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
was If Tenant in Tail of the Mannor of D. be bound in a Recognizance to J. S. which Recognizance after comes to the King by the Attaindâ— of J. S. of High-Treason and after Tenant in Tail dies and the Issue in Tail alien the Lands bona fide whether the King may extend the Lands in the Hands of the Alience It was resolved That if Tenant in Tail become indebted to the King by Judgment Recognizance Obligation or other Specialty and dies before any Process or Extent and the Issue in Tail alien the Land bona fide this Land shall not be extended by force of this Statute And also that in this Case in as much as the Debt was originally due to a Subject it is not within the Act to charge the Lands in the possession or seisin of the Heir in Tail or of his Alience for this Act extends only to Debts immediately due to the King originally and not to those which accrew to him by way of Assignment Outlawry Attainder Forfeiture Gift of the Party or any other collateral way 7 Rep. 21. Lord Andersons Case The Statute of 7 Jac. makes Assignments of Debts void other than such as grow originally to the Kings Debtor bona fide it restrains Assignments of Debts which are not due to the Debtors themselves but assigned to or by them to other Persons The purport of this Law was That no Debtor of the Kings should procure another Mans Debt to be assigned which was a common practice but a Man may assign his own Debt tho not to his own Use for what he may himself release and discharge by the same Reason he may assign as B. was bound to C. in a Stat. of 2000 l. C. dies Intestate his Wife administers and marries F. F. with others became bound to the King in 6000 l. F. and his Wife by Deed enrolled in Cur. Ward assign the Statute to the King by payment of the 6000 l. the Assignment was good Hob. p. 253. Brediman and Coles Cro. Hill 16 Jac. p. 524. id Case A Duty which is not naturally a Debt but by circumstance only as Debt upon Bond for performance of Covenants or to save harmless may be assigned over to the King for Debt yet a present Extent shall not issue but a Scire Fac. 2 Leon. p. 55. Beaumounts Case Debt against one as Executor and upon fully administred pleaded it was found pro Quer. who assigned the same to the King 2 Leon. p. 67. Noons Case M. indebted to S. by a Note in writing per me but not sealed such a Debt may be assigned to the Queen 3 Leon. 234. March An Obligation may be assigned to the King sans Deed enrolled 3 Leon. p. 234. South and Marsh 21 H. 7.19 Where the King sues for a Debt assigned to him the Obligor cannot plead nil debet for by the Assignment it s become matter of Record ibid. An Obligation forfeited to the King by the Statute 28 Eliz. c. 8.1 Q. if the King may grant before Seisure 2. There are two Obligees and one forfeits Q. if the King shall have all the Bond 1 Rolls Rep. p. 7 12. Jac. B. R. Cullan and Bets. In Assignment of a Bond to the King the â—ead shall only be liable from the time of the Assignment but in Assignment of a Recognizance or Statute the King shall have the Land at the time of the Judgment rendred Lit. Rep. p. 125. Roy versus Hanton By the grant of bona catalla an Obligation passeth i. e. Paper and Wax yet the Grantee may not have Action upon this for that is not transferable Lit. Rep. 87. Dyer 25 H. 8.5 If a Debt be assigned to the King in this Case no priority of Execution 1 Brownl 37. A Condition to save harmless for assigning a Bond vide the Form Bridgmans Presidens Clark was indebted to A. by Bond and after delivers to Andrews certain Hogsheads of Wine to satisfie the said Debt and afterward Clarks Obligation is assigned to the Queen for A's Debt Per Cur. the property of the Goods by the delivery of them to Andrews before the Assignment was altered 2 Leon. 89. Bridget Clarks Case A. was indebted to B. who was indebted to the Queen B. assigned his Debt to the Queen by all the Barons Process shall be awarded out of the Exchequer to enquire what Goods A. had at the time of the Assignment and not what he had tempore scripti praedict fact 3 Leon. 196. Obligation Of Creditors in respect of Statute of Bankrupts and Assignments OSborn and Bradshaw were Sureties pro Churchman and had Counterbonds to save harmless the Sureties paid the Mony and afterwards Churchman became a Bankrupt Resolved that they were Creditors within the Statute 13 Eliz. Cro. Jac. 127. Osburn versus Churchman If an Obligation be taken in the Name of another to the use of a Bankrupt the Commissioners may well assign that unless the other party hath of his own Mony satisfied Debts due by the Bankrupt Noy p. 142. Caâ—â—hman's Case Debt sur Obligation assigned by Commissioners of Bankrupts and doth not shew the Obligation he need not because he comes in by act of Law and hath no means to obtain the Obligation As Tenant per Statute Merchant or Dower shall have advantage of a Rent Charge sans shewing the Deed. Cro. Jac. p. â—9 Gray and Fâ—â—lder R. is indebted to S. and B. joyntly S. becomes a Bankrupt and the Commissioners assign the Obligation to B. Q. 1 Keb. p. 167. Roylston and Ratcliff If I am bound to J. S. and he before Bankrupcy assigns the Bond this is liable to the after Bankrupcy of J. S. being only suable in his Name 2 Keb. 331. Backwell versus Litcott In Debt sur Bond the Defendant pleads before Action brought the Plaintiff became a Banrupt Per Cur. it 's an ill Plea and until an Assignment made the Debtor is defenceless and payment before Commission sued out is good enough and so it is before his Debt be assigned 3 Keb. 316. Andrews and Spicer In Debt sur Obligat the Defendant pleads that it was in trust for Holt who was a Bankrupt virtute Commission ' c. this Debt was assigned to Ashly and Penning aliis Creditoribus The Plaintiff replies It was not assigned The Defendant demurs specially for doubleness The Court conceived the Bankrupcy traversable as well as the Assignment yet the Issue is well enough 3 Keb. 737. Jones and Bolton Condition to give account to the Creditors c. 1 Keb. 815 843. Selby versus Walker The Disposition by Commissioners of Bankrupts saves the forfeiture of the Obligation 2 Keb. 202. in Robin's Case I shall here subjoyn some things respecting Matters of Tort as Forgery Detinue c. of Obligations Forgery IF a Man forge a Bond in my Name I can have no Action of the Case yet but if I am sued I may tho' I may avoid it by Plea But if it were a Recognizance or Fine I shall
