Demur ' general al bar Recovery Judgment on Suits en auter Court pleaded in Bar. DEfend ' placitat Suit en Chancery pro eodem debito Placita gen special 350. Un former Recovery pleaded sur mesme l'Obligation Hern. 298. 1 Sanders 86. Pit and Knight Utlagary pleaded in bar Tomps p. 206. Placit gen spec 344. Co. Entr. 159. Quod quer ' est recusant Convict Tompson 185. Letters de License del Plaintiff auters Creditors pleaded monstre coment sue en le Marshals Court Tomps 169. Plea quod il ne fecit Obligation al L. prie que le Plaintiff may be examined Ra. Ent. 179. b. Def. placitat quod Estranger sigillavit deliberavit billam quer ' in exonerationem scripti Et quod quer ' acceptavit billam in satisfactione inde Rob. Ent. pag. 234 235. Several Bars NOn est factum al un Obligation Conditions performed al auter Ra. Entr. 182. Conditions performed al Obligation Non est factum ad bill per legem diem al Account Id. 170. Asht 191. Ad Narration ' sur Oblig ' versus Administratorem Administratricis Quoad partem Def. placitat billam acquietancie quoad residue plene Administravit Repl ' puis oyer d'Acquittance quer ' dicit quod non est factum suum Et al residue dic ' quod Def. ad Assets Brownl Lat. 173 174. Ad Narr ' pro solutione denar ' ad 2 dies super 2 Obligations Quoad 1 Oblig ' Def. placitat conditions performed Quoad 2 dicit quod ipse deliberavit granum in satisfactione Rob. Ent. 196. Rejo Bar Judgment AD partem debiti per Obligation bar per Acquittance Non informatus al residue Ra. Ent. 180. Ad Obligation non informatus ad denar ' mutuat ' nil debet per Patriam 3 Brownl 136. Det sur several Obligations un pur performance des Covenants les deux auters pur payment del Mony Bar al 1. per performance and to the two others he pleads Conditions performed Winch. Ent. p. 281. Judicia MOdus Intr. 211 213 222. Sur Confession Sanders p. 191. Mortlack and Charlton Sur non est factum pleaded Verdict Entry Judgment Modus Int. 209. Judic ' pro quer ' sur Demur ' quoad part per 1 Obligation Def. relicto placito de non est factum ad aliam Obligationem cognovit actionem Jud. 162. Non informatus Ra. Ent. 173. Co. Litt. 156. Modus Intr. 207. Nil dicit Wilk 277. 1 Brownl 90 98. Ash 291. Sur default Def. post li. lo. Ra. Ent. 173. Simile post Release pleaded Id. ibid. Cognovit Action ' Id. ibid. bis Cognovit Action ' al minas sur Obligation Ra. Ent. 161. Jud. 21. Ash 251. Ra. Entr. 171. Cogn ' Action ' sur Conditions performed Jud. 212. Mod. Intr. 211. Satisfaction confess'd per Attorney per Special Warrants Ra. Ent. 163. Judgment en Londres pur parcel de Debt sur enquiry de debito solonque le Custome pleaded en bar a ceo Vidian 166. A TABLE OF REFERENCES TO The several sorts of Special Conditions c. in all the Books of Presidents under their proper Heads Bills A Bill with Penalty and for Mony to be paid at several days Fidel. 15. Obligation SIngle Compleat Clerk 312. Double Id. ibid. Treble Id. ibid. Sheriffs Bond. PUr appearance en C. B. Fidel. 17. in B. R. A Condition of a Bond to the High-sheriff upon the taking of a Replevin Id. ibid. Compl. Clerk 315. Condition of a Bond taken by the Sheriff upon a Supersedeas of Outlawry Compl. Clerk ib. Bond taken by the Sheriff of London for ones Appearance Cl. Vade meâ—um 540. Conditions for the payment of Mony AT several days Fidel. 17. Compl. Cl. 313. Clerks Guide 1st Part 33. For the payment of all such Expences the party shall be put to Fidel. 9. Condition where two are bound to two Comp. Cl. 328. Where three or more are bound Idem 327. A Condition to pay Mony within 14 days after if the parties bound in an Obligation pay it not at the day Cl. Guide 1 Part 58. A Condition to pay a sum of Mony to Children at their several Ages according to the Will by which it was given the Bond being made to the Executors Idem 6â— 1st part A Condition to pay a sum of Mony to a Child when he comes to age and in the mean time to find it and bring it up Cl. guide 1st Part. 62. A Condition to pay a sum of Mony Quarterly Id. 161. 1st Part. A Condition to pay a sum of Mony at a day and then to put in another Surety for payment of another sum at a day then following Id. 163. A Condition for payment of Mony if a man be Non suited Id. 165. A Condition to pay Mony at the day of Marriage or day of death Id. 85. Or at a time after Cl. Vade m. 632. A Condition for payment of Mony yearly with a Clause to find new Sureties upon the death of any of the former Cl. Guide 189. 