblig versus 3 heredes in Gavelkind ▪ Bar per un que est Infra aetat' & comperiut per Guardian , & placitum , demur pur Nonage , Id. 195.
Pur Executors & Administrators . PRo Executore sur Obligat , Co. Ent. 139 145 , 246. 1 Brownl . 83. Cl. Man . 200. Pro Executi sur bill Oblig ad solvend 100 l ad certum diem futur' si Def. ramdiu viveret , Brownl . Lat. 108. Pro Executor' sur bill Penal , Mod. Int. 151. Pro 2 Executors sur bond & Bill Penal . Idem 164. Pro Executor' superviventis sur Obligation fait al 2 , Ra. Ent. 323. Pro Executor' versus Executor sur Obligation , 1 Brownl . 86. Mod. Int. 171. Pro Executor' versus Administrator , Modus Int. 157. Pro Executor executoris vers. Executor ; Ra Ent. 323. Pro Executore Executri● 〈◊〉 194. Sur bill Perial per Executrix & ●a baron ▪ M● . Intr. 167. Per Executor versus Heir 〈◊〉 bill Ob●tory Ct. man . 208. 1 Browne 168. Per Executor ubi querens cepit in vir● man . 244. Sur bill Obligatory per Executor versus Executor en l● simul cum alsis Executor 〈◊〉 fecer defair , Placita gen & spec 261. Per Executor sur Oblig apres severance de ●on Executor , Id. 270. Ru. Ent. 330 , ● Pro Executor sur several bills Obligatory , Tomps . 114. Pro 2 Executors versus Stannatorem Com' Devon ' , sur Oblig' , Brownl . Lat. 178. Pro Executore & Coexecutrice sur Obli● , ubi Executrix cepit in virum , I● 194. Per 2 Executors , 1 Coexecutor esteant defunct vers. Executor , Hob. Ent. 227. Per Administrator versus home & sa sem● sur Bond , la feme esteant Daughter & Heir al Obligor , Modus Int. 167. in Scaccario . Pro Administrator sur Bond , Cl. man . 20● Ra. Ent. 320. bis . Per Administrator durante minoritate Ex●cutoris , 1 Browne 167. Brownl . Lat. 198 , 199. Per Administrator de bonis non , 1 Browne 172 , 248. Per baron & feme Administr' del Obligee . Tomps . 134. Ra. Ent. 324. 1 Browne 87. Vide pluis quoad formam Narr' , Towns . Tab. 94 , 95. Per Administrator versus Executor' , Cl. man . 246. Pro Administratrice & ejus viro super billa Obligat' ad solvend' denar' super diem maritagii in consideratione receptionis Annuli aurei cum Adamante in ●o affix' , Brownl . Lat. 175. Pro Administratore super billa Obligat' ; ubi Def. obligasset se solvere intestato 20 l. ad diem maritagii filie natu-minoris sue , vel ad diem mortis ejusdem filie , Ide● 198. Pro Administratore versus 3 Heredes in Gavel-kind . Id. 195.
Versus Executors & Administrators . VErsus Executor sur Obligation , Modus Int. 168. Cl. man . 204. Ra. Ent. 321. Co. Ent. 127 , 268. Versus baron & feme , la feme esteant Executrix devant marriage , Modus Int. 171. Versus Executor Exec' simul cum Coexec' sur Bill , Ra. Ent. 329. Versus Exec' Exec' , Co. Ent. 150. Pro 3 viris & 1 uxore , sur Obl' fait a● ' 2 & la feme . Versus Executor sur 2. Obligations fait per Testatorem pro 40 l. 2 Browne 73. Versus Exec' sur bill Obligatory pro solutione denar' ad Nativitatem primogeniti filii , quer' , Tomps . 115. Versus baron & feme Executrix del Obligor , Tomps . 149. Placitat' quod Judic' habuit fuit versus Defendant dum sola fuit , & quod plene administravit praeter 20 l. qu● executione Judicii onerati existunt , 〈◊〉 . Repl' , quod Judic' habuit fuit per ●udem . Versus Executor' per virum & uxorem super Oblig' fact' uxori dum sola fuit , Brownl ▪ Lat. 255. Versus Administrator' , Cl. man . 206. Co. Ent. 149. Versus Administrator' simul cum Coadministratore , Ra. Ent. 322. Versus baron & feme Administratricem sur diverse Specialties , 1 Brownl . 85. Id. Lat. 174. Versus Administrat' Administrat' sur bill , 1 Brownl. 183. Modus Intr. 154. Brownl . Lat. 173. Versus Administrator' sur bill Pe●al , Mollus Int. 155. Versus Administrator' de bonis non , Cl. man . 207. Versus Administrator' per Executor' , Mod. Int. 157. Versus 2 Administrators lou un tant appiert lauter esteant Utlagat' , 1 Brownl. 176. Versus Administratix , & son baron sur Obligation pur performance des Covenants en un Indenture del demise d'un' Wine-Licence , Brownl . Lat. 212.
Pleadings . QUod scriptum talem in se continet Conditionem , videlicet quod , &c. Et sic Placitat' ad judic' sine petitione auditus scripti vel Conditionis , Ra. Ent. 154 , 155.
Barr. Sur Counterbond , and to save harmless . PUr saver harmless : Placitat' , quod non fuit damnificatus : Replic' , & monstre coment fuit damnificatus per Judicium recuperat' versus cum . Rejunctio , quod Judic' habit' fuit per fraudem , Tomps . 145. Narr' sur Condition a saver le Plaintiff harmless versus un stranger ; Defend ' dit , que stranger port Action versus le Plaintiff , & ad Judgment , & il paid luy & saved luy harmless : Nul plea ; doit aver pleaded , non damnificatus , Co. Ent. 139. Puis Oyer del Condition , Mod. Int. 191. Bar per non damnificatus ; Repl' , quod denar' fuer' insolut' , & Obligee fait Executor , qui arrest Quer' per Lat' & detinuit quousque solvit denar cum misis . Demur inde , 3 Brownl. 174. Similis Bar ; Renl' , quod denar' fuer' inso●● per quod Obligee minabatur & con●utur arrestare quer & quod querens illos ei sp●vit , & sic damnificatus , Ash . p. 247. Similis bar ; Repl' , quod feme prist baron , & puis ils sue Original & Cap' sur Oblig' pro denar' insolu● ' per quod querens pro ex●neratione sua a scripto & solutione parti debiti expendidit 30 ● Rejoynd , ●nd Def. post Original & Cap' prosecut pro exoneratione querentis solvit tot' debit & mis. secte , & delib' quer' scriptum cancelland' , & traverse quod querens expendidit 30 s. Issue inde●tender , sed Def. nil dicit , 1 Brownl. 107. Id. Lat. 188. Replic' , quod Plaintiff solvit debit' ad diem & issint damnificat' , Modus Intr. 19● 192. Non damnificatus per 3 scripta specificat' , in Conditione , nec per eorum aliquod vel sectam in Lege superinde , H●r . 302. Quod Def. solvit denar' ad diem , & sic indempn' conservavit querentem . Reali● Protestando , quod non indempn' conservavit pro placito dicit , non solvit denar' ad diem , 3 Brownl. 118 , 119. Idem Lat. 193. Similis bar ; Replic' , non solvit denar' , 3 Brownl. 119. Quod Creditor obtinuit Judicium versus quer' in B. R. & Def. super requisitionem quer' solvit denar' in exoneratione Judicii , & Demur' inde , Co. Ent. 199. Bar by non damnificatus ; Plaintiff Repl' , quod il suit sued al Exigent , & issint damnificat' , Modus Int. 195. Ad Obligationem pro securitate querentis de altera Obligatione 200 Marcarum : Bar , per non damnificatus ▪ Repl' , quod R. S. recuperavit 200 Marcas versus eum coram uno Vic' Lond ' in computatorio suo . Reioynd , quod non habeatur tale Record' recuperationis : Surrejoynd ' , quod habeatur tale Record' & petit breve ad certificand' Justiciar' utrum habeatur tale Record' necne , 1 Browne 208 , 209. Oblig' a saver harmless ; Pled ' , quod solvie denar' & sic acquietavit , Tomp . 158. Plaintiff non est damnificatus ( le Plaintiff esteant bayle ) ; Repl' , quod suit damnificatus , & monstre coment ( viz. ) per Judicium sur Soire fac' versus ipsum , Tomps . 171. Al Counterbond cum Conditione ad indempnem conservand' un Surety . Def. placitat , quod solvit denar' in Conditione ( tal' die ) & sic indempnem conservavit . Repl' , Protestando non indempnificavit , &c. pro placito non solvit , prout , &c. Rejoynd ' , quod solvit ad exit' superinde , Brownl . Lat. 193. Alitèr , quod Def. solvit al Obligee 31 l. 10 s. ( tali die ) in Aula Hospitii de Cliffords-Inn . Et perinde exoneravit quer' à solutione denar' in Conditione ratione cujus quer' non damnificatus suit per Def. de praedict' Oblig' 60 l. per Quer' & Def. al Obligee fact' & deliberat' : Repl' , quod D● non solvic praedict' 3 l. 10 s. al Obligee , pro●● &c. Brownl . Lat. 194. Alitèr per Administratricem quod inte●tatus in vita , sua solvit denar al Obligee 〈◊〉 Conditionem : Et sic Quer' fuit inde● conserv : Repl. protestando , quod 〈◊〉 status non indempnem conservavit quer , prou● , &c. Pro placito , quod non solvit in vita sua denar' al Obligee secundum Conditionem , Idem 194. Al Count super Oblig' cum Conditione ad indemp●ficand' Quer' ab omni damno evenien' occasione , quod ipse Obligatus fuit cum Def. in 7 Obligationi●us ad solvend' 20 s. per Annum quarteria●im , ● termino 7 annorum , si Def. & Obligee tamdiu viverent . ' Bar , per non dampuisicat' : Repl' , quod Quer' fuit damnificat' ( eo quod Def. non solvit unam quarterialium solutionum secundum Conditionem septime Obligationis ) per solutionem 20● . al N. le principal Obligee . Repl. protestando , quod Quer' non solvit predict' 20 s. Pro placito , quod N. relaxavit Def. ante diem per Quer' in replicatione sua pretens . Morat' in lege specialis ad rejunctionem . Eo quod est decessus a barra sua , &c. Id. 228 , 229. Repl' Vic' ad placitum Ballivi de non damnificat' , Quod Def. existen' ballivus Subvic' permisit bona seisi●a per Fieri fac' fore rescussat' & asportat' , per quod Quer' devenit onerabilis , &c. Id. 256. Al Action de De● sur Counterbond Def. dicit , quod ipse solvit al principal Obligee 10 l. 10 s. juxta Conditionem , & sic bene & sufficien' indempnem conservavit quer' ab Obligatione del principal . Obligee ; ac de omnibus ▪ Actionibus sectis custag damnis Judic●s executionibus & demandis predict Oblig' concernen juxta Conditionem , Brownl . Lat. 257. Aliter , quod Quer a tempore confectionis scripti ( al principal Obligee ) hucusque non fuit damnificatus proinde seu de aliquibus custag●s damnis seu detrimentis ratione ejusdem scripti surgen' juxta conditionem , Id. ibid. Narr' sur Counterbond versus Def. unum Collectorum reventionum Novi Rivi duct' usque London . Bar' puis Oyer del Condition' que fuit ad indempne● servand' quer' ab omni damno ei even ratione Def. existen' Collector' partis reventionum Novi Rivi. &c. Def. plead , quod Quer' ( ad aliquod tempus ante breve impetrat' ) non fuit damnificatus ratione predict' Oblig' in Conditione predict' recitat . Repl' , quod Def. recepit 23948 l. 4 s. 6 d. de redditu & revention' Novi Rivi● quas non solvit Thesaurario Societat' dicti Rivi : Unde Quer' minatus fuit implacitari proinde ratione cujus quer' coactus fuit agreeare ad solvend' 150 l. &c. Rejoynd , Def. confesse receit de 21591 l. 6 s. 5 d. Mes que il ad paid ceo al Treasurer de dit Society within one Month after . Et traverse verse la receit de 23948l . 4 s. 〈◊〉 prout , Brownl . Lat. 208. Al Obligation ove Condition , que 〈◊〉 dempnefiera le Plaintiff d'un Bond , en quel il deveign oblige pur performance des Articles per un J. J. Bar , que J. J. performe les Articles & que le Plaintiff , fuit damnifie . Demur' , Winch's Entry 187 , 188. Condition to save the Plaintiff Harmless of all Actions and Damages that may arise upon the release of the Defendant out of Execution ( being then in Execution at the Suit of the Plaintiff ) from all persons that may molest him concerning the said Release : Bar , that a Plaint was affirmed in the Court of the King at York against A. N. for 100 l. and that the Defendant and one H. was his bail . The Plaintiff had Judgment against N. and also against the bail , and the Defendant upon this was taken in Execution , and the Plaintiff releas'd him , which is the same Release in the Condition , and so concludes he saved him harmless . Repl' , The Plaintiff confesseth the Plaint , Bail and Judgment ; but saith , before the Defendant was taken in Execution , H. the other Bail gave him Security for his Mony ; and in consideration of this , the Plaintiff promised H. that he would take Execution against the Defendant , and that he will not release him without the consent of H. upon which H. had procured him to be taken in Execution ; And then the Defendant moved the Plaintiff to discharge him , who acquainted the Defendant with his Promise to H. and upon this the Defendant makes the Obligation with Condition prout , and then he discharged him : And H. brought an Action against the Plaintiff in B. R. for breach of the Promise , and had recovered 150 l. Et sic fuit damnificatus . Demur' general inde , Winch. Ent. d 271 usque 280. Vid. this Case in Hob. 269. Wilden and Wilkinson , & supra : Per Cur' , the Action well lies . Condition to save harmless the Town of C. from the charge of E. S. Sister of the Defendant , and the Child with which she was pregnant . Bar , per non damnificatus : Bar , That the said E. S. had a bastard Child born in the said Town ; and the said Town was , by a Sessions Order , charged with the Keeping and Maintetenance thereof . Et sic damnificatus ; Demur' inde , Winch p. 325. Condition to save harmless from an Obligation made to the Queen , for the true Execution of an Office : Bar , per performance of the Condition of the said recited Obligation , and that the Plaintiff never was damnified . Demur' inde . Id. p. 326. Count sur Obligation for the Governours of the Hospital of Bridewell , and St. Thomas Hospital . with Condition to discharge the City of London from a bastard Child . The Defendant pleads Letters Parents for the Incorporation of Bridewell : and it appears not that the said Governours have power to take or sue such Obligation . Demur' inde . Winch. Ent. p. 328. Judgment for the Plaintiff .