THE LAW OF Obligations and Conditions OR An Accurate TREATISE wherein is contained the whole Learning of the LAW concerning Bills Bonds Conditions Statutes Recognizâ—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 8 vo 1687 Cokes Entries fol. 1671 Clarks Manual 8 vo 1678 Hernes Pleader Eng. fol. 1685 The Book of Entries fol. 1685 Robinsons Entries fol. 1685 Rastals Entries fol. 1670 Placita Generalia Specialia 8 vo 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 â—â—…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. BOnd 's 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
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 Abridgâ— 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. aâ—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 Michaelmaâ— and Christmas or paid to him or his Heirs at any of the said Feasts 150 l. then c. and demurs because the Obligor hath any time to pay one or other and that there is not any breach as long as he liveth so Action is brought before breach sed per Cur. though the Obligor hath Election yet he ought to pay the 12 l. yearly till he pay the 150 l. and because he hath not alledged payment of the one or the other the Bond is forfeited Cro. Jac. 594. Abbot and Rookwood and he hath lost his Election 2 Rolls Rep. 215. mesme Case Condition if Obligor before M. make a Leâ—se to the Obligee for 31 ans if A. will assent and if he will not then for 21 years c. A. will not assent the Lease for 21 years ought to be made before M. Dyer 18 Eliz. 347. 1 Rolls Abr. 446. Condition to enfeoff the Obligee of D. or S. Obligee hath Election 18 Ed. 4.17 b. So if it had been upon request or to pay 20
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.
performance of Covenants the Breach ought to be more precise and particular than Actions of Covenants because of the Penalty yet if what is material and the substance of the Covenant be alledged it may suffice as a Covenant was that the Defendant a Bayliff should not let at large any Prisoner that should be arrested without Licence of the Plaintiff an Under-Gaoler The Breach was that the Defendant had let at large at Westminster sans licence c. such an one who was arrested but shews not the place or time of the Arrest Per Cur. he need not the Escape being the material part of the Covenant Siderfin H. 12 Car. 2. f. 30. Jenkins and Hancocks Debt by a Brewer on a Bond to perform Articles against his Clark one was that the Defendant should deliver such Ale and Beer weekly as should be delivered unto him to such Customers as he had in his Charge and to receive the Monies due for the same and should accompt with the Plaintiff every Saturday weekly for such Monies he should receive for Breach the Plaintiff assigns that the Defendant did not account with him for such Monies as he had received on Saturday the 25th c. Verdict pro Quer. Judgment was arrested for the Breach was uncertainly alledged because the Plaintiff doth not shew the Defendant had any Customers in his charge or who they were or that he had delivered Ale or Beer to them or received any Mony of them Stiles p. 473. Arnold and Floid A Covenant that he and his Executors and Assigns would repair a Mill and alledgeth that the Mill was defective in Reparations and the Defendant his Executors and Assigns did not repair it Def. demurs because he did not alledge that he not his Executors or Assigns did not repair it for if any of them did repair it the Action lies not and per Cur. it is naught But upon motion of the Court the Defendant waved his Demurrer and the Plaintiff amended Crook Eliz. p. 348. Cole and How If the breach of the Condition of an Obligation be ill assigned the Verdict shall not aid this Default Sanders 2 part 179. Hele and Wotton Kerby and Hansaker there cited Though the Action be well brought upon the Obligation yet when it appears the Condition was for performance of Covenants there can be no cause of Action without some Covenant broken and so shall not have Judgment though he hath a Verdict Hob. 14. in Sir Daniel Norton's Case Disability wherein the Obligor hath disabled himself to perform the Condition IF a day be limited to perform a Condition if the Obligor once disable himself to perform this although he be enabled afterwards before the day yet the Condition is broken as if the Condition be to enfeoff me before Michâ—mas if before the Feast he enfeoff another yet the Condition is broken 21 E. 4.55 The Condition is if he permit and suffer all his Lands c. to descend remain or revert to such an one his Son immediately after his decease without any Act c. The Obligor â—ells parcel of the same Lands though he purchase them again yet the Obligation is forfeited Benlow n. 34. p. 9. Sir A. Main by an Indenture demiseth Lands to Scot for 21 years and covenants at any time during the Life of Scot upon Surrender of his Lease to make a new Lease c. and an Obligation to reform the Covenants Sir A. Main pleads in Debt upon this Obligation that Scot did not surrender Scot replies that after the said Demise Sir A. M. had accepted a Fine sur omisance de droit come ceo and by the same Fine grant and renders the Land to the Conisee par 80 ans Defendant demurs Per Cur. 1. Sir A. M. by the Fine levied had disabled himself either to take a Surrender or to make a new Lease and so hath broken his Covenant 2. Though the first Act was to be done by Scot viz. the Surrender and Scot may surrender if the term for 80 years be the Interest of a future term yet Scot shall have his Action without making any