1st Part. A Condition to pay Mony during life Idem 191. A Condition to pay Mony at the expiration of an Apprenticeship Id. 199. A Condition to pay Mony weekly Id. 2 Part 74. A Condition to pay a sum and three years payment given Id ibid. A Condition to pay a sum of Mony at ones Return beyond Sea Id. 78. A Condition to pay Use for Orphanage Mony belonging to Orphans Id. 94 130. A Condition for Mony given by a Will to be lent gratis Id. 102. A Condition to pay Mony according to a Proviso in a Bill of Sale Id. 1 Part 106. A Condition to pay a yearly Sum for a Wives Joynture during her life Id. 2 Part 107. A Condition where the Obligee hath a sum of Mony owing by one which is agreed to be paid to a Creditor of the Obligors the Obligor is bound to repay within ten days after notice of the Receipt Idem 110. A Condition where a Bond is assigned that if the Obligors in the assigned Bond do not pay then the Obligor in this Bond to pay Id. 111. A Condition where Purchase-Mony is to be paid at two payments if default be made in the first the whole with allowance to be paid at the second Id. 114. A Condition that the Obligor shall pay within three Months if default be made by another Id. 115. A Condition that if the Obligee do not receive the Sum of c. according to a Letter of Attorney then the Obligor to pay the said Sum Id. 116. A Condition for payment of Mony within ten days after delivery and assurance of Land Id. 117. A Condition for payment of all such Sums as one lately deceased did owe to any person whatsoever Id. 120. A Condition to pay Childrens Portions and shares of their deceased Fathers Estates Id. 171. Condition of Counterbond TO save harmless and cancel the Obliligation Fidel. 17 18. 3 Cl. Guide 158
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
of the Sea excepted that the Defendant pay in 12 Calendar Months or if the the Ship be lost before the return or payment to be void the Defendant pleads navis amissa fuit the Plaintiff demurs for the meaning of this Bill of Adventure is a loss by dangers of the Sea Per Hales its sufficient for the Defendant to pursue the words of the Bond and the Plaintiff should have replied the Ship was lost by the Defendants default 2 Keble 768. Boddington and Wotton A Condition to pay Mony yearly during Life A Condition to pay yearly 40 l. to S. during his Life at the Feasts of St. Michael and the Annuntiation or within 30 days after every of the said Feasts S. dies within the 30 days this shall discharge the payment due at the Feast before his death Cro El. p. 380. Prices Case A Condition to pay yearly and every year to Thomas and Dorothy his Wife during their two Lives then c. the Husband dies the payment ceaseth the Interest is not in the cesty que vies the Husband and Wife are Strangers and the Interest of the Bond is in the Obligee Mod. Rep. p. 187. Slater and Carew In respect of the thing it self to be done A Condition to perform Covenants generally IF a Man Lease a Mannor by Indenture except such a parcel of Land and in the Indenture there are divers Covenants to be performed on the part of the Lessee and the Lessee binds himself in an Obligation to perform all Covenants and Agreements contained in one pair of Indentures and names the said Indentures and after the Lessee enters into the Land excepted this is no breach of the Condition for the Land excepted is not leased and it is so as if it had been named Dame Russel and Gulwel 1 Rolls Abr. Tit. Condition f. 431. If one makes a Lease for years of a Mannor excepting a Close rendring Rent and the Lessee is bound to perform all Grants Covenants and Agreements contenta expressa aut recitata in the Indenture if he disturb the Lessor in the occupation of the Close excepted he has forfeited the Obligation for when he excepts the Close the other is content with this and that the Lessor shall occupy this and then this is the Agreement and the said word contenta expressa recitata every of them go to the exception as well as to the residue Plow fol. 67. in Dive and Manninghams Case If a Man let for years rendring Rent payable payable at Michaelmas and Lady-day on Condition that if he does not pay at the said Feast or within 14 days after then to re-enter and the Lessee binds himself in an Obligation with Condition to perform the Covenants and Agreements of the said Lease the Lessee pays not the Rent at the Feast but within the 14. days yet the Condition is forfeited for that the Condition in the Lease is not parcel of the Reservation 1 Rolls Abr. Tit. Cond fol. 431. Middleton and Ratcliff The Condition of a Bond for performance of Covenants in an Indenture doth estop to say there is no such Indenture but it doth not estop to say there are no Covenants Mod. Rep. 15. Holloways Case Where an Action of Debt is brought upon a Bond to perform Covenants in a Deed and the Defendant cannot plead Covenants performed without the Deed because the Plaintiff hath the original Deed and perhaps the Defendant took not a counter-part of it the Court useth to grant Imparlances till the