Pleas en Abatement . IN Debt fur Oblig' Def. plead al breve , quod sont deux Vills de C. & nul sans addition . Repl' , Estoppel per Obligation a pleader tiel Plea . Demur' inde ; & respond' ouster . Ra. Ent. 159. b. 160. a. Special Matter , quod il fuit guest in L. & non commorans in L. Repl' , quod il suit commorant en L. Demur' & respond' ouster , Id. 160. Plea al breve , quod puis darreine continuance solvit parcel & issue sur ceo , Id. ibid. Misnosmer pleaded , Cl. Man . 402. Repl. 435. Plea al breve Receipt of parcel per Acquittance . Repl' , quod ceo fuit pur parcel de auter Debt , Ra. Ent. 160. Repl' , quod fuit pur parcel del Debt demanded , & Issue . Plea al breve , quod un des Plaintiffs est mort devant impetration brevis illius . Replic' , quod & superstes , Id. 161. a. De plaint , pur ceo quod Def. fuit obliged al un J. S. sicome al Plaintiff en un escript , & nest specified en le plaint , ou le dit J. S. est vivant ou nemy , 1 Browne 4. Plead variance enter le Declarat' & le Obligation . Repl' , quod def. no dolt pleader ceo plea en abatement puis Imparlance . Modus Int. p. 200.
Bar per Muas . AL Der sur Obligation , Ra. Ent. 150. bis . Wilk . 272. 〈…〉 Simile fur Bill , 1 Brownl . ●2 . Simile per Communitatem , Ra. Ent. 〈…〉 Simile per Canonico● , 〈…〉 Al 2 Bills de mosine dato , Hern ●0 Quod Quer' per alios minatu● fuit Def. de captione & imprison' nisi fecerit scriptum , 28 H. 6.8 . Cro. Eliz. 〈◊〉 . Per Minas Major' de Lond ' al Obligation fact' nuper Camerario Lond ' , al 〈…〉 modo Camerar' Successor , Tomps . 〈◊〉 . Bar per Minas ; Repl' , quod Def. 〈◊〉 lam ex spontanea 〈…〉 metam Minarum , Brownl . Lat. 172.
Bur by Dunese . SUr several Obligations 〈…〉 Al Debt sur Oblig' , 〈…〉 Ash . 2●8 Cl●man . 394. Det sur Obligation versus Major' , Vic' , & Communitat' . Bar' , quod Major fuit imprisonat' quousque ipse Vic' & Communitas fecer scriptum Demur' inde , Ra. Ent. 251. Bar per duress ; Replic , quod Def 〈◊〉 fuit quer' in 18 l. quod Quer' procurant cum arrestari per warr' sur Lat' , Ash . 〈◊〉 Repl' quod Def. commissus al' Fleet 〈◊〉 cution' ad sect' quer' fec' script' pro soluc' , & traverse plea per duresse , Id. 249 Bar per release ; Repl' , per Duress . Ra. Ent. 250. Post Oyer scripti Obligat' & Conditi●● Defend ' placitat' per Duresse , a 〈◊〉 Bar per Duresse ; Repl' , quod Def. 〈◊〉 large & fist Obligation spontaneousment : & ne que per Duresse de Imprisonment Brownl . Lat. p. 200.
Bar per Recovery an ●●ter Coar● . DEfend ' placitet ' , quod est Actio dependen' in London ' super idem scriptum non discontinuat' . Repl' , quod nullum tale habeatur record' , Hob. Ent. 222 , 22● . 1 Sanders 36 Pit and Knight .
Per Covert Baron . DEt per Bill sur Obligation . Bor , quod querens fuit cooperta de viro tempo●e confectionis scripti . Repl' , quod fuit sola , Ra. Ent. 168. Placita gen' & sped 313. Ver. Intr. ●4 . Quod Quer' dic prosecutionis brevis Original' fuit cooperta de vi●o . Repl' , quod fuit sola , Ra. 168.
Per deins Age. AL Debt sur Obligation , Ra. Ent. 1●3 bis Cl. man . 395. Tomps . 427. Simile ad Bill , 1 Brownl . 88. Wilk . 270. Repl' , quod Def. est plene aetatis , Brownl . Lat. p. 176 Per Patriam all mutuat' deins age al Bill . Repl' , Def. fuit Indebitar' Quer in dena●iis promedicamentis , & fecit billam pro seduritate solutionis . Repl' , quod non fuit indebitat' pro medicamentis , As● . 241 , 242. Brownl . Lat. 175 , 176.
Per non est factum . AL Det sur Obligation , Ra. Ent. 160 , 180. Ash . 191. Sur Bill , Modus Intr. 187. Per non sunt facta , Placita gen' & spic ' p. 344. Non est factum Testatoris , 10 Rep. 120. Der de 800 l. Def potit audit scripti . Quo lecto Def. dicit , quod scriptum non warrant breve eo quod in scripto sunt haec 2 verba Octingentam , quae sunt nullius significationis alicujus summe certe . Judicium superinde pro Defend . cum mists , 3 Brownl. 150. Der versus Priorem sur Obligation fait per predecessor . Bar , quod nuper Prior ante confectionem scripti resignasset Prioratum , & postea abstulit Commune sigill um & fecit scriptum , & issmt non est factum , Ra. Ent. 179. Quod quer' folvit denar' debit' & scriptum & quer' deliberavit scriptum defende●ti nomine acquietancie , & postea abs●ilit script' & sic Non est factum , Idem 1●0 . Dyer 51. Det sur Obligation 30 l. Bar , quod fecit scriptum Querenti de 20 l. & quer loo●t sigillationem , &c. rasit scriptum & fecit 〈◊〉 Repl' , quod scriptum fuit rasum ante ●●illat' & deliberat' postea . Et traverse rature post deliberacon' , 1 Brownl. 90. Quod billa fuit de novo script' & interlineat' his verbis , Wilk . 277. 1 Browne 192. Mod. Intr. 190. Per deletion' & interlineat' in Indorsamento scripti , Tomps . 182. 3 Er. 135. Per razure & interlineacon' in Indorsament Mo. 80. 1 Br. 213. Modus Int. 189. Defendant pleads razure & obliteration del sum de 20 l. & inseruit summam . 30 l. Repl' , quod razure fuit fait ante sigillationem & deliberation' scripti . Rejoyne , quod fuit fait post . Brownl . Lat. ●77 , 260. Super razure de Vill in Condition , Brownl . Lat. 258. Pro deleaco ' & interlineacon' in Indorsamento scripti post deliberation' inde . Repl' , quod Quer' non obliteravit nec delevit aliquod in Indorsamento prout , &c. Brownl . Lat. 202. Def. placitat , quod obligatio sigillat , & deliberat' fuit cum spaciis & intervallis , Rol. Entr. 333 , 334. Non est fact per mislecteur del Condition , Tomps . 173. Det sur Oblig' 20 l. Bar , quod Def. est Laicus & concessit solvere script' 101. & script' sic fuit ei expositum , Ra. Ent. 180. 1 Browne 213. Modus Intr. 206. Bar , quod script' fuit el lecturn en auter sum , & ove tiel Condition , & issint non est fact , Ra. Ent. 180. b. bis . Bar , quod concessit facere script' pro solucon' 6 l. ad 2 dies cum Conditione si un B. foret inductus in Ecclesiam tunc vacar' , & scriptum est fact' cum alia Conditione , Id. 180. Ad scriptum simplex : Bar quod concessit facere scriptum cum Conditione , Id. 180 , 181. ter . Placita gen' & spec ' p. 260. Quod conceffit facere script' cum alia Conditione , Ra. Ent. 181.3 Br. 133. Brownl . Lat. 201. Attaint : Bar per release . Repl' , quod ipse Laicus concessit facere relaxationem de debito tantum , Ra. Ent. 91. Bar per release : Repl' , quod concessit facere relaxation' de Arreragiis redditus , & Hon relaxcon' de-ingressu in terras pro Conditione fract , 2 Co. 7. Bar per delivery come Escrow , south certain Conditions que nunque fuer' performat' , Tomps . p. 141. Et Replic' , Vid. 154. Quod fuit deliberat' al 3d person , ut Sched●l● sur Condition , Modus Intr. 188. Quod Def. scribi fecit scr' deliberavit ut Schedulam , ad intent' quod un J. anneretur in timore , ita quod personalit compareret , Ra. Ent. 12. Quod liberavit script' al W. Indors . eum Conditione stare arbitrio , & tunc liberand' quer' ut fact' Id. 181. Bar , quod fuit deliberat' ut Esorowe 〈◊〉 rari ut fact' suum si fregerit Arbitrament , & nul Arbitrament fuit fait & issint Non est fact' , Id. 181. b. Quod Quer' liberavit scr' al J. deliberand' querenti qui recusavit illud accipere , per quod J. reliquit scr' cum quorent● ut Schedulam non ut factum . Demur' inde , Co. Ent. p. 145. Dyer . 167. Quod Def. Laicus deliberavit scr' ut Schedulam deliberand' querenti postquam un R. invenisset Def. securitat' ad ipsum indem●n ' conservand' versus quer' de d●nati●s in scriptis , Ra. Ent. 181. Vet. Ent. 18. Simile 3 Br. 154. Brownl . Lat. 201. Simile quando Quer' faceret Defendenti scr' relaxationis , Ra. Ent. 181. Det sur 2 Obligations , quoad 1 Oblig' , quod deliberavit ut Schedulam sub Conditione , quod Quer' faceret Def. relaxcon' , quoad 2 Oblig Conditions performed special' , Id. 182. Quod fecit script' , &c. sub Conditione quod si Deodanda pertinerent Majori scr' foret custodit' ut Schedula , sed n̄ pertinerent querenti Eleemosynario Regis scr' foret deliberat' ut fact' . Et quod Deodanda pertinent Majori . Ra. Ent. 198. Simile sub Conditione quod Def. ostenderet querenti sufficient' materiam pro exoneratione relevii perit vel solveret quer ●00 l. quos obtulit , Id. 181. Simile sub Conditione quod quer' faceret Indenturam defeasanc' , 9 Co. 137. Simile de Colloquio habond' de denariis solut' ubi scr' fuit deliberat' sine Colloquio , 3 Br. 134. Brownl . Lat. p. 202. Simile sub Conditione quod quer' deliberaret Def. 100 Modios salis , Ash . 222. Bar per delivery commune Escrow al ● . deliberat' esse Querenti si Defend , nemy fait tiel chose , quel chose il fait & B. deliver le script al quorenti , & issint non est factum , Ra. Ent. p. 1●● b. Ad Obligat' , Bar protestando illam deliberavit cuidam J. ut Schedulam sub tali Conditione . Pro placito dicit , quod quer' relaxavit post confection' ejusdem ▪ Replic , quod primo deliberavit scr' relaxationis ante confectionem Obligationis ; Absque hoc , quod deliberavit post confect' ejusdem , 1 Browne 100. Quod fact praedict' fuit deliberat' sine date , & Plaintiff postea posuit le date , & issint factum , Cro. El. p. 880. Sur Oblig' port per le Major & Burgesse de Lynn Regis . Bar per non est factum , pur ceo que a misnosmer , Winch. E●t . p. 201. 10 Rep. 120. ● .