Surrender for after Surrender Sir A. M. cannot make a new Lease which is the Effect of the Surrender he hath disabled himself 5 Rep. 20. b. Sir Anthony Mains Case Poph. 109. Benl n. 121 125. So if he disable himself to perform it in the same plight as Feoffee on Condition to re-enfeoff grants a Rent-Charge marries a Wife c. this is a forfeiture of the Condition 44 E. 3.9 b. Coke on Litt. But if the Feoffee on a Condition to re-eneoff a Stranger and after another recovers the Land against him by default yet until Execution sued the Condition is not broken 44 E. 3.9 b. One promiseth to perform an Award which is that he shall after deliver an Obligation to another in which he is bound to him without limiting any time when this shall be performed If he bring Debt on the Bond and recover and after deliver the Obligation yet this is not any performance of the Condition for he ought to deliver this as it was at the time of the Award made Tr. 15 Jac. B. R. 1 Rolls Abridg. 447. Nichlâ— and Thomas If no time is limited if the Obligor be once disabled he is perpetually disabled 21 E. 4.54 b. Vid. Cases del Disability 1 Rolls Abr. 447 448. Conditions to perform particular Covenants To make Assurance TO make such Assurance as Counsel shall advise A Condition to make to the Obligee or his Assigns so good a Lease as Counsel shall advise and the Obligee appoints him to make a Lease to J. S. he must do it for it is not as shall be advised by Counsel Per Coke if the words were he shall make as good a Lease as Counsel shall devise he ought to have brought a Lease drawn by the advise of Counsel 1 Rolls Abr. 424. 1 Rols Rep. 373. Allen and Wedgwood To make such Assurance c. as the Plaintiffs Counsel shall devise it is not sufficient to plead he made such Assurance but that the Plaintiffs Counsel devised such Assurance which he had made Crook Eliz. 393. in Hutchinson's Case One covenants to make such Assurance c. as the Plaintiffs Counsel shall advise and he pleads performance of Covenants he cannot afterwards say Consilium non dedit advisantentum in Specot and Sheer's Case Crook Eliz. 828. The Defendant covenants to assure such Lands by such Assurance as by the Counsel of the Plaintiff shall be devised the Breach assigned in this the Plaintiff caused such an Assurance to be drawn and ingrossed and put Wax to it and required the Defendant to execute it and he refused The Defendant demurs per Cur. it is no Breach because the Plaintiff himself devised it Crook Eliz. p. 297. More versus Roswel On Covenant that before such a day he would make sufficient Estate of Lands to such value to the Plaintiff for term of his Life as by the Plaintiffs Counsel
it presently for the Covenant is peremptory 1 Anders p. 122. Case 117. Andrews and Eddon 1 Rolls Abr. 424. Wotton and Crook 2 Rep. Mansers Case The Condition is that he shall make a good absolute perfect Assurance in Fee of Copyhold Lands and after he renders this upon Condition of payment of Mony it is not any performance for the Assurance ought to be absolute so if it were to make farther Assurance if he make Assurance on Condition it is not a performance 1 Rolls Abr. 425. Risbon and Gayre It must not only be an absolute but an effectual Conveyance If a Man be bound to surrender a Copyhold to the use of A. and his Heirs on consideration of Mony if he surrender into the Tenants hands he must get it presented for it must be an effectual Surrender as if a Man be bound to make a Feoffment to me upon Request if I request him him to make a Deed of Feoffment with Letter of Attorny to B. to make Livery to me and he doth so this is a good inception yet if Livery be not made it is a Forfeiture of the Condition 1 Rolls Abridg. p. 425. Shan and Belby A Condition to make assurance of Lands to the Obligee and his Heirs and the Obligee dies yet he must make assurance to the Heir for the copulative shall be taken as a disjunctive 1 Rolls Abr. p. 450. Horn and May. Dubitat in Jones p. 181. Eaton and Laughter For it was the intent the Heir should take by descent and not by purchase A Condition to enfeoff two before such a day and one dies before the day yet he ought to enfeoff the other 1 Rolls Abr. 451. Horn and May. 5 Rep. 22. a. Benl n. 31. contra A Condition to give and grant to him his Heirs and Assigns The Defendant pleads he hath been ready to give and grant ill Plea for he must plead that he did it Aliter if the words had been as Counsel should advise 1 Brownl Kep 75. Chapman and Pescod Condition to enfeoff Lands of such an yearly value The Defendant pleads he enfeoft him of the Mannor of D. in Com. W. and of the Mannor of S. in the County of S. Cave Replication for it cannot be tryed 11 H. 7.14 One is obliged to assure 20 Acres of Land the Acres shall be accounted according to the Estimation of the Country where the Lands lie and not according to the measure limited in the Statute Cro. Eliz. p. 665. Some and Taylor One by Indenture bargains and sells to the Obligee all his Lands in D. and covenants that he will make farther assurance of all his Lands the Breach assigned was because he did not make farther assurance of those Lands and it appears by the pleading that the Bargainor had enfeofâ— the Bargainee before all his Lands there so as he had not any Lands at the time of the Bargain and Sale and if he then had not then the Breach is not well assigned and so held tota Curia But if one enfeoffs another of his Lands and afterwards bargains and sells them by name and covenants to make assurance he is bound to make assurance accordingly Crook Eliz. p. 833. Laâ— and Hodges The Condition was whereas the Defendant had granted an Annuity to the Plaintiff that the Defendant should make farther assurance to the Plaintiff for the enjoying thereof within one Month when he should be thereunto required the Month shall begin from the time of the Request Stileâ— p. 242. Wentworth's Case A Man by Deed indented bargained and sold Lands to another in Fee and covenanted by the same Deed to make him a