Plaintiff bring in the Deed and upon Evidence if it be proved that the other Party hath the Deed we admit Copies to be given in Evidence but in Qu. Imp. the Grant of the Advowson must be shewed Mod. Rep. p. 266. If I am bound to perform Covenants and the Covenants are in the affirmative if the performance of them be by Matter of Fact I may recite the Condition and plead generally that I have performed all the Covenants and shall not shew especially the performance of them as if I am bound to enfeoff the Obligee of c. and also that I shall give to him an Horse in Debt brought upon the Obligation I shall shew the Condition and shall say perimplevi omnes Conventiones and shall not shew the special matter of the performance as that I gave him an Horse at such a place c. but if the Condition be in the affirmative and the performance of this may be tryed by Matter of Record as if I am bound that I shall be non-suit in such an Action there I shall shew the performance of this especially but if the Condition be in the negative as that I shall not go to London before such a day I must answer to this in the negative 13 H. 7.19 b. 10 H. 7.12 b. vide plus A Condition to perform all Covenants comprised in such Indenture the Defendant pleads he had performed all the Covenants without shewing how per Cur. as to all the Covenants which are to be performed in the affirmative the Plea is good but where the Plaintiff is to be a Party to the performance as if I am bound to enfeoff you of two Acres in D. which you shall assign here I must shew how also where words are in the disjunctive it ought to be shewed specially and a Clause in the negative must be answered in the negative 16 H. 7.11 a. vide 26 H. 8.5 cont as to general performance pleaded Upon Oyer of the Condition the Defendant pleads Covenants performed and doth not set forth the Indenture which per Cur. upon Demurrer he ought and if he have it not he may move the Court and have a Copy thereof Per Twisden it hath been vexata quaestio heretofore who should set it forth 1 Keble 127. Walker versus Gibson 2 Keble 80. Anonymus The Court on an Affidavit by the Attorny that the Bonds are for performance of Covenants will order the Defendant to deliver a Copy of the Covenants to the Plaintiff that he may reply there are none broken but not else but by consent 1 Keble 653. Paschal and Jekel In Action of Debt the Defendant pleaded it was for performance of Covenants and that he hath performed all not shewing forth the Indenture to which the Plaintiff demurred the Court agreed he must set it forth 1 Keble p. 415. Lewis and Bull. Det sur Bond the Defendant pleads the Condition is to perform Covenants contained in a Pair of Indentures in which are contained divers Covenants and recites them which he had performed the Plaintiff demurs because he said not when he pleaded the Indenture hic in Curia prolat ' and Judgment pro Quer. and per Coke he might take advantage of this upon the general Demurrer without shewing cause for it is matter of substance 1 Rolls Rep. Duport and Wildgoose mesme Case 2 Bulstr 259. If in Debt sur Obligation with Condition for performance of Covenants in an Indenture the Defendant pleads performance generally this
Mony in lieu of a Joynture 3 Cl. g. 308. To save harmless where one attorns Tenant with a Covenant to grant a Lease when the Premisses are setled in the Obligee Id. 157. To procure a Lease for years in consideration of a Sum of Mony given Cl. V. m. 387. To repay mony on misliking of a Bargain Id. 396. Other Special Conditions TO maintain one for life Fidel. 24. If a mans Wife shall out-live her Husband not having Issue of her Body and that the Husband shall have received 300 l. her Portion that the Wife shall make her Will of 100 l. and that the Executor of the Baron shall pay it according to the Will Id. 25. A Condition that one nor his Family shall become chargeable to a Town Id. 26. Sh. Presid c. 4. Sect. 27. A Condition where a man is to marry a Woman Widow who was Executor to her former Husband that the party which is to marry shall pay 100 l. to one of her Children according to the Will of her former Husband Fidel. 23. A Condition to pay 200 l. within two Months after one shall use the Trade of a Barber Id. 35. That whereas three are bound to J. for several Sums of Mony if any of the Obligors die before the same shall be due that the survivor will upon request become bound with new Sureties for such of the Mony as shall be then due Id. 36. That whereas one as Factor to two men takes Goods to sell and after sale of them doth account with one of the parties and with the Assignee of the other and payeth the Mony remaining of the Sale to the one Partner and to the Assignee of the other who makes several Acquittances to the Factor that they will free him from all Actions c. to be brought against him by the other Id. 37. Cl. Vad. m. 530. 