Per Defea●ance . DEbt sur Oblig' ; Bar , quod Quer' per scriptum Indentat' demisit Rectoriam Def. pro annis sub seperalibus Conditionibus . Et in fine scripti concessit , quod si Def. teneret Conventiones tuno asset vacua . Et ' Def. in sine primi anni fu●●m reddidit terminum & durante anno illo tennit Conventiones . Repl' , protestando , &c. Pro placito quod Def. non solvit redditum . Rejoynd , quod solvit redditum , Ra. Ent. 183. Det sur Recognizance ; Bar , quod provisum fuit per Ind ' defeasance , quod si Def. solveret 20 l. Querenti praedict' Recogniz' foret vacua quod Def. fecit Repl' , quod Def. non solvit , 1 Browne 187. Bar per defeasance pro solutione denar' ad separales dies ; Et quod solvit , &c. Repl' , quod non solvit denar' tali die , Issue inde , Ra. Ent. 185. Det sur Oblig' ; Bar , quod Indentura dimissionis Rectorie fact' fuit cum defeasance , ut supra ; & quod Def. performavit omnes Conventiones Repl' , quod Def. die Dominico intravit & expulit quer' . Rejoynd ' , quod alio die intravit pro redditu insolut ' & traverse quod intravit praedicto die Dominico , Ra. Ent. 184. Placitat' , quod Quer puis Obligation Covenant , quod s● Def. performarer Conventiones in Ind ' content' tunc script' Obligat' foret vacuum ; & plead Performance . Quer' quoad partem plede Estoppel pur Recov' des deniers per Ind solvend' . Rejoynd . nul tiel Record , Tumps . 174 , 175. Administrator pled Recognis . & non Assets ultra . Plaintiff Repl' & confesse le Recognisance ; mes dit que fuit un defeasance pur performance des Covenants queu●●il ad performed , Co. Ent. 147. Al Count sur Oblig' ove Condition que un W. ( sur receit de 100 l. at the hands of Madam H. for the Service of five years , al rate de 20 l. per Annum ) serviret Madam H. pur tout le terme ; mes si W. morust devant expiration de term ; or if the said Madam H. should discharge him upon three Months Warning before the term expire , then W. should pay so much of the said 100 l. as should be arrear , and not due to him for Service , according to the rate of 20 l. per Annum . Bar , that W. had well served Madam H. until such a time , and then she discharged him of her Service , and upon this W. was compelled to depart her Service against his will ; and further , that Madam H. did not give to W. a Quarters Warning upon discharge of him from her Service . Repl' , That a Citizen Warning was given to the said W. by Madam H. Rejoynder and Issue , That no Warning was given , Brownl . Lu● . 177 , 178. Ad Obligationem cum Conditione pro solutione denar' quando frater quer' pe●●eniret ad aetatem 21 ans ; Et si frater ●●iret tunc denar' forent solut' sorori quod ad eundem terminum . Bar , per Conditions performed per solucon' denar' juxta Conditionem . Repl' , quod Def. non solvit denar' juxta Condition , Id. 193. Al Count sur Obligation pur payment des deniers al several jours . Bar per payment de parcel al deux del jours de payment . Et que Plaintiff exhibited sa bill versus Defendant devant les auters payments devient due . Repl' , le Plaintiff prist Issue sur un del payments en la bar , Id. p. 22 ● 222. Al Count port per le Governour & East-India Company vers un de lour Factors sur Oblig' ove Condition que Def. feloleroit son service , & rendrist son account . Bar , quod Def. bien & veray fesoit son service , & rendrist son account accordant al Condition , Id. 227. Oblig' ove Condition , quod Def. bene & fideliter exerceret officium Ballivi circa statum Quer' ; al que Def. pledes Conditions performed generalment . Repl' , quod Def. non executus fuit officium Hallivi status quer' bene & fidelit' juxta Condition , and shews how , Id. 255. Al Debt sur Obligat' Def. pledes en bar Article de Defensance delivered with the Bond , pur payment del Annuity durant le vie del Estranger solvend' ad Festa Annunciationis & Michael . vel infra 20 days , prox' per aequalea portiones . ●t quod si le Def. & deux auters queux fo●●nt parties al Articles obirent durant le vie del dit Estranger , quod tune le survivor sur request , within one Month , deveniret oblige ove un auter Surety tan● valoris . Et Def. averre payment durant lo vie del Estranger , & quo il 〈…〉 die , & que les deux auters parties al Articles , love Def. font en vie . Repl' prorestando , que les Articles ne fuerone faits , pro placito que Def. & un del deux parties nominate tantummodo sine alre●o devo●er ' oblige . Absque hoc que le Def. & les deux auters per aliquod script' steter' teri● ' . Def. demur specially : Adjudg'd at ill Traverse , Winch Ent. 207 ad 209. Al single Bill pur payment del 30 l. tiel jour . Bar per un Defeasance fait p●r le Plaintiff tempore confectionis bille recitant le dit bill & deux auters , & Covenant p●r dit Defeasance que le di● bill ne serve suod ou le Def. mis al charges al disprover que ne fuit Partner ove Edwardo Cooper , & monstre un ●uit en Cha●●● ; mes ne monstre per le Plea que la till sur que l'Action est port est un del bills mentioned en le Defeasance . Sur que Plain●● D●murs generally , Id. p. 237.
Bar per Conditions performed . Payment . AL Debt sur Oblig' ove Cond●● 〈◊〉 de payment al 1 day , Ra. Ent. 185. 〈◊〉 gen ' e● sp●t ' 326. Conditions performed pleaded al Obligation pro payment , demur al several 〈◊〉 Modus Int. 178. Al 2 jours de payment , Ra. Ent. 184 . 18● . Simile ove divers jours de payment , Id. 170 , 185. ter . Simile , quod solvit denar' hucusque solve● , Id. 185. Al 2 Obligations ove 1 jour de paym●●t , 3 Brownl. 115. Placit . gen . & spec. 25● , 3●● . Et replic . Al 3 Obligations ubi Def. placitat 〈◊〉 post Oyer de chescun several Co●● , Ash . 219. Brownl . Lat. 191 , 192. Condic' pro solutione denar' super 〈◊〉 querentis à Roma cum certificatione . ●r protestando , quod non fuit ibid' pro pl●cito non tulit Certificat' inde . Repl' . quod fuit ibid. & tulit Certificat' , 3 〈◊〉 143. Sur Condition solvere querenti 20 l. ad finem 3 mensium postquam ipse artingeret ad aetat' 21 annorum , Id. 117. Quod quer' recepit annuatim pro 4 an● 8● pro firma terrarum , & quod Def. ad finem termini paratus fuit inde feoffare liquer' . Repl' protestando , quod non recepit aliquos denar' pro pl●●● non recepit in ultimo Anno , Ra. Ent. 18● . Sur bill Penal Plea solvit 〈◊〉 diem , 〈◊〉 255 , 286 , 287 , 289. Bond pro solutione al several jo●ir● l. Def. pledes payment les 2 primer jours , & quod les auters jours nemy sunt adhuc incurred . Plaintiff Repl' , il ne solvit primer payment , & Issue . Plaintiff declares sur 〈◊〉 ●onds ; Defend . al 1 plede● solvit ad diem , & ad 2 solvit ad diem , & que conservavit quer' indempn' ab Obligatione mentioned en la●ondition del second Obligation , Malus Intr. 203. Conditions performed su● 2 several Obligations pro solutione denar' , Placit● gen . & spec ' 258. Bar per payment al a●●es lieu , & assint ●iens due . Id. 277. Solvit ad diem , Id. 330. Conditions performed per solutionem li● several jours . Repl' & Rejunct' , 〈◊〉 34 , 435. Bar per Composition ●●ith his Creditors , 1 Browne 205. Conditions performed pro parte debial . Et pro resid' impetravit breve Originale ante diem solutionis , Placit . gen . & spec. 246. Post Oyer de special Condition fait per Def. & son fitz ; Def. plede , quod solvit querenti omnes tales denar' summas quas quer' erogavit aut obligatus fuit pro filio , &c. issint quer' non damnificat' ; Quer' 〈◊〉 , quod Def. non solvit , &c. & prote●● , quod non conservavit indempn' ●●cito quod erogavit pro filio de●●● 1000 l. quas nunquam ei solvit . Rej●● , quod solvit , & Issue , Mad. Int. p. 192 , 193 , 194.
Bar per Delivery . QUod Def. solvit & deliberavit 〈◊〉 frument' , & denarion in satisfa●●●one trumenti , &c. deliberand' , Vid. 〈…〉 Al Condition pro solutione denar' & deliberatione salis , 1 Br. ●8 . 3 Brownl . ●●6 . Bar per Conditions performed . Repl' protestando , quod non deliberavit salem , 〈◊〉 placito non solvit pecuniam , Brownl . 〈◊〉 173 , 192. Condic' deliber●re brasium . Def. dici● 〈◊〉 ipse deliberavit brasium secundum 〈◊〉 Repl' , non deliberavit . Rejoyn● ' , 〈◊〉 deliberavit & Issue , 〈◊〉 Browne ●01 , ●●● . Tomps . 182. Bar , quod Obligatio deliberat' per quer' anime cancellat post satisfaction ind● , 〈◊〉 quer' postea Vi & armis illud 〈◊〉 ●stulit , Browne 213.
Bar al Obligation' Vi●erom' . COmparuit ad diem in B. R. nul tiel Record' inde , 3 Br. 137. in Com. B. R. Mid. Int. 186. ●●m●n . 402. Placita gen & spec ' . 366. Det sur Obligation ove Condition fore verum Prisonarium B● , quod Oblig' fuit fait colore Officii contra Sta● ubi Def. fuit capt' per Liberare 〈◊〉 Statute Staple . Demur . Plowd. 61. Ad Oblig' ove Condition de payment de 11 l. Bar per Stat' ●● quod quer arrestavit un C. per warrant sur Latitat . & Def. pro. inlargiament● 〈…〉 234. Def. prie Oyer , 〈◊〉 Condition que est pur appearance , 〈◊〉 J. ● . al West . Jovi● post , &c. ad resp . E. S. de placito Transgr●● etiam bille ) & do●que pledes Act de Parliament fait 23 Ed. 6. ●uster monstrum quod les Plaintiffs 〈…〉 versus C. ret' 3 Trin. 〈…〉 & en lour custody ●●sque il pro ●●siamento & favore , &c. ovesque & P. devenue tenus & oblige al Plaintiff● en 600 l. contra formam Stat. Plaintiffs confess 〈◊〉 L●ti●a● alleadged per Def. & monstre Latit de mesme ret' . Sur que Defend . fuit atreste sur Latit' mention en son Plea● Et traverse le arrest fait sur Latit' monstre per les Plaintiff Surrejoyn & Issue , Vidia● 199. 1 Sanders p. 14. Bennet and Filkins . Def. pledes le Oblig' pris fuit contra 〈◊〉 Statuti 23 H. 6. & Plaintiff demur●●●ralment . Judgm' pro Def. eo quod ●onditio est mala & insensibilis , Brownl . ●at. 222 , 223. Comparuit ad diem pledes al Obligation del Vicount fait pur appearance del Def. sur Latit' reto●n &c. Bar per nul tiel 〈◊〉 , Id. 203.
Sur Obl' al … oun● o● Guardian de Flee● AL Oblig' & mutua●… per Guardian de Fleet versus Surety d'an Prisoner Def plead al mutuatus nil debus , & al Oblig . Stat 23. H. 6. in bar . The Plaintiff 〈◊〉 and pleads the provision 〈◊〉 the sam●●●tute for the Warden of the Fleet. The Defendant demurs generally , Win●● Ent. 192 , 193. Al Oblig' versus Surety 〈…〉 ove Condition pur performance des Covenants . The Defendant pleads 〈◊〉 , 1. To save harmless from all Escape : 2. Not to execute an Writ above the value of 20 l. absque Warrant : 3. To render an Account within a time ●●mited . To the Negative Covenant he saith , what he had not executed without Warrant of the Sheriff first obtained ; and that he had performed all the other Covenants . The Plaintiff replies and assigns a Breach per Escape , Winch. Ent. p. 193 ad. 197. Norton and Simms Case , Reported in Hob. fo. 12. Condition to perform Covenants , contained in Articles made between the High-sheriff and the Under-sheriff . The Defendant pleads General performance . Repl' , that a Fieri facias was for to levy Debt and Damages ; and that the Under-sheriff had levied part of the Debt , and retorned the Writ , but had not brought the Mony into Court , or paid this to the Plaintiff : Demur' : general al Repl' , Winch : Ent. 229 ad 233. Pais Oyer del Condition Def. pledes Stat. 22 Ed. 6. pur enlargement des Prisoners pris sur Common Processe ; & que il fuit pris sur Ca. sa . hors de Chancery , & pur son enlargment fist ceo Obligation . Demur inde , Id. 333. Bar per Stat. 23 H. 6. for letting Prisoners to bail ; & que un Capias ust issue hors Chancery sur Stat. Staple & Extern . sur ceo , & que le Oblig' fuit pris pur Sheriffs Fees per le Plaintiff al u●e del Subvicount devant le breve de Deliberate fuit executed . Repl' , The Plaintiff confesseth the bar of the Defendant , and further pleads the Statute of the Statute of 29 Eliz. for Execution Fees . Special Demurrer inde , the Bond is void . Empson's Case . Latch . p. 20. Winch. Ent. p. 334 , 335 , 336. Vid. Winch. Rep. fo. 19 & 50.
Bar per Acquittance , Release . PEr general Acquittance : Repl' , quod relaxatio Non est factum , Ra. Ent. 197. b. Placit . gen . & spec. 248 , 354. Release pleaded , Placit . gen . & spec. 346. Tomps . 155. Bar per Acquittance puis le breve , Judgment de breve ove averment quod sum contained en le Acquittance est parcel del debt . Repl' , quod fuit pur auter Debt , Plac. gen . & spec. 320 , 321. Acquittance al un des Obligors , Id. 349. Ra. Ent. 197. b. Release pleaded primò deliberat' , Plac. gen . & spec. 348 , 349. Acquittance pleaded post Darrein continuance , Id. 348 , 349. Que puis Darrein contin' , Plaintiff deliberavit al Def. Acquittance del Debt ove averment que ceo est mesme Money , Ra. Ent. 180. Brownl . Lat. 187. Release pleaded , & non pros . superinde , Cl. man . 272. Per billam acquietancie pro parte denariorum debit' super Obligat' , & Non est factum pleaded , Brownl . Lat. p. 174. Al Count en Det sur bill pur payment des deniers , & en Detinue pur delivery de Chival & furniture . Bar per release des tours Actions . Repl' , Non est factum , Id. 286. Count sur bill pro 10 l. Bar per acquietantiam mentionan' quod billa non potest inveniri , & averment quod est ead' billa . Repl' , Non est fact , Id. 201.
Pleadings al' Arbitration Bonds . NUl tiel Award , Placit . gen . & spec. 248. Nullum fecer' arbitrium , Tomp . 155. Repl' , quod fecer' arbitrium & assigne la breach ; & Rejunctio nul tiel award , Tomps . 179. Co. Ent. 159. Defend ' pleads payment solonque Arbitrament , Plac. gen . & spec. 284. Al Det sur Bond , Def. prie Oyer del Condition ( que est a performer un award d'estre fait per several Arbitrators ou al performer l'Umpirage fait per un Umpire , ) & puis plede nul Award on Umpirage fait . Repl' , quod les several Arbitrators sont nul Arbitrament ; mes l'Umpire ad fait Umpirage , & assigne breach per Defend ' pur non-payment agarded . Rejoynd ' , nul tiel Umpirage , Vidian . p. 190 , 191 , 192. Placitum al Obligation pur performance d'un award , quod Arbitrator non deliberavit Arbitrium suum ante talem diem secundum submission , Tomp . 147. Vid. Towns . Tab. Bar al Obl' , Vid. Stat. 23 H. 6. Tomps . 211.