good and sufficient Estate in the said Lands before Christmas next and afterwards before Christmas the Bargainoâ— acknowledged the Deed and the same is enrolled per tot Cur. by the Act the Covenant was not performed for he ought have levied a Fine or made a Feoffment c. 3. Leon. p. 1. Anonymus Condition of Covenant for quiet Enjoyment D. was bound to H. on Condition that H. and his Heirs might enjoy certain Copyhold Lands surrendred to him The Defendant pleads the Surrender and that the Plaintiff entred and might have enjoyed the Lands The Plaintiff replies that after his Entry one G. entred upon him and ousted him Per Cur. Replication ill because he did not shew he was evicted out of the Land by lawful Title for else he had his Remedy against the wrong doer Vaugh. p. 121 122. Hammonds Case The Defendant leased to the Plaintiff an House by the words of Demise and Grant which words import a Covenant in Law and the Lessor covenanteth that the Lessee shall enjoy the House during the term without Eviction by the Lessor or any claiming under him which express Covenant was narrower than the other and gave Bond to perform Covenants The Plaintiff grants his term over to a Stranger The Plaintiff assigned for Breach that one S. entred upon the Assignee and upon Ejectment recovered against the Assignee Debt was brought upon this Bond per Cur. by this Covenant in Law the Assignee shall have a Writ of Covenant and for this breaking the Covenant in Law the Obligation was forfeited but because the Plaintiff did not shew that S. had an ancient Title for otherwise the Covenant in Law was not broken therefore Judgment against the Plaintiff 4 Co. Rep. 80. b. Nokes Case Cro. El. p. 674. id Case If I. covenanteth with B. to enter into a Bond to him for enjoyment of such Lands and do not express what Sum he shall be bound in such a Sum as amounteth to the value of the Land 5 Rep. 78. a. in Samons Case The Defendant pleads performance of Covenants the Plaintiff alledgeth a Breach upon this Covenant that the Lessee should enjoy the Land without any lawful interruption or disturbance of the Lessor or his Executors and shews that the Executors entred upon him and ousted him and shews not any interruption for a just cause and adjudged good 1 Brownl 80. Ratcliffs Case Debt on Bond to perform Covenants the Covenant was for quiet enjoyment without let trouble or interruption c. the Plaintiff assigned his Breach that he forbad his Tenant to pay his Rent Per Cur. it s no Breach unless there were some other Act 1 Brownl p. 81 Witchcot and Liveseys Case Vide Moor n. 156. Broughton and Conrey Where the Defendant is not bound to warrant peaceable possession to the Vendee but only for Acts by himself done or to be done The Condition was If the Defendant warrant and defend an Ox-Gang of Land to the Plaintiff against J. S. and all others that then c. Resolved that the word defend shall be taken as a Defence against lawful Titles and not against Trespasses And per Anderson one Covenants to make a Lease of all his Lands in D. and in D. he hath as well Copyhold as Freehold Lands he is not by this Covenant to make a Lease of his Copyhold Land for
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 â—lâ— 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 legitâ— 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 â—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
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
had been delivery to both 2 The two Bargaâ—es need not give notice to the Defendant that they had the Reversion by Bargain and Sale for being the condition of a Bond it is at his Peril to take notice being obliged to deliver it to him or his Assigns Cro. Jac. p. 475. Hingen and Pain Bridgman Rep. 128. The Condition was that the Defendant should not deliver Possession to any but the Lessor or such persons as should lawfully recover The Defendant pleads he did not deliver but to such persons as lawfully recovered it Good Plea he need not shew he delivered to J. S. by lawful Title 1 Keb. 380 413. Nicholas and Pullen Conditions concerning Wives COndition not to sell the Apparel of his Wife it s a good condition If a man bind himself to a stranger to pay 20 l. per Annum to his Wife this is good 1 Rol. Rep. 334. Smith and Watson The Condition was to permit his Wife to make a Will and dispose such Legacies the Defendant pleads she made no Will it was found she made a Will but that she was Covert c. Per Cur. This is a good Will within the intent of the Condition and it is but her appointment which the Husband by his Obligation is bound to perform Cro. Car. 219. Marriot and Kinâ—an The Condition was to permit his Wife to make a Will and to dispose of one hundred pounds of her Husbands Goods 〈◊〉 paid within one year after her decease The Defendant pleads â—e permitted his Wife to make a Will the Plaintiff demurs Per Cur. he ought to have pleaded that he had paid accordingly otherwise he doth but answer to one part of the Condition Cro. Car. 597. Sherman and Lally The Condition was if he should survive A. S. his Wife that if within three Months after her decease there were paid to the Obligee 300 l. to and for such uses and purposes as the said A. S. by any Writing under her Hand and Seal subscribed c. should nominate and appoint that then c. The Defendant pleads she did not limit c. any use for the imployment of that mony The Plaintiff replies she by her Will in Writing c. did appoint such Sums to be paid The Defendant demurs because she ought to have made a Deed in Writing and not a Will But Per Cur. this Declaration was good and though the pleading was that A. S. Voluit devisavit and not that it was appointed by her yet Per Cur. well enough for it is not properly a Will that is made by a feme Covert but a Writing in nature of a Will Cro. Car. 376. Tille and Petre. Authority was given to the Wife to â—lso 300 l. and she disposeth 200 l. by fifties and well Condition to make a Will in the presence of her Husband or if he