1 Cl. guide 17 186. 2d Part 188. A Condition for an Apprentices Truth and to restore what shall appear on Proof imbezelled Fidel. 30. Shep. Presid cap. 4. sect 17. If the Obligee deliver to the Obligor a true Note of such Mony as he owes for Wares and to whom the same is owing that the Obligors will pay all such Sums Fidel. 33. That whereas one is lawfully assigned Guardian to an Infant by the Commissary for the recovering and receiving of a portion of Goods and hath received of the Register 5 l. Decreed by the Commissary to the Infant that at the age of the Infant the Guardian shall pay to the Infant the 5 l. and shall save and keep harmless the Bishop Commissary and Register Idem 40. A Condition to be entred in Chancery upon the taking out a Commission of Bankrupcy Id. 34. This Bond to be entred in to the Chancellor A Condition that whereas an Administrator hath delived into the hands of the Guardian of an Infant 800 l. that the Infant at her full age shall give an Acquittance to the Admistrator c. Id. 34. Bond from the Creditor to save the Commissioners harmless Id. 171. Condition not to release a Statute Compleat Cl. 314. Not to revoke a Letter of Attorny made by the Obligor Id. ib. Bond for the good Behaviour Id. 315. Not to sue for Lands or Goods Id. 316. Not to claim a Child's part Id. ib. For the Truth of an hired Servant Compleat Clerk 317. For delivery of Wheat Id. 318. That one shall account for and pay the Proceed of Mony lent to Trade with Idem 319. Not to release a Letter of Attorney Id. ibid. That a man shall leave to his Wife at his death so many Goods Id. 320. Not to impeach an Extent Id. ib. To deliver Writings up upon payment of a sum of Mony Id. ib. That the Obligor shall justifie such Actions as the Obligee shall commence Idem 322. That a Bayliff of an Hundred shall duly execute his Office Id. 323. A Condition in case of Divorce or Separation where the man and wives Friends are bound for not intermedling one with another Id. 327. That a Woman Divorced shall not make claim to her Husbands Lands or Goods Id. ibid. To make a General Release Id. 330. To procure a Surety to seal a Bond Idem 331. To redeem a Pawn by a day or lose it Id. 331. For payment of Mony to Orphans Idem 332. To save harmless Shepherds Presid c. 4. sect 17. To keep a Child Id. c. 4. s 17. To make a Joynture Id. ib. To lay out a Marriage-Portion Idem cap. 3. sect 40. To repay part of it if she dye Id. ib. To give Dyet Id. ib. c. 4. s 17. To leave so much to his Wife Idem cap. 3. sect 40. That his Wife shall have leave to make a Will Id. ib. That if he sell her Land he shall buy as much again Id. ib. That if Land be not of such a Value it shall be made up Id. ib. To give so much by his Will Id. ib. To perform a Will Id. c. 3. To procure a Release Id. c. 3. s 39. To keep or breed up a Child Id. c. 3. sect 36 40. A Condition to make an Apprentice free of the City of London at the end of his Apprenticeship 1 Cl. guide 34. A Condition for the Truth of an Apprentice and to restore the value of all such Goods as by Proof shall appear he hath imbezelled Id. 2â—4 A Condition to ackowledge satisfaction on a Judgment 2 Cl. g. 90. A Condition to find one his Dyet by the year 1 Cl. g. 158. A Condition to discharge the Church warden and Parishioners of a Bastard Child 1 Clerks guide 158. To save harmless from a Recognizance taken for ones Appearance Id. 164. To save one harmless for the Bailing of one in two several Actions Id. ib. A Condition concerning Marriage Idem 16. To deliver Hay and Oats at a day Idem 161. from Legacies Id. 189. To justifie all such Actions as shall be commenced by reason of a Letter of Attorny Id. 197. Condition to save harmless from a Letter of Attorny Id. 199. Condition not to molest or sue for any Matter or Cause before past â— Clerks guide 86. To seal a Counter-part by a day Cl. guide 190. To deliver an Obligation by a day Idem 191. Condition where Mony is given by a Will to a Wife and her Children and the Mony being paid by the Executors to the Husband to be employed for their benefit the Husband is bound to employ it well Id. 194. A Condition to save harmless an Executor he not medling with the Executorship Id. 195. A Condition to discharge an Executor from an Orphans Portion in London being received without consent 1 Cl. g. 196. To justifie all such Actions as shall be commenced by reason of the Assignment of a Bill Obligatory Id. 197. â—ondition for the Truth of an hired Servant Id. ib. Condition to discharge Executors from the payment of Legacies to Non-ages Idem 198. To save harmless from a Letter of Attorny Id.