De seperalibus rebus faciend' . PRo solutione denar' & deliberat' salis , 1 Br. 82. Quod quer' non dedit Sal nitrum ad faciend' pulverem bombardicum Quod Def. obtulit deliberare fenum quer' quolibet Anno , quod ipse recusavit accipere , & quer' non misit equum Def. pasturand' . Repl' , quod non obtulit fenum , Co. Ent. 127. Quod quer' recepit 8 s. annuatim pro firma terrarum ; Et quod Def. in fine termini fuit parat' feoffare quer' de terris & quer' non venit ibid. Repl' protestando , quod non recepit 8 s. annuatim , pro placito quod non recepit in ultimo Anno , Ra. Ent. 182.
Bar. Al Conditions de terris , & Covenants en Indenture , & Articles . Conditions performed . COndition de terris assurand' ; Bar , quod quer' non requisivit assurance ▪ Repl' , quod requisivit Def. Conveyare secundum Conditionem . Rejo . quod non requisivit , Telv . 44. Quod paratus fait facere relaxation' de terris & Levare finem , sed quer' non requisivit , Co. Ent. 65. Quod quer' recep' annuatim 8 s. pro firma terrarum ; Et Def. in fine termini venit cum facto feoffamenti super terras , & quer' seu aliquis pro eo non venit ibid. Ra. Ent. 82. Quod paratus fuit facere assurance quer' ad ejus custagia ; & quod deliberavit quer' omnia scripta . Repl' protestand' , quod non deliberavit scripta , pro placito quod requisivit Def. venire coram Justic' de 8. ad cogn' finem & obtulit ei 6 s. 8 d. pro custag' . Rejo . quod non obtulit ei 6 s. 8 d. Id. 182. Quod quer' quiete gavisus est terris feoffat' indempn' de prioribvs titulis , &c. Et quod quer' requisivit Def. & filium sigillare script' relaxationis . Quod Def. sigillavit ; sed filius existen' minimè Literatus requisivit script' de quer' , ut ostenderet viro erudito si foret juxta Condition' , quod quer' recusavit , per quod filius non sigillavit script' , Et quod quer' non requisivit ulterior' assuranc' . Demur' inde , 2 Co. 1. Quod Def. per script' feoffamenti secit quer' sufficien' statum in terris ; Et quod fuit exoneratus de incumbrancia , Vet. Entr. 235. Quod tenementa non fuer' onerata prioribus barganiis , &c. 2 Co. 1. Condition de quieta occupatione , assuranc' fiend' & scriptis deliberand' . Bar , quod quer' quiete gavisus est terris ; & quod Def. & alii fec' omnes assuranc' per quer' devisat' . Et quod Def. deliberavit omnia scripta . Repl' protest' , &c. pro placito quod un N. Attornat' devisavit relaxac' , que fuit oblat' Def. sigilland' , quod recusavit . Rejoynd . quod non recusavit , 3 Br. 156. Quod quer' non fuit damnificat' ratione priorum concession' , &c. Co. Ent. 65. Quod Def. procuravit T. & al' dimitter' quer' pro annis per scriptum ; Et quod Rex H. 8. dimisit al M. pro annis , durante quo termino quer' non potuit inquietari vel damnificari per G. Repl' , quod Rex H. 8. dimisit praedict' M. reservando arbores & Rex Ed. 6. grant le reversion & arbores al N. in fee , qui demise per ans al G. sans impeachment , qui per servientem succidit arbores . Demur' , Idem 138. Quod quer' quiete gavisus est terris dimissis pro annis quousque Def. sursum reddidit haeredi , Repl' , quod non sursum reddidit , Ra. Ent. 182. Quod dimissio fuit sub Conditione reintrationis pro redditu aretro . Et quod haeres reintravit post Fest' pro redditu insolut' . Repl' , quod intravit ante Festum , Idem 183. Quod Def. non impedivit quer' capere possession' , & quod quer' potuit gaudere quiete usque talem diem , quo die quer' dimisit illa pro annis per Indentur' . Repl' , quod quer' intravit in terras & voluit occupare , sed Def. permansit in possession' Mess . Et traverse le demise , Co. Ent. 65. Conditio solvere redditum quarterialem pro tenementis dimissis , proviso quod cessaret super explicatione : Bar , quod terre descendebant filie infra aetat' in gard le Roy , qui grant custodie al Lessor , Heir sue Livery & prist baron qui enter , &c. Et quod Def. solvit redditum usque expulcon' Repl' quod non expulit , &c. 3 Br. 153. Quod non fuere alique terre in Com' unde Def. habuit reversionem . Repl' quod B. fuit sei●itus de terris custumariis pro vita , & reversio earundem spectabat Def. Demur' inde , Co. Entr. 137. Det sur Oblig' al performance de Covenants sur Ind ' ; Bar per performance general ; Repl' , quod terre non fuer' talis annui valoris ▪ Id. 635. Similis bar ; Repl. quod non solvit redditum , Ra. Ent. 183. Similis bar ; Repl. quod die Dominico Def. intravit , &c. Rejo . quod alio die intravit pro redditu & traverse , Id. 184. Similis Conditio ; Bar , quod Def. in fine primi anni sursum reddidit terminum & duran' eodem anno tenuit omnes convenc' . Repl. quod non solvit redditum , Id. 183. Ad Action' versus virum & uxor' super Oblig' fact' per uxor' dum sola suit de performatione Conventionum in Articulis ; Bar , per Conditiones performat' , Repl' , Quer' protestando , quod Def. non performavit Conditiones , &c. Pro placito , quod B. dum sola fuit intravit super possession' querentis , & ipsum molestavit in possessione clausi in Artic' spec' . Rejo . Def. protestando , quod B. non intravit super possess . Quer' pro placito quod B. non impedivit querentem prout replicando allegavit . Rejo . per manutenentiam replicationis , & Issue inde , 2 Browne 64 , 65. Bar per Conventiones performat' : Repl' , quod post impetrationem Originalis praemissa fuer' ruinosa pro defectu reparationis , Id. 68 , 69. Bar per Conventiones performat' ; Repl' , Quer' protestando , quod Def. non performavit Conventiones aliquas in Articulis specif . Pro placito quod Def. non solvit redditum secundum Articulos , Idem 70 , 71. Bar by Convenants performed ; Repl' , quod Def. non assuravit quer' & hered' suis quandam Aulam secundum formam Indenture , Id. 77. Bar by Conditions performed ; post Oyer , Id. 94. Repl' , quod Def. non performavit , &c. Pro placito , quod permisit partem praemissorum fore in decasu , Id. 95 , 96. Bar per Conventiones performat' ; Def. post Oyer del Condition pledes Indenture & performance ; videlicet , quod solvit redditum durante termino , Co. Ent. 131. Quod reparavit domos & sepes , Id. ib. Quod posuit grana in horreo , Id. ib. Quod terre fuer' exonerat' prioribus barganiis , &c. Co. Ent. 65 , 135 , 147 , 635. Quod habuit potestatem vendendi , Id. 135 , 147 , 635. Quod fuit seisitus in feod' tempore Indenture facte , Id. 147 , 635. Quod pater in vita & filius post ejus mortem quiete gavis . fuer' terris vendit' , Idem 147. Quod non habuit aliqua scripta que deliberare potuit , Id. 135. Quod consilium querentis non devisavit , nec quer' requisivit aliquam assuranc' , Id. ibid. Quod quer' non requisivit scripta vel copias ante Festum , Id. ib. Quod non aravit terras , 3 Br. 168. Quod performavit tales Conventiones specialiter : Et quoad Conventionem de terris non arand' placitat stat' de terris tenend' in cultura . Et quoad alias Conventiones performavit specialit' . Demur inde , Co. Ent. 131. Quod qure ' non requisivit novam dimissionem : Et quoad omnes alias Conventiones performavit specialit' . Repl' & Demur' , Id. 244. Quod 2 Lessees vel Exec' non araverunt aliquas terras praeter , &c. Et quod performaver' omnes alias Conventiones . Repl' , quod Defend . existens Exec' de Survivor Lessee aravit terras praeter , &c. Issue inde , 3 Br. 167. Conditions performed generally : Repl' , quod Def. permisit Molendinum ventriticum dimissum fore discoopert' per quod corruit , 3 Br. 171. Defendant pledes performance des touts Covenants generalment . Repl' , & Issue inde , Co. Ent. 66 , 132 , 133. Performance des touts Covenants pleaded specialit' . Repl' , & Issue inde , Id. 63. Al Covenant de frumento deliberand' ; Bar , quod deliberavit : Repl' , quod non deliberavit , Vet. Ent. 234. Simile quod fuit paratus ad deliberand' & inde dedit dotitiam querenti , &c. Repl' , quod super notitia quer' accessit ad locum & requisivit de Def. frumentum quod recusavit deliberare . Rejo , quod non deliberavit , Id. ib. Non damnificatus pled' , Cl. man . 392. Replic' al Conditions performed , Id. 433. Ad Oblig' ad performand' Covenants super Indentur' assignationis Literarum Patent' ; Bar per Condition performat' , 1 Browne 4. Bar per Condition' perform' sur Obligation ad performand' Condic' super Indentur' barganie & venditionis terrarum querenti per Def. Repl' protestando , quod Def. non performavit Conditiones ; Pro placito quod quer' implacitat' & vexat' fuit in Cur' requisition pro parcell' terre . Rejo . quod quer' quiete gavisus fuit praedict' parcella terre , absque hoc quod inquietat' & vexat' fuit , &c. Surrejo ▪ quod implacitat ' & vexat' fuit , &c. Exit' superinde , 1 Browne 207. The Defendant prays Oyer of the Condition , which is for performance des Covenants in Articles : Def. pledes pro quiet ' enjoyment . Repl' entry pro Rent . Rejo . Surrejoynd . & Rebutt ' , Mod. Int. 180. 1 , 2 , 3. Bar , quod Def. solvit & custodivit omnia & singula Conventiones , &c. in Ind. specific' , Cl. man . 229. Bar per Conditions performed . Repl' , quer' protest' , quod Def. non performavit Conditiones , &c. Pro placito , quod B. dum sola fuit intravit sur possess . quer' & ipsum molestavit in quieta possess . claus. in Artic' spec' : Rejo . protestand' , quod B. non intravit , &c. Pro placito , quod B. non impedivit quer' prout replicando allegavit . Surrejo . per manutenent' : Repl' & Exitus inde , 2 Browne 64 , 65. Pur performance des Covenants en Indenture de Lease , sur que Def. recite les Covenants de son part & pledes performance d'eux . Repl' protestando , que Def. n'ad performed , &c. Pro placito assigned un breach , que devant Lease fait un P. E. baron del Def. fuit possess de mease de que , &c. & que les Governours de Now River fuer' seise de Watercourse specified en le Lease , & demise ceo al Def. & sa baron pur 21 ans , si ils ou un des eux tamdiu inhabitarent in Mesuag' illo . Et que baron & Def. fuer' inhabitants en ceo quand Lease fait fuit al querenti & que ils recede del inhabitancy del dit mease , pur que le Lease fait per Governours , fuit determine , & ils divert le Watercourse , & issint ne poit ceo enjoyer . Defendant Demur generally , Vidian 183 , 4 , 5. Oyer del Condition pur ▪ performer des Covenants en Articles concernant renting des Mills , & pledes que Lessor fuit seise pur vie de feme , & en sa droit & mor' , & la feme enter ; & que il ad performed , les Covenants jesque entry de feme . Repl' , assigne un breach pur non payment del Rent en vie de Lessor , Id. 186. Conditions performed secundum tenorem bille cum deliberatione averiorum cum incremento & conduct' , Pl' gen' & spec ' 282. Pur performance of Articles pro redditu . Pledes quod querens fuit Decoctor , & quod Def. solvit denar' Assignat' del Commissioners de Bankrupcy , Tompl . 166. Oblig' a faire Assurance ; pled' Assurance devised per Councel , Id. 189. Et. Repl' , & Demur . Condition a faire un Marriage Settlement . Repl' , breach pur nemy making un indefeasable Estate , Id. 191. Def. prie Oyer del Condition que est a Surrender un Copyhold-Estate al use del quer' & ses heirs , & que Plaintiff enjoyera , & donque pledes Conditions performed . Repl' , & monstre pluis eigne Estate d'un que enter sur luy . Rojo . quod non intravit & Issue , Vidian 173 , 174. Narr' fur Condition a faire assurance des terres , & auxy a saver harmless le quer' & les dits terres versus H. & C. & special non damnificatus pleaded , Co. Ent. 137. Condition que Lessee gauderet le terre peaceablement secundum le Lease . Bar , que Quer' surrendred la Lease , and took un novel Lease , & que ' tenuit terre peaceablement jesque l'entry per force del Surrender . Repl' , non sursum reddidi● , & la Issue , Ra. Ent. 182 , b. 183 , &c. Det versus Executor ; Condition que Lessee ga●deret terres peaceablement , &c. Bar , que Lessee ter● la terre jesque l'heire entered pu● non payment del Rent , Idem 183 , &c. Pur quiet enjoyment ▪ Bar , quod Def. & assignat' sui expulsi fuer' per B. Comit' Essex ' . Replic' , quod Def. & assignat' sui pacifice gavi● fuer' , Rejoynd ' ut prius , quod B. Comes Essex intravit super possession' suam , 2 Browne 81. Quod Quer' qui●te habuit & gavisus fuit boscum & maremiu● , absque interruptione Defendentis secundum formam , &c. 2 Br. 102. Conditions performed pleaded , que fuit quod Def. non clamaret dotem in terris talliat' . Repl' , & monstre le claime . Rejo . quod non clamavit modo & forma , Tompson 198. Def. Covenants , quod quer' quiete gauderet un Lease . Repl' , & monstre le breach per primer Estate fait per Def. Rejo . quod il fuit infra aetatem tempore confectionis del primer Estate . Surrejo . fuit plene aetatis , Tomps . fo. 100. Defend . pleads performance particularment . Repl' , & assigne un breach en un des p●rticulars , Co. Ent. 27. b. Pur performance de Covenants en un Indenture del demise d'un Wine License : Bar , puis Oyer Def. monstre l'Indenture & grant de Roy faits al Plaintiff , & demise del Roy , per que le grant & l'Indenture devient void ; and that until such a time they had performed the Covenants according to the Indenture . Demur' general al bar , Brownl . Lat. 211. usque 216. Bar : Def. prays Oyer del Condition , & puis plede que les deniers fueront d'estre payes apres retorn del Neife directment a Bantam al Angleterre , & que la Neife fuit perde en le Voyage , Brownl . Lat. 246. Repl' , quod Def. non reliquit aut sursum reddidit tenementa querenti juxta Conventionem , sed custodivit possession' ultra tale tempus , Id. 257. Condition to surrender a Copyhold Estate al use del Plaintiff : Bar , que le Defendant al Court tenus tiel jour ad surrendred secundum effect' Conditionis , Winch. Ent. p. 241.