refuses it such person as her Husband should appoint Qu. If refusal ought to be alledged or notice to the Husband 1 Keb. 347. Harris versus Beffie To procure a Marriage between the Plaintiff and B. P. such a day or before The Defendant pleads the Plaintiff before that day called B. P. Whore and used other base Language by reason whereof the Defendant could not procure the Marriage no Plea for he hath not shewed his endeavour to procure the said Marriage and notwithstanding such words they might have inter-married Cro. El. p. 694. Blandford and Andrews A Condition to pay such a Sum as E. B. should appoint after Marriage with the Defendant by her last Will or other Writing signed in tiel form the Defendant saith she made no Will nor any other Writing c. the Plaintiff sets an appointment in Writing forth the Defendant saith it was after revoked this is no departure because its a fortification of the Bar and could not be foreseen and its revocable contrary to Hobert Ormonds Case 1 Keble p. 821. Shepard and Spencer A Condition not to meddle with the Goods of the Feme which were her first Husbands but that she and her Children might enjoy them sans disturbance claim or interruption of the Defendant Breach assigned that the Defendant took and detained the Goods of the first Husband and Issue pro Quer. and the Breach well assigned Cro. Car. p. 204. Crawle and Dawson A Condition to pay so much yearly to his Wife it good as well as to give her a Gown 27 H. 8.27 Condition to accept a Lease A Condition If the Obligor accepted a Lease by Indenture of such Lands upon the Plaintiffs request and sealed a Counter-part thereof then c. The Defendant pleads the Plaintiff did not request him to accept a Lease the Plaintiff replies he had caused an Indenture to be drawn and ingrost according to the said Condition and a Label affixed cum sera appensa and required and offered it to the Defendant to accept thereof and he refused Issue upon the request found pro Quer. Error 1. Sera is not Wax sed non allocatur 2. Because he avers not the Lands mentioned in the Indenture are the same in the Condition but because he pleads non requisivit and he replied it was secundum formam Conditionis it shall be intended the same Lands and if they were other Lands the Defendant ought to shew it Cro. Car. 560. Lee versus Russel Condition to appear at a Place THE Condition was That S. and his Wife should appear at the Marshals Court S. appears and pleads that at the time of the Obligation he was solus innuptus Judgment pro Quer. sur demurer Stiles p. 17. Pain and Skelton To appear within eight days after warning warning ought to be shewn to be given of the Action brought Cro. Jac. 46. Yelv. p. 52. Hargrave and Rogers In Debt on an Obligation to appear at a certain day Imprisonment is no Plea 2 Rolls Rep. 136. Anonymus In a Recognizance to appear c. Imprisonment by Commissioners of the Adâ—ralty is an excuse Moor n. 251. Lacies Case A Condition to come to the Kings Head c. on the 12th of October and there elect two Arbitrators who with two others to be elected by the Plaintiff should arbitrate of all Sums c. the Defendant pleads on the 12th of October he came to the Kings Head c. and there elected two Arbitrators but the Plaintiff was not there Plea not good because he shewed not at what hour of the day he came nor how long time he continued there for he ought to be there so long time before the last instant as the Arbitrament may be made neither doth he shew that his two Arbitrators were there present Cro. Eliz. 549. Edmonds versus Marks The Under-Sheriff took a Man by Attachment out of Chancery who took Bond of him to appear at the day contained in the Attachment Per Cur. the Bond is void for that the Defendant was not bailable upon the Attachment 3 Leon. 208. Bland and Riccards Debt upon an Obligation taken in the Kings Name in
between him and his Parliament being recited The Defendant pleads King Charles the I. was Beheaded and never Restored c. pro Defendente This appears to be personally meant of the King and not in his politick capacity 1 Keb. 820. 2 Keb. 215. Grinsells Case Either So as the Award shall be delivered to either of them either shall be expounded every for each ought to have a part Cro. Eliz. 448. Parker and Parker Debt upon an Obligation dated 1. of February 25. Eliz. The Defendant pleads a Release bearing date after making of the Bond of all dues demands whatsoever except an Award made between the Plaintiff and one G. W. with R. K. deceased and one Obligation of 500 l. for performance of the said Award bearing date 29 April 25 Eliz. In the Replication the Plaintiff shewed the special matter that the Award was made the 29th of April and the Bond was made the 1 of February Per Cur. bearing date shall have reference to the Award and not to the Bond. 1 Brownl Rep. p. 54. Gage and Gilbert The Condition was to enjoy a Ship with all the Furniture without disturbance The Case was after Sale of the said Ship a Stranger sues the Plaintiff for Mony due for certain Ballast bought by the Defendant and put into the Ship before the sale of the Ship Per Cur. Ballast is no Furniture of a Ship but Guns are 1 Leon. Case 59. fo 46. Kinters Case Miles If such a place be 4 Miles from Rye it shall be construed 4000 Paces Cro. Eliz. 412. Minge and Earl If I am bound to you that J. S. who is in truth an Infant shall levy a Fine before such a day which is done accordingly and after the same is reversed by Error yeâ— notwithstanding the Condition is performed 1 Leon. p. â—4 in Leighâ— Case Obiter A Condition to deliver 18 Barrels of Ale on Contract the intent is the Vendor shall have the Barrels again when he Ale is expended 27. H. 8.27 I am bound to given a Shoulder of every third Deer which I kill in my Park yet I may dispark it for this comes not within the Rule That a Man shall not by his own Act defeat or frustrate his own grant but it is to use the liberty I reserved to my self upon my grant standing with the grant Hoâ— p 41. in Coopers