Vide tit Condition Exposition of Conditions 110 Execution on Statutes and Bonds 262 265 410 Actions brought by Executors on Obligations 355 Summons and Severance 359 Release by Infant Executor ibid. Actions brought on Bonds against Executors or Administrators 361 F. FEme Covert makes a Bond how far binds 13 Bonds made to Baron and Feme 18 To Feme Covert ibid. To Feme Sole 19 Actions on Bonds by Baron and Feme 357 Against Baron and Feme 363 Condition to acknowledge a Fine 184 185 186 187 Who to do the first Act 352 Bond when said to be forfeited Vid. sparsim per tot 99 c. 142 179 Forgery of Bonds 345 Foreign Plea 443 Foreign Attachment pleaded 445 Fraudulent Deed need not be pleaded but may be given in Evidence 295 G. OF Bonds given for Gaming Mony 53 Act of God Vid. supra H. DEbt on Bond against the Heir 292 Riens per descent 293 What shall be Assets ibid. Declarations 297 Judgment ibid. I. JEofail 115 Impossibility excuse a Condition 97 98 Condition impossible the Effect of it ibid. Pleas after Imparlance Vid. tit Pleadings Infants entring into Bond acknowledging Statutes Recognisances 14 259 Insensible Conditions 100 Bonds joint or several 32 Actions by joint Obligees 356 Actions against joint Obligors 364 Joyining Issue on payment 461 On a Collateral point 462 Issue Tryal on Bonds Covenants 205 Of pleading to the Jurisdiction 449 Judgment on Bonds sued 465 K. BOnd made to the King Vid. Recognisance Condition to observe the order of the Kings Counsel 240 Assignment of Debts on Bond to the King 318 319 L. OF Bonds on Covenants in a void Lease 195 Condition to accept a Lease 232 Conditions concerning Legacies 239 Conditions about Licence 241 Condition to pay during Life 140 M. BOnd void for Maintenance 47 48 What is Maintenance and what not 317 Condition to pay Mony upon Marriage 131 Condition to convey Land upon Marriage 235 Bod void by Menass 107 Misnomer or Variance in the Names Additions 380 Monstre des faits 141 195 303 381 Bond of Covenants in a Mortgage 196 N. NAme of Baptism Variance between the Bond and Declaration 17 Variance in Names Additions 378 One Non compos mentis entring into Bond 16 One may not plead he was not sane memory at the time of his Sealing the Bond Vid. Pleadings Non est factum where pleaded to a Bond 36 430 c. Vid. tit Pleadings Of Non-Residence and of Conditions against the Stat. of 13 Eliz. c. 10.14 Eliz. c. 11. 58 Notice where requisite and where not in the performance of a Condition 134 135 166 218 224 308 347 351 O. THE Nature of an Obligation 1 Faux Latin in Obligations or incongruous 3 The Frame and wording of Obligations and Bills Obligatory 13 What persons may or may not make Obligations ibid. To whom Obligations may he made 18 Obligations joint or several 32 By what Names bound 16 Of sealing and delivery of Obligations 22 27 Bond to Baron and Feme to Feme covert to Feme sole 18 19 Bond to alien 19 Bond to a Body Corporate ibid. Bond against the Heir Vid. tit Heir Bonds of Arbitrament 301 Bonds of Apprentices 305 Bonds for the Good Behaviour 509 Assignments of Obligations 317 Forgery of Bonds 345 Detinue of Bonds 346 Suits on Obligations 355 Vid. Suits Bond where suable 368 Oyer 381 Outlawry pleaded 441 How and by what means an Obligation good in its Creation may be defeated extinct or discharged by matter ex post facto in Deed or Law 473 478 479 A discharge of a Condition in part is a discharge of the whole 479 Of buying Offices 5â— P. Payment PErsons to whom Performance or Payment to be made or done 110 Of Payment of Mony on a Bond in general 112 What Persons are bound to pay or do by the Condition ibid. Of Payment by Collateral satisfaction 113 Of Payment without Acquittance pleaded to a single Bill 31 Payment how to be taken 112 Time of Payment amongst Merchants 119 Place of Payment when a Place is limited 126 455 When no Place is limited 128 Time of Payment Vid. tit Time Of Payment at several days Of Performance of Conditions 122 c. Et sparsim per tot Performance on Bonds of Covenants where to be pleaded specially and where generally 194 Vid. tit Bonds of Covenants Payment of a lesser Sum in satisfaction 408 409 Place of Payment mentioned in the Condition and Venue 455 Joining Issue on Payment or not 461 What things will excuse the Performance of a Condition 353 Pleadings Where Performance generally may be pleaded and where it must be shewed specially and how 392 Of Pleading non damnificatus 209 395 In many cases the Law allows general Pleading to avoid Prolixity 34 396 Of Certainty in Pleading 397 Regularly it is good to pursue the Words of the Condition and yet he ought to plead the Certainty of time and place and manner of performance 398 In Pleading negatively he ought to traverse all the Condition 399 Where a certain duty accrews by the Deed at the beginning this ought to be avoided by a matter of as high a nature 400 Sometimes matter en fait shall avoid an Obligation ibid. A special Plea in Bar it always to be answered with a special Replication in the point 401 The Replication ought to contain sufficient Cause of Action and sufficient Breach of the Condition or else the Plaintiff shall not have Judgment though the Issue be found for him 401 Pleas in Abatement Vid. Abatement Pleas after Imparlance what are good and what not 404 Concord Acceptance pleaded Vid. Concord Payment of a lesser Sum how to be pleaded 408 Collateral things