Conditions performed . DEt per baron & feme sur Oblig' fait al feme dum sola fuit versus baron & feme , Executrix del Obligor . Def. prie Oyer que est pur performance des Covenants en un demise pur un Ann absolute , & post fin' Anni tunc ( si partes agrearent ) pro tribus Annis extunc prox' sesquen' reddend' annuatim durante termino 40 l. ad 4 terminos ; & Def. dic' , quod Testator ust enter & tenuit pur un ann & per spatium Anni il ust performe tout son part ; and Breach assigned pur non payment del 10 l. pro uno quarter' ejusdem Anni : And the Defendant Demurs , eo quod nullus redditus fuit debit' ad idem Festum ( existen' primo termino ) pretendant que reservation del Rent ne extent al primer Ann ; mes Court tient que ceux parolx ( annuatim durante termino ) extend ad primum annum , Robinson's Entries , p. 177 , 178. Condition pro pacifica & quieta occupatione unius domus , & bar per Condition performed ; & quod quer' vel assign' sui non deder' notitiam quod domus indigebat reparationibus nec fuit ullo modo damnificat' . Repl' , quod quer' dedit notitiam . Rejo . & Issue sur le Notice , Rob. Entr. 179 , 180. Bar per Conditions performed ; & Demur inde , Id. 189. Ad Obligation' cum Conditione pro performat' agreamenti in billa special' . De● prie Oyer del Condition , que est quod Def. super rationabili Praemunitione observaret agreamenta in billa ; & faceret ulteriorem assuranc' & sursum reddelet totum inceresse qualit' rationabil' devisatur per Concilium . Bar , quod Def. non fuit rationabilit' Praemunit' ad reddend' . Evidenc' al Plaintiff , & quod Concilium non devisavit , Rob. 197 , 198. Placitum ad Narr' sur script' Obligat' ad performand' Articulos agreeamenti ubi Articuli specialit' placitantur . Repl' , quod Def. non performavit Articulos agreeamenti , Id. 227 , 228. Condition pur performance of Covenants brought by the High-Sheriff against the Security of his Under-Sheriff . The Defendant after Oyer of the Condition pleaded , there is not any Covenant on the part of the Under-Sheriff . The Plaintiff prays Oyer of the Indenture , made between him and his Under-Sheriff , and Demurs to the Bar , Winch. Entr. 319 , &c.
Al auter Special Conditions . BAr per Conditions performed , al Obligation conditionat' quod Def. non maritaret durant vie del Obligee sans assent del Obligee . Nepl' , quod Def. maritavit en vie del Obligee ; & Demur Inde , Tomps . 194. Def. prie Oyer del Condition que fuit quod inveniret le Plaintiffs Daughter ( que il ad married ) & fes Fits boyer & manger , &c. & superinde pledes Conditions performed , Mod. Int. p. 200. Pur performing Considerations specified in a Condition , Plac. gen . & spe . 341. Al Obligation pro fideli executione officii Ballivi al un Vicount , Tomps . 195. Breach pur non payment d'un Post-fine collected per luy , Id. 197 , 209. Bar per Condition performed sur Recognis ▪ 1 Browne 191. Condition a releaser un Obligation ; Bar , quod nulla requisitio facta fuit ad relaxand' . Repl' per scriptum relaxationis devisat' & requisit' . Demur' inde , Dyer 218. Bar quod Judex Curie Prerogat' non appunctuavit Def. facere aliquam relaxationem . Demur' ●nde , Co. Ent. 130. Condition de Sententia in Curia Ecclesiastica de Testamento . Bar , quod appellavit à Sententia , Hen. 317. Condition , that the Defendant shall pay such a Sum to such a person as the Testator shall name by his Will upon such a day , after the death of the Testator , Bar. That the Testator did not appoint 〈◊〉 person by his Will , to whom the Mony should be ●●dbo Repl' , quod , Defend 〈◊〉 solvit secundum , form●m Cond● Demur' general' , Winch. Ent. 288 , Pease and S●●e man's Case . Sur Oblig' oy● Condition a payer tou●● les Charges d'u● Nonsuit pereater le Plaintiff & le Defendant : Def. plede que sont ●ul dependant tempore confectionis scrip oblig' Id. 354. Condition a performer Covenants 〈…〉 Lease purians , part en le Negative & part en le Affirmative Bar al Negative Covenant , Def. dit quo , il ad fait nu● &c. & al Affirmative Covenants he pleads performance generally Repl' protestand● que Def. n'ust performe ascun Covenants , &c. pur plea que il n'ad paid 1 〈…〉 de Rent , &c. Rejo que le Plaintiff ●4 May , &c. deyant Rent due ad entered in part , & ejected le Defend . Surrejo . Plaintiff denies l'Entry & l'Ejectment , Id. 82 , 89. Judgment pro Quer' , Baker and Spaine Vid. le Case supra . Q. If the Plaintiff should not have laid in his Replication , that he demanded his Rent . Count for Obligation ove special Condition , ( viz. ) That if a Crop of Corn of right belongs to the Plaintiff , that then if the Defendant pay to him 20 l. within a Month after demand , then the Obligation to be void . Bar protest' , That the 20 l. was never demanded ; for Plea , that the Crop did not belong to the Plaintiff . Repl' , That the Plaintiff was seised in Fee of the Farm on which the Crop was growing , and so the Crop of Right belongeth to him . Rejoynd . N. S. was seised in Fee , and Leaseth to R. S. for 21 years , and Covenants that R. S. shall have the Crop growing at the end of the term . R. S. makes J. S. Executor ; N. S. grants the Reversion to the Plaintiff , &c. Winch. Entr. p. 300. Count sur Obligation for making a new Lease : Bar , That the Plaintiff had not tendered a Lease to the Defendant , and Demurs ; the Demurrer was good , because the Defendant was bound to do the first Act. Q. Id. 30● . Count sur Obligation , to acknowledge a Fine before such a day : Bar , That the Plaintiff had not prosecuted any Writ of Covenant , or other Writ , for levying the Fine . Repl' , That he who was bound to levy the Fine ( before the time in the Covenant to levy this ) had made a Feoffment in Fee of the Lands which were to be comprised in the said Fine to a Stranger . Special Demur' inde , because the Replication doth not answer the Plea in Bar , Winch. Ent. 331 , 332. Condition to pay such a Sum for the Tithes of W. if upon Trial between the Earl of L. and the Bishop of C. for the said Tithes , it appears that the Earl had no right to them : But if upon Trial it appeared the said Bishop had no right to them , then the Condition to be void . Bar , that there was never any such Trial. Demur' inde , Id. p 337.
Bar per Concord . COncord pleaded in Bar devant join de payment contenus en le Condition del' Oblig' , scilicet , quod Def. solverer quer' 30 s. in satisfactione 10 l. in Conditione specificat' , ac etiam de omnibus aliis debitis Transgr' , &c. que Quer' clamaret versus ipsum . Super quo Def. postea ( & ante tempus solutionis in Conditione ) solvit & satisfecit quer' praedict' 30 s. tam in satisfact' praedict' 10 l. in Conditione quam omnium aliorum debitorum , &c. secundum formam & effectum agreamentii illius . Et praedict' quer' adtunc & ibidem accepit & recepit praedict' 30 s. de De● in plena satisfactione inde . Repl' protest' nul tiel Concord ; Pro placito quod Def. non solvit quer' praedict' 30 s. prour , &c. Et exitus superinde , Brownl . Lat. 190. Al bill Penal pro 80 l. Bar , quod Def. computasset cum quer' & invent fuit in arrears in 32 l. praeterquam 80 l. Et quod agreat' fuit quod Def. solveret le tout ( viz. ) 112 l. super talem diem . Et intraret Recogn' pro securitate , &c. Et quod solvit ad diem secundum agreamentum . Plaintiff Demur' generalment . Per Cur' male plea , Winch. Ent. 170.
Bar by Statutes . Bar per Stat. d'Usury . BAr al Obligation ove Condition ad solvend' 33 l. si E. foret superstes tali die , & si defunct' tunc 26 l. tantum de 30 l. mutuat' , Co. Ent. p. 168. Quod scriptum factum fuit pro securitate solutionis 30 l. pro doleo Olei empt' quod Def. potuit emere pro 25 l. in pecuniis numeratis , & verum pretium inde fuit 25 l. Rejo . quod verum pretium fuit 30 l. & Traverse quod verum pretlum fuit 25 l. Ra. Ent. 689. Per Stat. 37 H. 8. revived per 13 Eliz. de Usura reformanda ; ubi Quer' recepit 50 l. 9 s. 4 d. pro differendo diem solutionis 200 l. 16 s. 8 d. pro quinque mensibus . Repl' quod Obligatio facta fuit super honam Consideration' & Traverse le Usury , 1 Browne 201 , 202. 2 Browne 66 , 67. Similis bar' ; Repl' quod Obligatio facta fuit pro justo debito , & Traverse le Usury : Def. Demur' , Judic' pro Quer , 1 Browne 202 Brownl . Lat. 235 , 236. Similis bar' ; Repl' quod quer' gratis accommodavit , & Traverse le Usury , 1 Browne 203. Similis bar' ; Repl' quod quer' corrupte reservavit sibi 20 s. sur accommodat' de 7 l. Repl' quod accommodavit y l. sine consideratione , Idib . Bar per Stat' 13 Eliz. contra Usuram , 2 Br. 85. 5 Rep. Clayton's Case . Bar per Stat. 21 Jac. Tomps . 220. Bar per Stat' de Usury , Vidian . 205. Repl' pro justo debito , & traverse le corrupt agreement . Bar per Stat' de Usury 12 Car. 2. Tomps . 146 , 156 , 159. Repl' , quod aliter agreat' fuit , & quer' existens illiterat' cepit scriptum praedict' , ibid. Cl. Man . 436. Bar per Stat' de Usury , ubi quer' accommodavit 20 l. pro uno anno integro cum Condic' ad solvend' 24 l. vel tot' centena de Hemp , Rob. Ent. 216 , 217 , 218 , 220 , 227. Vid. Winch. Ent. 233 , 297. Per Stat' 5 E. 6. versus vendant Offices ( viz. ) the Office of Undersheriff , Brownl . Lat. 216 , 217 , 218. The Office of Escheator of the County of Wilts , Winch. p. 180. Bar per Stat' 18 Eli● . de dimissionibus per personas Ecclesiasticas , Tomps . 213 , 219. Bar per Stat' 23 H. 6. pur extorting Fees pluis que sont due . Repl' quod Oblig' fact' fuit bona fide & traverse le Extortion . Rejo . per Maintenance del Plea , Rob. Ent. 209 , 210. Bar al Obligation per Stat' 13 Eliz. de Non-residence , Tomps . 205 , 217. Defendant pleads al bill Obligatory , that it was made against the Law of the Land , in that it tyed him against the lawful use of his Trade , Mod. Int. 201. & Replie ' . Obligation to perform Covenant in an Indenture of Apprenticeship ; B●r per Stat' 5 Eliz. that no Merchant shall take Apprentice , unless his Father had Lands of 40 s. per annum value , and that all Indentures of Covenants , for taking Apprentices otherwise , shall be vo●l , Liat . Brownl. 224 225. Rod Ent. 193.
Bar per Tender . QUod ad diem in Conditione Def. pararus fuit , & obtulit solvere querenti denarios in Conditione . Et quod Quer' seu aliquis pro eo non venit ibidem ad recipiend' . Repl' quod Quer' paratus fuit ad recipiend' , & Def. seu aliquis pro eo non fuit paratus ad solvend' , 3 Brownl. 176. Placit' gen' & spec ' 231. Similis bar' , similis Replic' ; ove Traverse quod Def. fuit paratus ad solvend' , Ash 220. Condic' ad deliberand' Plumbum ad 2 dies ; Bar , quod obtulit ad deliberand' , & nullus venit ad recipiend' . Repl' quod Def. non obtulit ad unum diem , Id. 244. Det sur Oblig' de 20 Marcis : Quoad , 26 s. 8 d. Def. paratus est solvere , ad 18 Marcas residue , Bar per 2 Acquittances ; unde Exitus . Et nil dicit ulterius de praedict' 26 s. 8 d. Re. Ent. 179. Vet. Ent. 202. Ad partem debiti per Obligation , Bar per foreign Attachment en London , ad residue quod semper fuit paratus , & profert in Curia . Repl' quod talis die quer' requisivit denarios quos Def. recusavit solvere . Rejo . quod tempore requisitionis Def. obtulit solvere , & quer' ill' recusavit . Surrejo . quod non obtulit , Co. Ent. 141. Placit' al Obligation & Condition' pro solutione Annualis redditus , quod Def. fuit paratus ad solvend' ad separales dies pro solutione inde , Repl' quod non fuit paratus ad unum diem eorundem . Tompson 181. Rejo . quod non fuit requisitus ad solvend' . Surrejo . quod fuit requisitus .