Case I shall now speak something of Statutes and Recognisances for that they are Obligations on Record but I intend not to handle the Learning at large as to Executions thereon and what is liable thereunto for that is more properly to be treated of under another Title But I shall here speak of the Nature of them the Form of them and Manner and Effect of the Acknowledgment and something of the Process and they concern Subject and Subject or the King and a Subject of the first are Statutes and Recognizances Statutes are of two sorts Statutes Merchant of the Staple Statute-Merchant is acknowledged before Persons authorised sealed with the Seal of the Debtor and of the King which is of two pieces the greater is kept by the Mayor c. and the lesser by the Clark this is by Stat. de Mercatoribus 13 Ed. 1.4 Acton Bornel the form of it vilâ— post This is become now a Common Assurance Statute-Staple is founded on 27 Ed. 3.2 this is acknowledged before the Major of the Staple but now by Stat. 23 H. 6. a Statute-Staple improperly so called may be acknowledged before one of the Chief Justices before the Major of the Staple at Westminster or the Recorder of London It is sealed with three Seals the Seals of the Conusor the King and the Person before whom it s taken the form vide post They are both of one effect as to execution All Bonds concerning the King shall be of the nature of Statute-Staples and so for first Fruits 33 H. 8.39 26 H. 8.3 The manner of making Let there be a certain day of payment limited in it And yet one Davies acknowledged a Statute-Merchant to J. M. The Statute was formal in all Points saving that no day of payment was limited in the said Statute Upon demurrer to And. Quereâ— the Statute was adjudged to be good when it appears by the Statute when the Mony is to be pâ— it s well enough as it doth here viz. presently there ought to be a time certain when the Mony shall be paid either an actual time or a legal time if it be to be paid at Michaelmas after J. S. shall come to Pauls it s not good because it may not appear to the Major judicially when to make Execution Winch 82. Hichford and Machin solemnly argued by all the Judges the same Case in Jones Rep. 52. Bridgmans Rep. 16 17 18. The Statute-Staple is to be sealed with the Seal of the Conusor and the Seal of the King appointed for that purpose and with the Seal of the Chief Justice Mayor and Recorder before whom it is acknowledged and they before whom it is taken do subscribe their Names to it If a Statute-Merchant be not sealed with the Seal of the Debtor and there be not a Seal of two pieces annexed to it this is no good Statute neither can it take effect as a Statute 35 El. Hollingworth and Asâ—l An Querela to avoid a Statute Merchant taken before the Mayor of N. furnishing in his Writ two Causes to avoid the Statute 1. The Mayor â—e had not any such Authority to take the Statute 2. Quod scriptum recognit c. non fuit sigillat cum sigillo Reginae de duabus peciis provis pro sigillatione Statut. Mercator and upon this Writ the Plaintiff counts and alledgeth these two matters Per Cur. the Count is double and vitious for though a Writ of Audâ— Querela may comprehend divers Causes for the avoidance of a Statute yet the Count ought to comprehend but one Cause and either of these Causes alledged was sufficient to avoid the Statute and an Audita Querela lieth in such Case and he shall not be put to sue a Writ of Error to avoid it Cro. El. 809. Forrest and Ballard but he cannot assign want of one of these Seals for Error if he had admitted the same in the Common Pleas Moor n. 738 Worsley and Charnock Those that are meer Recognizances as before a Master in Chancery c. need not be sealed but they must be enrolled Cro. El. 355. 1 Leon. 228. Ascue and Fotiam Issue is whether there are two Seals it s well tryed by a Jury and not by the Mayors Certificate Statutes and Recognizances must be enrolled and being inrolled it binds Persons and Lands as a Record from the day of the entry of it upon the Roll it s a Recognizance from the first acknowlegdment and binds as a Record from that time 2 Rolls Rep. 382. Allen p. 12. Stiles p. 9. And all Statutes-Merchant and Staple are to be brought to the Clark of the Recognizances within four months
and to be inrolled within six months otherwise they will be void as to Purcâ—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 niâ—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 Chancerâ— upon the first Certificate scil Capias Corpus G. G. Mil. Baronet qui per nomen G. G. Armig. â—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
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 Dâ—ddrige ye are put to Aud. Quer. 2 Rolls Râ—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 prâ—â—ret per recordum and not hoc paratus c. 1 Keb. 185. Maire and Spencer and p. 318. Borâ— 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 Staâ—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 â—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. Hâ—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 notiâ— 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. â— 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 Testimonieâ— to prove that the Monies mentioned in the Conditionâ— 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 proâ— any Testimonies to make such proof as aforesaid