or satisfaction pleaded in performance or for Payment where good or not 410 Payment pleaded and parcel paid 413 By command of another 415 Where mistake in pleading the Sum or the time is aided and where not ibid. Release pleaded Vid. tit Release Tender uncore prist pleaded 425 In what Cases non est factum is a good Plea and in what Cases and where a special non est factum as in Cases of Alteration Rasure Seals broken c. and Delivery as Escrow 430 c. 439 Estopples in Pleading Vid. tit Estoppel Plea per Duress Vid. tit Duress Plea per Heir to the Bond of the Ancestor Vid. supra Actions of Debt against the Heir Outlawry pleaded 441 Attainder of himself pleaded not good 442 Defendant pleads he was non sane memory no Plea 443 Recusant convict pleaded ibid. Peerage pleaded ibid. Of Foreign Pleas ibid. Foreign Attachment pleaded 445 Of pleading to the Jurisdiction 449 Recovery pleaded in Bar in another Court and against another person 450 Bond to be a true Prisoner for Fees 88 Condition to deliver Possession 228 Pleadings on Scire Fac. against the Bail 277 Condition to satisfie embezilled Goods after due Proof made 306 How Proof to be made 307 Pleadings on Sheriffs Bonds 80 R. OF Rasure in Obligations and Conditions 206 431
be presented so that he would resign when the Son of J. was qualified Whereupon the Defendant entred into a Bond of 1000 Marks on Condition having first recited the Agreement that if the Defendant within three Months after request should absolutely resign the said Benefice that then c. In Debt on this Bond the Defendant pleads non requisivit which was found against him And in Arrest of Judgment it was moved that this Bond was made on Simoniacal Contract and so void But the Court gave Judgment for the Plaintiff 1. Because there was no Averment of the Simony 2. That it was not material as to the Bond because that Statute doth not make the Bond or Contract void but only the Presentation The sense of the Court in that Case was that in truth if a Man be preparing a Son for the Clergy and have a Living in his disposal which falls void before his Son be ready he may lawfully take of such person as he shall present a Bond to resign when his Son is become capable of such Living But if a Patron take a Bond absolutely to resign upon Request without any such cause as the Presentment of a Son or to avoid Pluralities or Non-Residence or such reasonable cause but only to a corrupt end to exact Mony by this Bond from the Incumbent or attempt it tho the Bond may be good against the Obligor yet it makes the Church become void and gives the Presentation to the King It seems in this Case if Simony had been averred it would have been left to a Jury to have adjudged what the intention of the corrupt Patron was Crook Trin. 8 Jac. 248 274. John and Lawrens Sir Simon Degg p. 54 55 56. Such a Condition was in Wood and Babington's Case to resign into the hands of the Bishop of London Upon Oyer of this Bond and Condition the Defendant demurred Judgment pro Querente But per Cur. If the Defendant had averred that the Obligation had been made with intent to exact Mony make a Lease c. which in it self had been Simony then it might have been a Question whether this Bond had been good or not but upon this Demurrer it doth not appear there was any Simoniacal Contract and such Bonds might be for good and lawful ends ut supra Crook Car. 180. A Condition to resign on Request which was If Jo. Watson do and shall upon the first of Octob. next or before if the said William Baker at the Parsonage-House of Cowley shall request the same and before John Watson shall take another Benefice in due manner resign the said Rectory Parsonage or Benefice of Cowley aforesaid unto the Bishop or Ordinary of the Diocess whereby the Rectory may become void and the said William Baker may lawfully present to the same then this Obligation to be void The Defendant after Oyer pleads Resignation the Plaintiff replies he did not resign Et hoc petit c. The Defendant demurs for that the Condition is void Per Cur. it hath been above a dozen times adjudged that the Condition is good Quaere if the Resignation shall be tryed per pais or by Certificate 2 Keb. 446. Siderfin p. 387. Baker and Watson M. 20 Car. 2. B. R. In Debt on Bond for payment of Mony at a day certain The Defendant pleads it was made upon a Simoniacal Contract for the Presentation to a Benefice c. per Cur. it is no Plea because it was averred by matter debors and appeared not within the Deed and an Averment shall not be that it was paid for other causes than the Obligation expresseth More n. 729. Noy p. 72. Gregory and Older The Condition was if Web the Patron presented the Defendant and if the Defendant continued Incumbent for a year and after the year at all times within three Months after Notice and Request was ready to resign and did resign the Benefice to the Ordinary to be presented thereto again by Web and should not before resign that then c. The Defendant pleads Stat. 13 14 Eliz. and that after he was inducted he made a Lease to the Plaintiff of the Benefice for 21 years and averred the Obligation was made for enjoying the Land by Lease The Plaintiff demurs Per Cur. the Plea was good but the Averment not sufficient Judgment pro Quaer More n. 835. Web and Hargrave Against Stat. 13 Eliz. c. 20. 