Bar per acceptance des auters choses . DEt versus Executor sur Oblig' ; Bar , quod ante diem in Conditione Def. solvit querenti 30 s. in satisfactione tam debiti petit' quam omnium aliarum demand' a Testatore per agreement , &c. Repl' quod quod non solvit in satisfactione , 1 Brownl. 111. Quod ante diem in Conditione Def. deliberavit & dedit Testatori 10 carectatas maremii in satisfactione denar' in Conditione . Repl' protestando , quod non cogn' aliqua ; pro placito quod Testator non recepit 10 carect' maremii in satisfactione debiti , 3 Brownl. 142. Det sur Bill ; Bar , quod ad diem solutionis Def. deliberavit querenti sex Vaccas in satisfactione debiti quas acceptavit . Repl' non deliberavit , 1 Brownl . 76. Brownl . Lat. 169. Al Count sur Obligation pur 50 l. Bar , que Def. & sa surety puis done un bill Penal pur les deniers en le Obligation specifie en le Count & pur les damages per voy de satisfaction . Demur' general . Brownl . Lat. 230 , 237. Condition to pay to H. for the use of B. 3 l. &c. in full satisfaction of all the Housholdstuff devised by his Father . Bar , that B. became Apprentice to P. ( one of the Obligors ) pur 7 ans , who delivered his Indenture to him , and discharged him for the residue of the Term of 7 ans , in full satisfaction of the said 36l . Demur' inde , Winch. Ent. 186 , 187.
Bar per Heirs . DEt versus filium & haeredem : Bar per riens per descent , Tomps . p. 208. Ra. Ent. 172. ter. Ash 210. Versus fratrem & haered' : Bar per riens per descent , 2 Browne 72. Simile per consanguineum & haered' , 3 Brownl. 121. Simile per fratrem & haered' , filii & haeredis , Ash 201. Riens per descent praeter tertiam partem Manerii : Quer' prist Judgment pur ceo , & enquiry de value agarded , Tomps . 174 Repl' , Assets per descent , Id. 181. Riens per descent praeter tales terras . Repl' , quod Def. habet terras ultra , Co. Ent. 126. Hern 312. Simile Placitum ; Judic' superinde , & extent agard , Ra. Ent. 172. Plowd. 439. Riens per descent praeter reversionem & remanere terrarum . Judic' inde , Ash 230. Tomps . 159.3 Hern p. 307.8 . Riens per descent per baron & feme haered' praeter tertiam partem Mesuag' , Tompson 148. Simile praeter reversionem post terminum annorum & reddit' reservat' super dimission' . Judgment inde , 3 Brownl. 176. Simile super dimission sine redditu reservat , Hern 307. Det versus 2 barons & femes haered' . Bar per riens per descent praeter terras in Comit' G. & medietat' in Com' C. & Judic' inde , Ash . 231. Det versus un A. & E. uxor' ejus , C. & F. uxor' ejus sorores & J. filium alterius sororis Cohaered ' A. & E. plead riens per descent praeter tertiam partem tenementorum . Simile per C. & F. J. pledes que pero est Tonant per le Courtesie , reversion a luy . Judic' inde , Id. 232. Cogn' Action sur Obligation infra aetat' per Guardian' , sed dicit quod non habet assets per descent a patre en Fee-simple praeterquam tenementa in occupatione cujusdam E. annui valoris 100s . & reversion' medietat' tenementorum in occupatione cujusdam J. annui valoris 10 l. post mortem A. B. avie sue . Averment quod A. B. est in plena vita entry del Judgment . Repl' quod habet assets ultra . Exitus inde , 1 Browne 196. Rions per descent praeter Black-acre , & le reversion de White-acre expectant sur lease pur ans . Et Plaintiff prist son Judgment de les tenements & reversion . Vidian . p. 177 , 178. Judicium versus haered' super veredicto quod habet terras per descensum , Jud. 37. Simile sur riens per descent praeter , &c. Idem 158. Jud ' versus haered' de debito levand' de terris unde pater obiit seisitus , Dyer 81. Ra. Entr. 172. Plowd. 439. Simile de reversione cum acciderit , Dyer 373. F. N. 37.
Bar per Foreign Attachment . BAr per Foreign Attachment in Curia Majoris Lond. Repl' quod consuetudo de Attachment est aliter quam Defend ' allegavit ; & quod ipse non fuit indebitatus . Issue sur Custom , & Certiorari inde agard , Ra. Ent. 157. Vet. Ent. 113. Ra. Entr. 156. Bar per Attachment in Cur' Vic' London sans Custom pleaded , Ra. Ent. 158. Attachm' in Cur' Vic' Lond ' , ad partem debiti , Demur' inde . Ad aliam partem tender & uncore prist . Issue inde , Co. Ent. 139 , 142. Bar per Foreign Attachment en le Mayors Court de Londres sur Attachment fait des deniers en ses mains demesnes , Vidian 168. Custom del London d'un Foreign Attachment pleaded in bar , Tomps . 160. Repl' non habetur talis consuetudo & Trial , Id. p. 177. Al Count en Det per bill versus Attornat' de Banco sur bill Oblig' de 10 l. Bar per Attachment des deniers en ses mains per Custom de City de London en la Court d'un des Vicounts icy . Demur' general al bar , Brownl . Lat. 231 , 232 , 233 , 234. Bar per Attachment en le Mayors Court del City de Exon. Id. 237.
Bar per Executors seu Administrators . REteyner ad satisfaciend' Det super script' Obligatorium . Repl' quod Def. fuit Executor de son tort demesne , & issint ne poyent reteyner , Tomps . 156. Modus Int. 198 , 199. Conditions performed in vita Testatoris , Placit . gen' & spec ' 228. Non est factum Testatoris , Id. 334. Nunque Executor , Id. 355. Conditions performed sur bond ad performand' Conventiones , 1 Browne 168. Plene Administravit ante Notitiam , Id. 176. Repl' habuit Assets die Noticie , Id. 177. Release pleaded . Repl' Non est factum Testatoris , Id. 172. Seperalla judicia obtenta versus Administrat' pro debitis Intestati placitant' in barram , Id. 210. Repl' dontin' per fraudem , Tompson 157 , 158. Special non est factum per Executors , eo quod Testator existens Laicus illiteratus fecit querenti Literam Attornat' concernen' possession' , &c. & non Obligationem in Curia prolat' , 1 Browne 212. Per Executors : Nunquam Administravit ●ed circa Funeralia per un , & n'unque Executor per alterum . Repl' quod unus Administravit solvendo debita , & alter ut Executor , 1 Browne 215. Quod fuit Executor simul cum alio qui Administravit , & non nominat' in billa querentis , Temps . 140. Quod Administrator durante minoritate relaxavit Quer' . Repl' quod Administratio fuit commissa ad solum usum , & beneficium Quer' qui fuit le Infant , Idem 141. Stat' Staple & seperalia Judicia plead ' per Executor , & plene Administr' ultra , Idem 164 , 166. Reteyner pled' per Administrator' . Repl' quod habuit sufficien' ad satisfaci●nd' ultra , Id. 166 , 183 , 4. Executor pledes , recogn' al Camerario London minime satisfact' , Id. 173. Executor pledes , quod Original fuit prose●u● tali die , & quod ipse non habuit notitiam usque talem diem , quo die plene Administravit . Repl' quod habuit assets die Notice , Id. 184. Repl' al plene Administravit , quod Def. die Impetrationis primi brevis Orig' habuit diversa bona , Id. 185. Performance des Covenants pleaded per baron , que prist al feme Executrix del Lessee , Id. 185. Quod Testator fuit Utlagat' , & quod plene Administ● ' omnia bona puis l'Utlary , Id. 188. Bar , quod Testator in vita sua devenit Obligat' eidem Def , & aliis in diversis denar' ●ummis pro seperalibus Obligat' quodque ipse non habet bona seu catalla ultra , &c. ad satisfaciend' sibi & 2 Judic' obtent' versus eum , 2 Browne 7● . Repl' , Assets ultra , & Oblig' fuit per fraud ' , Id. 77. Per Administrator , quod Judic' obtent' fuit versus , defunct' in vita sua & 4 seperal' Judic versus Def. ut Administrator post ejus mortem , & quod non habet Assets ultra , Id. 87. Per Administrator , qui placitavit Judic' versus Curia B. R. quod Judic' est minime reversat' : Quod Def. est una eademque persona , quodque idem Judic fuit obtent' pro vero & justo debito , & sic idem Def. dicit , quod ipse plene Administravit omnia bona & catalla defuncti praeter , &c. Id. 97. Quod A. defunct' habuit bona Notab' in diversis Dioecesibus , quod Administratio commissa fuit ● cuidam R. qui relaxavit Def. Id. 98 , 99. Administrator pled' Judicium en C.B. obtent' versus intestate en sa vie . Repl' quod Judgment est satisfied & continued per Fraud ' . Rejoynd ' que Judgment n'est satisfied , & Traverse se Fraud : Issue sur Traverse , Vidian . 171 , 181 , 182 , 183. Simile Bar : Replic' Assets ultra , Idem 175 , 176. Special Reteyner pleaded lou Administratio fuit grant al feme del Def. & Def. est … ed com Executor , Vidian 188. Per Administratrix , Def ▪ pledes plene Admin . Repl. quod Plaintiff ad prosecuted un Original breve versus Def. & son baron retorn' en C. B. & sur ceo ad proceed al Issue ; mes que breve fuit abate per mort del baron & que récenter exhibuit billam , & quod Defend . tempore brevis Orig' ad Assets . Rejo . & Issue que Plaintiff non recenter exhibuit billam , Id. 204 , 205. Bar per release fait per Administrator' durant minore aetate . Repl' quod relaxavit in jure suo proprio , & Traverse quod relaxavit ut Administrator . Def. moratur ; Quer' rejungit . Special Verdict & Judgment pro Quer' , 1 Browne 167. Bar al Oblig' port per Executor , quod Testator implacitâsset quendam T. qui tenebatur simul cum Def. in eodem scripto & quod ipse idem T. satisfecit Testatori superinde , Id. 213. Bar quod Testator in vita sua dedit & deliberavit quer' sex Vaccas in plena solutione & satisfactione denar' , &c. Brownl . L●t. 169. Narr' per un Executor super Oblig' versus 2 Executors . Bar , quod unus Def. obiit post Darrein continuance & alter placitat' plene Administravit . Repl' , quod Defendents on t Assets en lour mains temps del breve purchased , & Issue sur ceo . Idem p. 175. Al Count , versus Executor sur Oblig' simul cum alio Executore qui Utlagatus existit . Bar' , quod Testator fecit istum Executorem qui Utlagatur . Quodque Def. u●serviens Executori vendidit diversa bona pro illo , & computavit cum illo pro iisdem ; absque hoc quod Administravit aliquo alio modo , prout , &c. Brownlow Lat. 196. Ad Narr' versus Administratricem super Oblig' cum Conditione ad indempnem conservand' . Quer' ( esteant un Surety pur l'Intestate . ) Bar , quod Intestatus in vita sua solvit denar' tali die juxta Condition' & sic indempnem conservavit Quer' ; Et Replicatio , Id. 194. Condition performed . Condition fuit que Defendant permitteret le Testator , ses Executors , &c. a depasture 200 Oves . Repl' que Defend ▪ non permitterer . Rejoynd . & Issue sur le permission , Rob. Ent. 182. Breach assigned , quod nec Testator nec Executores solver reddit' deb' ad tale tempus Rejoynd . quod Testator in vita sua solvit , Id. 200.
Per Administrators . DEfend ' pled' Recogn' en Chancery al Estranger , & Scire fac' sued versus ●Intestate & retorn' que fuit mort , & anter Scire fac' sued versus Def. come Administrator qui appiere & plede pleinment administer , & Issue , & Assets trove al 44 l. & Judgment sur ceo . Repl' , quod le Recogn' fuit satisfied per Defend ' ; mes satisfaction ne f ; uit conus devant le Plaintiff ad purchase son Original al intent a defrauder . Et Demur' inde , Winch. Entr. p. 245. Bar per Administrator , un E. port Action versus luy sur Obligation super que il confesse Judgment , Id. 247. Bar per several Judgments en le Sheriffs-Court London , & un Det reteyned , & Det assigned al Roy. Male Plea pur duplicity , Id. 257 , 258.
De Servientibus & Apprenticiis . QUer' retinuit servien' pro 5 annis , & solvit ei 20 l. annuatim pro salario in manibus , & al Obligation sur Condition de repayer sur mort ou departure sans notice d'un quarter d'Ann devant discharge : Bar quod Quer' posuit servien' è servitio sine notitia quarterii Anni . Repl' ●d tali die dedit notitiam , &c. 1 Brownl . Quod quor' tali die posuit Apprenticium è servitio , usque quem diem performavit omnes conditiones . Repl' protestando , &c. pro placito quod Apprenticius recessit è servitio , & Traverse quod Quer' posuit eum è servitio , Hern 272. Obligation ove Condition de fideli servitio fiend' per Apprenticium Lond ' : Bar per Custom , quod Indenture Apprenticiat' non Irrotulat' sunt vacue . Repl' per nul tiel Custom . Breve inde agard , Co. Ent. 144. Bar per release fait al Apprentice , 3 L●on . 45. Bar , quod performavit les Covenants . Breach assigned pur Moneys purloyned , Tompson 183. Al Oblig' cum Conditione pro performatione Conditionis in Indent' Apprentis ' ▪ Def. placitat clausulam in Stat. de Anno 5 Eliz. Rob. Ent. 193.