Session pacis in Comitâ— praedict tenend ad stand â—ct in Curia siquis versus cum loqui voluerit de diversis feloniis transgressionibus unde idem R. B. judicatus existit ut dicitur ad respondend dicto Domino Regi de iisdem prout debet dat c. Recognisance of Bail Kanc. ss Memorandum Quo â—quinto die A. D. de c. G. H. de c. J. K. de c. personaliter venerunt coram nobis C. D. E. F. Justiciar dicti Dom. Regis ad pacem suam in Com. suo praedict conservand assignatâ— recogneverunt se deberâ— eidem Dom. Regi modo forma sequen viz. praedict A. B. 20 l. legalis c. uterque praedictorum G. J. 10 l. confiâ—lis â—nita de seperalibus bonis catalliâ— terris tenementis sâ— seperalis fieri le vari ad opus usum dicti Dom. Regis hared successor suorum si defult fieret in performatione conditionis indors Condition for appearance for Felony or suspicion of Felony The Condition of the Recognizance is such That if the within bound A. B. do personally appear before his Majesties Justices of Gaol-delivery at the next general Gaol-delivery to be holden for the within named County of Kent then and there to answer to our Sovereign Lord the KING for and concerning the felonibus taking and stealing of c. or for suspicion of his felonious taking c. wherewithal he standeth charged before c. and to do and receive c. and do not depart the said Court without licence for the same then c. If it be to appear at Sessions say Do personally appear before his Majesties Justices assigned to keep his Peace in the within named County of K. at the next General Sessions of the Peace to be holden for the said County of T. in the County aforesaid then and there to answer c. If the Party thâ— is bound to appear on Surety for the Peace be so sick that he cannot appear the Justices in their discretion have forborn to certifie or record such Forfeiture or Default and that they have taken Sureties for the Peace of some Friends of his present in the Court till the next Sessions If the Husband be bound that he and his Wife shall appear at such a Sessions and that they shall keep the Peace in the mean time c. and at the day the Husband appears alone Qu. if the Recognizance be forfeited A Supplicavit out of Chancery directed to the Sheriff and Justices to bind F. and two others to the Good Behaviour the Sheriff returns that the two non sunt inventi and quoad F. that such a Recognizance was taken before the Justices and that he had broken the Good Behaviour and F. pleaded to Issue in Chancery the Record being sent into the Kings Bench per manus Dom. Cancellaris thereupon a Writ of Nisi Prius issued and found for the Defendant this Recognizance was not well certified into the Chancery for they who take the Recognizance ought to certifie it Cro. Jac. 669. Ford against the King If a Man find Sureties for the Peace before the Justices of the Peace in the County yet if the same Party come in B. R. and there make Oath that he was afraid he shall be hurt by the said Party he may have surety of the Peace there against the Party and a Supersedas to the Justices to discharge the Bond taken before them for the Peace and Behaviour Moor n. 126. Upon motion on Affidavit that he was bound to the Peace for Malice his Recognizance was discharged Stiles p. 364 Sir Tho. Revels Case It s the Course of the Court when any are bouâ—d over to appear in B. R. and in the mean time to keep the Peace or be of Good Behaviour the Cause is to be exprest in the Recognizance also when ever the Court binds any Man to the Peace or Good Behaviour it s always for a year 1 Keble Hill 16 and 17 Car. 2. B. R. Sandford versus Atkinson What is or amounts to a Breach or Forfeiture THE Surety of the Peace is not broken without Affray made or Battery bujusmodi 2 H. 7.2 b. Words which threaten a Battery of the Body may forfeit a Recognizance but not to call one Lyar Drunkard and to say I will make him a poor Kirton Moor n. 378. If he threaten to beat him to his Face it s a Forfeiture or if he threaten in his absence and afterwards lies in wait to beat him Keb. Inst 615. If he that is bound do but command or procure another to break the Peace upon any Man or to do any other unlawful Act against the Peace if it be done it s a Forfeiture of his Recognizance 7 H. 7.34 a. There is a Surety of the Peace and a Surety of the Good Behaviour the Surety of the Peace cannot be broken without some Act as an Affray or Battery or the like but the Surety de bono gestu consisteth chiefly in doing nothing that may be cause of the Breach of the Peace the word Lyar Drunkard c. are not Breaches nor entring his Close nor taking Goods What is a Breach of the Peace is a Breach of the Behaviour riding with War-like Weapons but that is not Law now or in Company with riotous Malefactors Cro. El. 86. k. 4 Inst 180 181. Kings Case In Sc. Fac. upon a Recognizance for the Good Behaviour taken in the Crown Office the Breach is assigned because he assaulted land bâ—t â—ne on the Way and he saith not vi aâ— and for this Cause after Verdict Judgment was stayeth Cro. Jac. 412. The King and Hutchings Scire Facias upon a Recognizance of the Good Behaviour Breach assigned was That he said to a Constable in executing his Office thou art a lying Rascal and to a Woman that she was a Whore and a Jade c. The Defendant pleaded not guilty and found for the Defendant though the manner of speaking may be good cause in discretion to bind one to his Good Behaviour yet one being bound words only which tend not to the Breach of Peace terrifying others or to sedition c. shall not be sufficient cause of Forfeiture Nota In this Case the Witnesses in the behalf of the King did not prove that these words were iâ— disturbance of the Execution of his Office Cro. Car. 498. The King versus Hayward Farther Considerations of Bonds in respect of Assignment Statute of Bankrupt and Forgery c. Assignments of Obligations Vide Creditors as to Statute of Bankrupcy IF a Man assign an Obligation to another for a precedent Debt due by him to the Assignee that is not Maintenance but if he assign it for a Consideration then given by way of Contract this is Maintenance Noy 53. Harvey versus â—man Alit in Case of the King 3 Lion 234. Scoth and Marsh Upon the Statute of 33 H. 8. cap. 39. the Case