14 Eliz. c. 11. Of Non-Residence NO Lease to be made of any Benefice or Ecclesiastical Promotion or any part thereof and not being impropriated shall endure any longer than while the Lessor shall be ordinarily resident and serving the Cure of such Benefice without absence above 80 days in any one year And all Bonds and Covenants for suffering any such Parson to enjoy any such Benefice with Cure shall be void 13 Eliz. c. 20. 14 Eliz. c. 11. either by Parson or Curate the Lease was made to the Curate who leaseth over Qu. If the absence of the Parson shall make the Lease void 1 Leon. p. 100. St. John and Petit's Case Upon the Statute 13 Eliz. of Leases made by Parsons that upon Non-Residence for 80 days the Lease shall be void this Statute voids Bonds for Non-Residence If the Condition be that after Institution and Induction he shall at all times after be ordinarily resident and serve the Cure without being absent 80 days during any one year that he shall be Parson of the said Church this is a good Condition without Averment taken to be for a Simoniacal purpose 1 Rolls Abr. 417. Cary and Yeo. The Condition was that if the Defendant be not absent 80 days from his Benefice nor resign without the assent of his Patron then c. The Defendant pleads Stat. 13 Eliz. That all Leases of Parsons made of their Benefices where they are absent 80 days ultra and all Obligations for enjoying them shall be void and saith he was absent by the space of 80 days and saith not ultra it was held an incurable fault in the Plea Cro. Eliz. p. 88. Gosnal and Kindlemarsh Such another Case in Crook Eliz. p. 490 Earl of Lincoln versus Hoskins Such a Plea was naught 1. The Statute was misrecited tam diu where the words are tam cito 2. Because it is not alledged that he was absent for otherwise neither Lease nor Bond are void Against Statutes of Usury 13 Eliz. c. 8. 21 Jac. 12 Car. 2. c. 13. How and when such Obligations become void or not and the Pleadings thereon IF the Contract be not usurious it shall not be made Usury by mater ex post facto A Bond for 60 l. and gave Bond to pay it and 6 l. Interest at the end of the year and before the end of the year the Obligor pays 6 l. for Interest it is not Usury 1 Bulstr 17. Anonymus A Condition to pay 20 l. per annum during Life it is no Usury but an absolute Bargain had there been any provision
l. the Obligation is forfeited 36 H. 6.9 b. So if the Condition be that if the Obligor do not pay to the Obligee at such a day 10 l. then the Obligation being 100 l. shall be void this is a good Condition and the Obligor may say in an Action on the Obligation that he did not pay the 10 l. and so avoid the Obligation for though the intent was not so yet the words were so and it ought to be adjudged upon the words 39 H. 6.10 cited 1 Rolls Abr. 419. A Condition if the within bounden J. B. shall happen to dye without Issue of his Body that then if the said J. B. by his last Will or otherwise in writing in his life time shall lawfully assure c. Per Dodderige this is repugnant and impossible he ought to dye without Issue first and then make the Conveyance but three Judges contra The Condition being made for the Benefit of the Obligor shall have Construction according to the intendment of the Parties and the intention was that a Conveyance shall be made by the Obligor in his Life by Will or otherwise so that they shall remain and be assured to c. Jones Rep. p. 180. Eaton and Laughter The Condition was if the Defendant pay the Plaintiff 2 s. per Week until the full Sum of 7 l. 10 s. be paid scilioet on every Saturday and if he fail of payment at any one day that then the Bond to be void The Defendant pleads he did not pay at such a day the Plaintiff demurs Per Cur. the Condition is repugnant and void and the Obligation single Siderfin H. 14 15 Car. 2. pl. 14. Vernon and Alsop Vid. Siderfin 456. Maleverer and Hawksby contra 1 Keb. 356 415 451. Vernon's Case A Condition impossible What shall be said a Condition impossible and the Effect of it IF the Condition of an Obligation be that the Obligor shall assign to the Obligee a Commission of Bankrupsy this is an impossible Condition and therefore void and the Obligation single for it is impossible to assign the Commission 1 Rolls Abr. p. 419. Street and Daniel If a Condition be quod debet pluere cras this is a good Condition for he hath taken it upon him at his peril and it is not impossible in it self 22 E. 4.26 If a Condition be that the Obligor shall go from St. Peter's Church in Westminster to St. Peter's Church in Rome within three hours this is impossible and void Co. Lit. 206. b. If the Condition be to save harmless the Obligee against a Stranger of an Obligation in which the Obligee stood bound to the Obligor this is a good Condition for although by no possibility the Stranger may have to do with this yet if he will save harmless against him it is within the Condition for it may be he had some fear of damage by him Quaere de hoc 1 Rolls Abr. p. 420. Where the Condition is impossible the Bond is single contrary where a man is charged by Act in Law 2 Leon. 189. in Wood's Case If the Condition of an Obligation or Feoffment be impossible at the time of the making it the Condition is void and the Obligation single because the Condition is subsequent but if a Condition precedent be impossible at the time of the making there all is void because nothing passeth before the Condition performed Co. Lit. 206. 