De Apprenticiis . SUr Obligation a performer Covenants d'un Indenture de Apprenticeship . Bar que ne fuit prove quod l'Apprentice consumpsisset secundum formam Conditionis . Repl' que l' Apprentice serve luy à tali die usque talem diem ; & infra idem tempus recieve bona Magistri & infra terminum praedict' eux consume , & que l'Apprentic per scriptum suum cognovit se consumplisse , &c. & que Plaintiff done notice de ceo al Def. & que il ne fait satisfaction deins 3 Moys sucundum formam eandem . Def. Demur generalment , Winch , Ent. 168. the Case of Gold and Death . Oblig' to perform Covenants in an Indenture of Apprenticeship : Bar , that the Apprentice died , and a just Account was made by him before his Death , and that he never departed from his Service . Repl' , that the Apprentice made his Account , and omitted 60 l. by him received of one R. of the Plaintiffs Monies . Demur' general al bar .
Recovery Judgment on Suits en auter Court pleaded in Bar. DEfend ' placitat Suit en Chancery pro eodem debito , Placita gen . & special. 350. Un former Recovery pleaded sur mesme l'Obligation , Hern. 298. 1 Sanders 86. Pit and Knight . Utlagary pleaded in bar , Tomps . p. 206. Placit . gen . & spec. 344. Co. Entr. 159. Quod quer' est recusant Convict , Tompson 185. Letters de License del Plaintiff & auters Creditors pleaded , & monstre coment sue en le Marshals Court , Tomps . 169. Plea quod il ne fecit Obligation al L. & prie que le Plaintiff may be examined , Ra. Ent. 179. b. Def. placitat quod Estranger sigillavit & deliberavit billam quer' , in exonerationem scripti : Et quod quer' acceptavit billam in satisfactione inde , Rob. Ent. pag. 234 , 235.
Several Bars . NOn est factum al un Obligation , Conditions performed al auter , Ra. Entr. 182. Conditions performed al Obligation . Non est factum ad bill , per legem & diem al Account , Id. 170. Asht . 191. Ad Narration' sur Oblig' versus Administratorem Administratricis . Quoad partem Def. placitat billam acquietancie , & quoad residue plene Administravit . Repl' , puis oyer d'Acquittance quer' dicit quod non est factum suum ▪ Et al residue dic' quod Def. ad Assets . Brownl . Lat. 173 , 174. Ad Narr' pro solutione denar' ad 2 dies super 2 Obligations . Quoad 1 Oblig' Def. placitat conditions performed : Quoad 2 dicit quod ipse deliberavit granum in satisfactione , Rob. Ent. 196. & Rejo .
Bar & Judgment . AD partem debiti per Obligation bar per Acquittance . Non informatus al residue , Ra. Ent. 180.
Ad Obligation non informatus ; ad denar' mutuat' nil debet per Patriam , 3 Brownl. 136. Det sur several Obligations ; un pur performance des Covenants & les deux auters pur payment del Mony . Bar al 1. per performance ; and to the two others he pleads Conditions performed , Winch. Ent. p. 281.
Judicia . MOdus Intr. 211 , 213 , 222. Sur Confession , Sanders p. 191. Mortlack and Charlton . Sur non est factum pleaded ; Verdict , Entry , Judgment , Modus Int. 209. Judic' pro quer' sur Demur' quoad part per 1 Obligation . Def. relicto placito de non est factum , ad aliam Obligationem cognovit actionem , Jud. 162. Non informatus , Ra. Ent. 173. Co. Litt. 156. Modus Intr. 207. Nil dicit , Wilk . 277. 1 Brownl. 90 , 98. Ash , 291. Sur default Def. post li. lo. Ra. Ent. 173. Simile post Release pleaded , Id. ibid. Cognovit Action' , Id. ibid. bis . Cognovit Action' al minas sur Obligation , Ra. Ent. 161. Jud. 21. Ash . 251. Ra. Entr. 171. Cogn' Action' sur Conditions performed , Jud. 212. Mod. Intr. 211. Satisfaction confess'd per Attorney per Special Warrants , Ra. Ent. 163. Judgment en Londres pur parcel de Debt sur enquiry de debito solonque le Custome pleaded en bar a ceo , Vidian . 166.
A TABLE OF REFERENCES TO The several sorts of Special Conditions , &c. in all the Books of Presidents , under their proper Heads .
Bills . A Bill with Penalty , and for Mony to be paid at several days , Fidel. 15.
Obligation . SIngle : Compleat Clerk 312. Double Id. ibid. Treble : Id. ibid.
Sheriffs Bond. PUr appearance en C. B. Fidel. 17. — & in B. R. A Condition of a Bond to the High-sheriff , upon the taking of a Replevin , Id. ibid. Compl. Clerk 315. Condition of a Bond taken by the Sheriff upon a Supersedeas of Outlawry , Compl. Clerk ib. Bond taken by the Sheriff of London for ones Appearance , Cl. Vade me●um 540.
Conditions for the payment of Mony . AT several days , Fidel. 17. Compl. Cl. 313. Clerks Guide 1st Part 33. For the payment of all such Expences the party shall be put to , Fidel. 9. Condition where two are bound to two , Comp. Cl. 328. Where three or more are bound , Idem 327. A Condition to pay Mony within 14 days after , if the parties bound in an Obligation pay it not at the day , Cl. Guide 1 Part 58. A Condition to pay a sum of Mony to Children at their several Ages , according to the Will by which it was given , the Bond being made to the Executors , Idem 6● 1st part . A Condition to pay a sum of Mony to a Child when he comes to age , and in the mean time to find it and bring it up , Cl. guide 1st Part. 62. A Condition to pay a sum of Mony Quarterly , Id. 161. 1st Part. A Condition to pay a sum of Mony at a day , and then to put in another Surety for payment of another sum at a day then following , Id. 163. A Condition for payment of Mony , if a man be Non suited , Id. 165. A Condition to pay Mony at the day of Marriage , or day of death , Id. 85. Or at a time after , Cl. Vade m. 632. A Condition for payment of Mony yearly , with a Clause to find new Sureties upon the death of any of the former , Cl. Guide 189. 1st Part. A Condition to pay Mony during life , Idem 191. A Condition to pay Mony at the expiration of an Apprenticeship , Id. 199. A Condition to pay Mony weekly , Id. 2 Part 74. A Condition to pay a sum , and three years payment given , Id ibid. A Condition to pay a sum of Mony at ones Return beyond Sea , Id. 78. A Condition to pay Use for Orphanage Mony belonging to Orphans , Id. 94 , 130. A Condition for Mony given by a Will to be lent gratis , Id. 102. A Condition to pay Mony according to a Proviso in a Bill of Sale , Id. 1 Part 106. A Condition to pay a yearly Sum for a Wives Joynture , during her life , Id. 2 Part 107. A Condition where the Obligee hath a sum of Mony owing by one , which is agreed to be paid to a Creditor of the Obligors , the Obligor is bound to repay within ten days after notice of the Receipt , Idem 110. A Condition where a Bond is assigned , that if the Obligors in the assigned Bond do not pay , then the Obligor in this Bond to pay , Id. 111. A Condition where Purchase-Mony is to be paid at two payments ; if default be made in the first , the whole with allowance to be paid at the second , Id. 114. A Condition that the Obligor shall pay within three Months , if default be made by another , Id. 115. A Condition , that if the Obligee do not receive the Sum of , &c. according to a Letter of Attorney , then the Obligor to pay the said Sum , Id. 116. A Condition for payment of Mony , within ten days after delivery and assurance of Land , Id. 117. A Condition for payment of all such Sums , as one lately deceased did owe to any person whatsoever , Id. 120. A Condition to pay Childrens Portions , and shares of their deceased Fathers Estates , Id. 171.
Condition of Counterbond . TO save harmless and cancel the Obliligation , Fidel. 17 , 18. 3 Cl. Guide 158 , 211. To pay the Mony , Fidel. 18. Cl. Man . 3●4 , 326. A Counter-Condition for performance of Covenants , 1 Cl. guide 200. A Counter-Condition to save harmless from two Obligations , Id. 230. A Condition to save harmless a Surety from a Bond of Arbitrement , Id. 204. A Condition to save harmless a Surety from a Recognizance , 3 Cl. guide . 61.
Condition of an Arbitration Bond. WIthout an Umpire , Fidel. 19. Compl. Cl. 323. Cl. guide 1 part 223 , 232. To Arbitrators , if not , to an Umpire , Idem 267.
Covenant Bonds . A Condition for the performance of one particular Covenant in an Indenture , Fidel. 23. For Performance generally , Id. 24. Compl. Clerk 328. A Condition to perform Covenants in a Lease , and not to seek for a new Lease from the Chief Lord , 2 Cl. guide 75.
Conditions Special . About Lands . THat a man and his Wife at the next Copyhold-Court shall surrender and release their Interest ; Fidel. 21. If Mony be not paid at a Day , then to surrender , 1 Cl. guide 293. Bridg. Con. 190 , 233 , 234 , 236 , 265 , 378. For the making of better Assurance , Fidel. 21. For quiet Enjoyment , 1 Cl. G. 160. A Condition where a man hath purchased Lands , which he intendeth shall be for the Joynture of his Wife , that his Wife shall enjoy the same , and that they be free from Incumbrances , and that the Premisses shall be worth 60 l. per Annum , ●ide . 22. A Condition that where the Obligor hath sold to the Obligee three Acres , which is in Lease for Ten years , that the Obligor shall pay 30 s. to the Obligee yearly during the term , Id. 23. A Condition that one shall enjoy a Parsonage-House , &c. free from Tithes and other Incumbrances , Id. 26. That the Premisses shall continue free from Incumbrances done by him , and that he and his Wife shall do further Assurance , Fidel. 27. A Condition where two Brothers are joyntly seized of Lands , that if one make a bargain for the sale of the Premisses , and that the other shall receive 50 l. for his part , that the other will joyn in the Assurance , Id. ib. A Condition , that whereas Lands are mortgaged , that the Mortgageors are seised , &c. and that the Premisses shall be free from Incumbrances , and to do further assurance if the Mony be not paid according to the Proviso , Id. 38. A Condition upon Marriage , to make a Joynture of 10 l. per Annum to his Wife within one year after Marriage , or at his death , free of Incumbrances , Id. 29. That a man shall within two years assure Lands of 30 l. per Annum for his Wives Joynture ; or if he die before the time , that then his Executors shall do the same ; or else the Executors shall within ten days after the death of the Obligor , enter Bond with Sureties to the Wife for payment of 50 l. within one year after the death of the first Obligor , Id. 32. For yielding up a possession , Campl . Cl. 316. That the Father shall not sell his Land from his eldest Son , Id. 308. For the Truth of an hired Servant , Compleat Clerk 317. To deliver Possession , Id. ibid. That if the Conisors of a Fine being within Age shall reverse the Fine , then to repay the marriage Mony , Id. 318. That Land shall remain to the Obligors eldest Son , Id. 329. That two shall make a Lease to two or three Tenants , Id. 330. That a man shall not alien his House , but to the Obligee , he paying such a sum of Mony , Id. ib. To deliver possession of an House , Id. 321. To save Land from Incumbrances , &c. Id. 323. For enjoying of Land for a term , Id. 324. To make an Estate in Land , Id. 329. To deliver Evidence and perform Covenants upon payment of a sum of Mony to the Obligor , Id. 332. For default of payment of Mony at a day , to enter upon and hold a Field for certain years , Id. 333. For payment of Rent , and not committing Waste , Id. ibid. To make an Estate in Feesimple by a day , Id. 334. Not to claim Dower , Id. ib. 2 Cl. g. 91. A Condition to make assurance of Lands upon Request , 1 Cl. guide 158 , 161. To pay all such charges as the Tenant shall be at by reason of the payment of his Rent , there being Controversie concerning the Title of the House , Id. 226. A Condition for the surrender of Copyhold-Lands , and to cause the Obligor to be admitted Tenant , 1 Clerks Guide 159. For quiet enjoying a Manor , according to assignment , Id. 229. A Condition for passing a Fine , Id. 160. That one shall not demise or alien sans Consent , Id. 188. A Condition not to do any act , to prejudice the Estate of the Obligor , in a Lease , Id. 193. A Condition to pay Rent during a Lease Parol , and at the end to depart , leaving the Goods and Housholdstuff mentioned , &c. Id. ib. A Condition where the Seller is bound that the Land is free from Incumbrances , Id. 229. A Condition for renewing a Lease , when the Lessor comes to the Age of 21 years , 2 Cl. guide 96. A Condition to gather Rents , and yield account thereof , Id. 82. A Condition to make true account of ones Bayliffship , Id. 84. To pay a sum of Mony within three days after Request , if the Obligee may not enjoy a Mesuage , Id. 85. Conditions ( reciting an absolute Bargain and Sale made to one for the indempnity of a Bond ) if the Mony be paid on the Bond , the Grantee to reassure , Id. 149. Conditions reciting the Surrender of Lands upon Condition , that if the Mony be not paid according to the Condition ; the Obligee may enjoy the Lands , 2 Cl. guide 141. Conditions ( reciting the release of an Annuity ) that it is free from former engagements , Id. 152. To pay Rent Quarterly for certain Rooms , Id. 155. To surrender Lands to uses , Id. ib. A Condition to permit the Obligee to receive Rents , &c. to his own use , and not to discharge a former Agreement made between A. W. of the one part , and the Obligor and Obligee of the other part , Id. 163. To assure the moiety of such Lands as shall be recovered by Law , Id. 165. A Condition not to sell Lands had in Marriage , 3 Cl. guide 307. A Condition that the Lessee shall not carry away the Wainscot or Cupboards , &c. Id. 310. Cl. Vade mecum 386. A Condition to pay Rent reserved on a Lease , according to the Covenant , 3 Cl. guide 161. Conditions to settle fettle Lands of such a value , Bridgman's Convey . 227. Conditions to free the Lands from all Incumbrances by a prefix'd time , Id. 11. Conditions to Seal a Lease by a day , according to a draught thereof already made , Cl. Vade mec. 398. To procure Lands to be passed in Fee-simple from his Majesty , and the Patentee to convey it to the Obligee by a Day , he then paying the Patentee a sum of Mony , Cl. Vade mecum 399. Conditions to enjoy Lands discharged of Rents , Hern. 308. Conditions that the Heir shall make no claim , 2 Cl. guide 238. To assure a Sum of Mony in lieu of a Joynture , 3 Cl. g. 308. To save harmless where one attorns Tenant , with a Covenant to grant a Lease when the Premisses are setled in the Obligee , Id. 157. To procure a Lease for years in consideration of a Sum of Mony given , Cl. V. m. 387. To repay mony on misliking of a Bargain , Id. 396.