211. To pay the Mony Fidel. 18. Cl. Man 3â—4 326. A Counter-Condition for performance of Covenants 1 Cl. guide 200. A Counter-Condition to save harmless from two Obligations Id. 230. A Condition to save harmless a Surety from a Bond of Arbitrement Id. 204. A Condition to save harmless a Surety from a Recognizance 3 Cl. guide 61. Condition of an Arbitration Bond. WIthout an Umpire Fidel. 19. Compl. Cl. 323. Cl. guide 1 part 223 232. To Arbitrators if not to an Umpire Idem 267. Covenant Bonds A Condition for the performance of one particular Covenant in an Indenture Fidel. 23. For Performance generally Id. 24. Compl. Clerk 328. A Condition to perform Covenants in a Lease and not to seek for a new Lease from the Chief Lord 2 Cl. guide 75. Conditions Special About Lands THat a man and his Wife at the next Copyhold-Court shall surrender and release their Interest Fidel. 21. If Mony be not paid at a Day then to surrender 1 Cl. guide 293. Bridg. Con. 190 233 234 236 265 378. For the making of better Assurance Fidel. 21. For quiet Enjoyment 1 Cl. G. 160. A Condition where a man hath purchased Lands which he intendeth shall be for the Joynture of his Wife that his Wife shall enjoy the same and that they be free from Incumbrances and that the Premisses shall be worth 60 l. per Annum â—ide 22. A Condition that where the Obligor hath sold to the Obligee three Acres which is in Lease for Ten years that the Obligor shall pay 30 s. to the Obligee yearly during the term Id. 23. A Condition that one shall enjoy a Parsonage-House c. free from Tithes and other Incumbrances Id. 26. That the Premisses shall continue free from Incumbrances done by him and that he and his Wife shall do further Assurance Fidel. 27. A Condition where two Brothers are joyntly seized of Lands that if one make a bargain for the sale of the Premisses and that the other shall receive 50 l. for his part that the other will joyn in the Assurance Id. ib. A Condition that whereas Lands are mortgaged that the Mortgageors are seised c. and that the Premisses shall be free from Incumbrances and to do further assurance if the Mony be not paid according to the Proviso Id. 38. A Condition upon Marriage to make a Joynture of 10 l. per Annum to his Wife within one year after Marriage or at his death free of Incumbrances Id. 29. That a man shall within two years assure Lands of 30 l. per Annum for his Wives Joynture or if he die before the time that then his Executors shall do the same or else the Executors shall within ten days after the death of the Obligor enter Bond with Sureties to the Wife for payment of 50 l. within one year after the death of the first Obligor Id. 32. For yielding up a possession Campl Cl. 316. That the Father shall not sell his Land from his eldest Son Id. 308. For the Truth of an hired Servant Compleat Clerk 317. To deliver Possession Id. ibid. That if the Conisors of a Fine being within Age shall reverse the Fine then to repay the marriage Mony Id. 318. That Land shall remain to the Obligors eldest Son Id. 329. That two shall make a Lease to two or three Tenants Id. 330. That a man shall not alien his House but to the Obligee he paying such a sum of Mony Id. ib. To deliver possession of an House Id. 321. To save Land from Incumbrances c. Id. 323. For enjoying of Land for a term Id. 324. To make an Estate in Land Id. 329. To deliver Evidence and perform Covenants upon payment of a sum of Mony to the Obligor Id. 332. For default of payment of Mony at a day to enter upon and hold a Field for certain years Id. 333. For payment of Rent and not committing Waste Id. ibid. To make an Estate in Feesimple by a day Id. 334. Not to claim Dower Id. ib. 2 Cl. g. 91. A Condition to make assurance of Lands upon Request 1 Cl. guide 158 161. To pay all such charges as the Tenant shall be at by reason of the payment of his Rent there being Controversie concerning the Title of the House Id. 226. A Condition for the surrender of Copyhold-Lands and to cause the Obligor to be admitted Tenant 1 Clerks Guide 159. For quiet enjoying a Manor according to assignment Id. 229. A Condition for passing a Fine Id. 160. That one shall not demise or alien sans Consent Id. 188. A Condition not to do any act to prejudice the Estate of the Obligor in a Lease Id. 193. A Condition to pay Rent during a Lease Parol and at the end to depart leaving the Goods and Housholdstuff mentioned c. Id. ib. A Condition where the Seller is bound that the Land is free from Incumbrances Id. 229. A Condition for renewing a Lease when the Lessor comes to the Age of 21 years 2 Cl. guide 96. A Condition to gather Rents and yield account thereof Id. 82. A Condition to make true account of ones Bayliffship Id. 84. To pay a sum of Mony within three days after Request if the Obligee may not enjoy a Mesuage Id. 85. Conditions reciting an absolute Bargain and Sale made to one for the indempnity of a Bond if the Mony be paid on the Bond the Grantee to reassure Id. 149. Conditions reciting the Surrender of Lands upon Condition that if the Mony be not paid according to the Condition the Obligee may enjoy the Lands 2 Cl. guide 141. Conditions reciting the release of an Annuity that it is free from former engagements Id. 152. To pay Rent Quarterly for certain Rooms Id. 155. To surrender Lands to uses Id. ib. A Condition to permit the Obligee to receive Rents c. to his own use and not to discharge a former Agreement made between A. W. of the one part and the Obligor and Obligee of the other part Id. 163. To assure the moiety of such Lands as shall be recovered by Law Id. 165. A Condition not to sell Lands had in Marriage 3 Cl. guide 307. A Condition that the Lessee shall not carry away the Wainscot or Cupboards c. Id. 310. Cl. Vade mecum 386. A Condition to pay Rent reserved on a Lease according to the Covenant 3 Cl. guide 161. Conditions to settle fettle Lands of such a value Bridgman's Convey 227. Conditions to free the Lands from all Incumbrances by a prefix'd time Id. 11. Conditions to Seal a Lease by a day according to a draught thereof already made Cl. Vade mec 398. To procure Lands to be passed in Fee-simple from his Majesty and the Patentee to convey it to the Obligee by a Day he then paying the Patentee a sum of Mony Cl. Vade mecum 399. Conditions to enjoy Lands discharged of Rents Hern. 308. Conditions that the Heir shall make no claim 2 Cl. guide 238. To assure a Sum of