Other Special Conditions . TO maintain one for life , Fidel. 24. If a mans Wife shall out-live her Husband , not having Issue of her Body , and that the Husband shall have received 300 l. ( her Portion ) ; that the Wife shall make her Will of 100 l. and that the Executor of the Baron shall pay it according to the Will , Id. 25. A Condition , that one nor his Family shall become chargeable to a Town ; Id. 26. Sh. Presid . c. 4. Sect. 27. A Condition where a man is to marry a Woman ( Widow ) who was Executor to her former Husband , that the party which is to marry shall pay 100 l. to one of her Children , according to the Will of her former Husband , Fidel. 23. A Condition to pay 200 l. within two Months after one shall use the Trade of a Barber , Id. 35. That whereas three are bound to J. for several Sums of Mony , if any of the Obligors die before the same shall be due , that the survivor will upon request become bound with new Sureties , for such of the Mony as shall be then due , Id. 36. That whereas one as Factor to two men takes Goods to sell , and after sale of them doth account with one of the parties , and with the Assignee of the other , and payeth the Mony remaining of the Sale to the one Partner , and to the Assignee of the other , who makes several Acquittances to the Factor , that they will free him from all Actions , &c. to be brought against him by the other , Id. 37. Cl. Vad. m. 530. 1 Cl. guide 17 , 186. 2d Part 188. A Condition for an Apprentices Truth , and to restore what shall appear on Proof imbezelled , Fidel. 30. Shep. Presid . cap. 4. sect. 17. If the Obligee deliver to the Obligor a true Note of such Mony as he owes for Wares , and to whom the same is owing , that the Obligors will pay all such Sums , Fidel. 33. That whereas one is lawfully assigned Guardian to an Infant by the Commissary , for the recovering and receiving of a portion of Goods , and hath received of the Register 5 l. Decreed by the Commissary to the Infant ; that at the age of the Infant the Guardian shall pay to the Infant the 5 l. and shall save and keep harmless the Bishop , Commissary and Register , Idem 40. A Condition to be entred in Chancery upon the taking out a Commission of Bankrupcy , Id. 34. This Bond to be entred in to the Chancellor . A Condition , that whereas an Administrator hath delived into the hands of the Guardian of an Infant 800 l. that the Infant at her full age shall give an Acquittance to the Admistrator , &c. Id. 34. Bond from the Creditor , to save the Commissioners harmless , Id. 171. Condition not to release a Statute , Compleat Cl. 314. Not to revoke a Letter of Attorny made by the Obligor , Id. ib. Bond for the good Behaviour , Id. 315. Not to sue for Lands or Goods , Id. 316. Not to claim a Child's part , Id. ib. For the Truth of an hired Servant , Compleat Clerk 317. For delivery of Wheat , Id. 318. That one shall account for , and pay the Proceed of Mony lent to Trade with , Idem 319. Not to release a Letter of Attorney , Id. ibid. That a man shall leave to his Wife at his death so many Goods , Id. 320. Not to impeach an Extent , Id. ib. To deliver Writings up upon payment of a sum of Mony , Id. ib. That the Obligor shall justifie such Actions as the Obligee shall commence , Idem 322. That a Bayliff of an Hundred shall duly execute his Office , Id. 323. A Condition in case of Divorce or Separation , where the man and wives Friends are bound for not intermedling one with another , Id. 327. That a Woman Divorced shall not make claim to her Husbands Lands or Goods , Id. ibid. To make a General Release , Id. 330. To procure a Surety to seal a Bond , Idem 331. To redeem a Pawn by a day , or lose it , Id. 331. For payment of Mony to Orphans , Idem 332. To save harmless , Shepherds Presid . c. 4. sect. 17. To keep a Child , Id. c. 4. s . 17. To make a Joynture , Id. ib. To lay out a Marriage-Portion , Idem cap. 3. sect. 40. To repay part of it , if she dye , Id. ib. To give Dyet , Id. ib. &c. 4. s . 17. To leave so much to his Wife , Idem cap. 3. sect. 40. That his Wife shall have leave to make a Will , Id. ib. That if he sell her Land , he shall buy as much again , Id. ib. That if Land be not of such a Value , it shall be made up , Id. ib. To give so much by his Will , Id. ib. To perform a Will , Id. c. 3. To procure a Release , Id. c. 3. s . 39. To keep or breed up a Child , Id. c. 3. sect. 36 , 40. A Condition to make an Apprentice free of the City of London at the end of his Apprenticeship , 1 Cl. guide 34. A Condition for the Truth of an Apprentice , and to restore the value of all such Goods , as by Proof shall appear he hath imbezelled , Id. 2●4 . A Condition to ackowledge satisfaction on a Judgment , 2 Cl. g. 90. A Condition to find one his Dyet by the year , 1 Cl. g. 158. A Condition to discharge the Church warden and Parishioners of a Bastard Child , 1 Clerks guide 158. To save harmless from a Recognizance taken for ones Appearance , Id. 164. To save one harmless for the Bailing of one in two several Actions , Id. ib. A Condition concerning Marriage , Idem 16. To deliver Hay and Oats at a day , Idem 161. — from Legacies , Id. 189. To justifie all such Actions as shall be commenced by reason of a Letter of Attorny , Id. 197. Condition to save harmless from a Letter of Attorny , Id. 199. Condition not to molest or sue for any Matter or Cause before past , ● Clerks guide 86. To seal a Counter-part by a day , Cl. guide 190. To deliver an Obligation by a day , Idem 191. Condition where Mony is given by a Will to a Wife and her Children , and the Mony being paid by the Executors to the Husband , to be employed for their benefit , the Husband is bound to employ it well , Id. 194. A Condition to save harmless an Executor , he not medling with the Executorship , Id. 195. A Condition to discharge an Executor from an Orphans Portion in London , being received without consent , 1 Cl. g. 196. To justifie all such Actions as shall be commenced by reason of the Assignment of a Bill Obligatory , Id. 197. ●ondition for the Truth of an hired Servant , Id. ib. Condition to discharge Executors from the payment of Legacies to Non-ages , Idem 198. To save harmless from a Letter of Attorny , Id. 199. Condition of an Obligation , wherein one Executor stands bound to another , to do his diligence in the execution of a Will , and from time to time to give a just account , Id. 200. Condition for a Brewer's Clerk , Id. 231. Condition for the building or setting up the Farm of an House , Id. 201. Condition from an Under-sheriff to a High-sheriff , for saving harmless , Id. 203. Condition to save three harmless , which are bound for one by Recognizance to the Chamber of London , for Orphans Mony , Id. 202. Condition collateral , if the Obligor in a former Bond pay not the Mony , then this Obligor to pay it , the Obligee assigneth the Bond over , 2 Cl. g. 76. Condition to erect a Barn , Id. 77. A Condition , that A. H. hath delivered a Bond and Letter of Attorny to C. D. to receive a Debt ; C. D. bound to deliver the Bond or Mony , 2 Cl. guide 78. Condition to deliver Wool , Cow-hides , Barly , Id. 79 , 80. Condition to bring an Inventory by a day into the Prerogative Court , Id. 85. Condition , not to trouble or vex one for any former matter , Id. 86. To acknowledge a Statute per a day , Idem 88. A Condition not to meddle with Executorship on assignment thereof , Id. ib. Not to do any act as Executor , without assignment of Coexecutor , Id. 89. To procure one to seal Releases by a day , on payment of Mony , Id. ib. That a Woman shall release her Dower , Id. 91. To suffer a mans Wife to make a Will , Id. ibid. To marry one by a day , or else to pay a sum of Mony , Id. 92. To be a true Prisoner , Id. ib. To save harmless for being bound for the appearance of a Man , Id. 93. A Condition wherein the Factor is rashly bound to serve the Merchant , and no other , Id. ib. A Condition for executing a Gaolership , Id. 95. To find Apprentice Apparel by his Friends , Id. 101. That one Executor shall not release without the other , 2 Clerks guide 103. That one shall not be bound for any person without consent , Id. 104. Condition to keep the Peace , Id. 105. To do ones endeavour for the recovery of the Debt against the Surety , Idem 106. To save harmless upon an Attachment , Id. 111. Condition , that a Sheriff executing a Writ , may detain out of the Goods and Lands extended so much Mony as , &c. Idem 113. To save harmless from a Bond of Arbitrement , Id. ib. Condition , not to prosecute the persons named in a Letter of Attorny , on or before , &c. Id. 116. To procure one to seal a Counter-part by a day , Id. 117. To save harmless from all Debts that may be duly demanded as Executors of , &c. Idem 119. For a Gaoler to an Under-sheriff , for saving harmless , Id. 121. A Condition upon granting Toti● qu●ies for a Replevin , Id. 170.
Assignment of a Bond. TO the Assignees own use , Fidel. 186. Assignment of a Bond , Bridgman's Presidents . Condition to pay Mony with an Apprentice , Cl. Vad. m. 381. To pay Mony upon the obtaining a Lease from the Queen , Id. 385. That the Deputy-Attorny shall pay Costs and Charges for all Actions unlawfully prosecuted by him in the name of the Grantor , Id. 387. To save one harmless of a Bail in B. R. Id. 389. To save one one harmless for delivery of an Indenture , Id. 396. To save one harmless from a Recognizance , taken for ones appearing , Id. 570. To discharge the Churchwardens and Parishioners of a Child born in the Parish , Id. 573. To save harmless Sureties bound for the Good-Behaviour , Id. 620. To save harmless from all Actions , &c. Bridgm. Conv. 369 , 374. To save harmless an Executor , for payment of several Legacies to Orphans , with a Covenant to see the same disposed to the best advantage , 3 Cl. guide 101. To save harmless from a Letter of Attorny , 1 Cl. g. 199. To acknowledge satisfaction of a Judgment in an Information , Cl. V. m. 390. The Obligor to pay Mony for Wares delivered upon Trust to another , that shall make default of payment , Id. 393. For a Purveyor of Wheat to his Majesty , Id. 397. Condition to prevent Non-residency , Id. 403. For a Pauper to pay Mony if he be Non-suited , Id. 582. For the Husband to leave the Wife so much , if he die before her , Id. 621. For the Resignation of a Prebendary upon Request , Id. 622. To defray all Charges of Suit , Bridgman Con. 307. To pay Mony for Soliciting , Id. ib. Condition , that the Lord's Bayliff shall give true account , 2 Cl. g. 84 , 170. Condition to appear before Justices of the Peace , Id , 172. Condition for Replevying Goods , Id. 331. — Cattle , Id. 332. To pay the Moiety of a Debt , when it shall be recovered , Id. 333. Condition for Curing a Disease , or pay Mony back , 3 Cl. g. 194. That one shall pay for such Wares as were deliverd to another , Id. 197. To deliver Writings by a day , 3 Clerks guide 197. Condition to lend a Sum of Mony at a day nominated , for a certain time then following sans interest , 1 Cl. g. 162. A Condition from a Bayliff and his Sureties , to an High-sheriff , 3 Cl. g. 130. A Bond to Churchwardens : Condition to pay 4. l. per Annum to the Poor of the Parish ( for 50 l. left by a mans last Will ) and to keep the Stock entire ; and upon the Death of any Surety , to put another in his stead , Cl. Vade mecum 566.
Books lately printed for , and sold by JOHN WALTHOE , at his Shop in Vine-Court , Middle-Temple . I. A Compendious and Accurate Treatise of Fines and Recoveries : By W. Browne , Gent the Third Edition ; with the Additions of several Presidents and Observations , Rules and Cases , concerning the effect and operation of Fines and Recoveries . Octavo . II. The Clerk's Grammar Enlarged : Wherein are laid down plain and easie Rules for the making any Bond or Bill Obligatory , with the several Conditions in most Cases : Also Instructions how to place the Names , Sums , and Dates of the same , in true proper Latin , &c. The Second Edition , i● 12ᵒ. III. Observations Historical and Genealogical : In which the Originals of the Kings Electors , and other the Sovereign Prince of Europe ; with a Series of their Births , Matches , more remarkable Actions and Deaths ; as also the Augmentations , Decreasings , and Pretences of each Families are drawn down to the Year 1690 ; Written in Latin by Anth. William Schowart , History Professour at Frankfort ; and now made English ; with some Enlargements relating to England , by J. W. and B. J. Gent. In large Octavo . IV. The Travellers Guide , and the Countries Safety : Being a Declaration of all the Laws of England against Highway-men and Robbers upon the Road , &c. In 12ᵒ. The Young Clerk's Guide ; In Four Parts Compleat ; Or , An exalt Collection of Choice English Presidents , &c. 8ᵒ. Where you may also be furnished with Blank Bonds of all sorts , and all other Stationary Wares .
FINIS .