1 Rolls Abr. 420. Casualties that hinder performance shall not excuse as Floods hindring appearance or being imprisoned Lit. Rep. 88 97 115. Melvin's Case 41 E. 3. double pl. 77. 2 E. 4.2 The Effect of a Condition impossible and how it shall excuse IF the Condition of a Bond or Recognisance c. be impossible at the time of the making the Condition the Obligation c. is good and single as a Condition to go to Rome in three hours the Condition is void and the Obligation is good So if I am bound in an Obligation with a Condition to stand to the award of J. S. provided that the Award be made before the 10th day of May next and provided I have warning 15 days before the 10th day of May and this Obligation is made the 9th day of May this is a void Condition So the Condition is that I will be non-suited in such an Action or assure such a piece of ground when in truth there is no such Action or piece of ground this Condition is void and the Obligation remains single and good But in all Cases when the thing to be done by the Condition of a Bond or Recognizance c. is possible at the time of the making the Condition and before the same can be performed the Condition becomes impossible by the Act of God or of the Law or of the Obligee in this case the Obligation is saved and the Obligation and Condition are both become void 1. By the Act of God If a Man be bound with a Condition that he shall appear the next Term in such a Court and before the day the Obligor dieth hereby the Obligation is saved Cro. Eliz. p. 277. Trop and Bedingfield Pleaded before the said Feast J. dies Judgment si actio a good Plea the Condition is discharged and the Obligation void 15 H. 7.2.13 If J. H. had been bound with him then he must have done it Qu. So the Act of God may discharge the performance of the Condition If he that is let to Mainprise be dead before the day his death excuseth the Mainpernors Water Plaintiff Perry and Spring Defendants 1 Rols Abr. p. 449. If A. recovers det vers B. en Bank and B. brought a Writ of Error and found Mainpernors to prosecute with Effect and after dies before the Return of the Writ this Act of God shall excuse the Mainpernors 1 Rolls Abr. tit Condition p. 450. Middleton and Twine If a Man becomes Bail for another in an Action and after the Plaintiff recovers against the principal and the Capias against him is returned non est inventus and this is filed and after the principal dyes before any Scire Fac. sued out against the Bail yet this shall not excuse the Bail otherwise if he had died before the Capias returned and filed 1 Rolls Abr. tit Condition p. 450. Timberly and Booth and Calf and Davies and Hobbes and Doncaster A Condition to pay yearly 40 l. during the Life of c. at the Feast of St. Michael and the Annunciation or within 30 days after every of the said Feasts the Wife dyes within the 30 days this shall discharge the payment due at the Feast before her death Crook Eliz. p. 380. Price and Williams If a Condition consists of two parts in the disjunctive in which the party had Election which of them to perform and both are possible at the time of making the Condition and the one becomes impossible after by the Act of God the Obligee is not bound to perform the other part for
that otherwise his Election shall be taken away by the Act of God and the Condition is for the advantage of the Obligor and shall be taken beneficially for him One was bound that if after Marriage he and his Wife sold the Lands of the Wife if then he did in his Life time purchase to his said Wife and her Heirs Lands of such Value or else do and shall leave to her as Executrix or by Legacy or other good Assurance as much Mony c. He married her and she dyed and he survived her he is excused from the Bond 5 Rep. 22. Laughter's Case Crook Eliz. 398. mesme Case But if a Condition consist of two parts whereof one was not possible at the making of the Condition to be performed he ought to perform the other as if the Condition be to enfeoff J. S. or his Heirs when he comes to such a place he is bound to enfeoff J. S. when he comes for that the other is not possible for he may not have an Heir during his Life and so he had not any Election 21 E. 3.29 cited in Laughter's Case If the Condition of an Obligation be to enfeoff two before such a day and one dies before the day yet he ought to enfeoff the other 1 Rolls Abr. tit Condition p. 451. Horn and May. Vid. contra Expressement Bendl. p. 8. n. 31. Dyer 347. pl. 10.15 H. 7.13 5 Rep. 22 c. If the Condition be to enfeoff J. S. within a certain time if J. S. dies before the time be past the Obligation is discharged 1 Rolls Abr. 451. I am bound to enfeoff the Obligee at such a day and before the said day I dye my Executors shall not be charged with it for the Condition is become impossible by the Act of God for the Land descended to the Heir 2 Leon. p. 155. Kingwel and Chapman 2. By the Act of the Law If a Man be bound in a Recognisance for the appearance of another in a Scire-Fac he shall not avoid this Recognisance by saying that he which ought to appear was imprisoned at the day 1 Rolls Abr. p. 452. 2 Leon. p. 189. Wood and Avery If a Man be obliged to repair an House or build a Mill he is excused if the Obligee will not suffer him to do it or if a Stranger by the Command of the Obligee disturb him and will not suffer him 1 Rolls Abr. 453.3.4.5 A Condition that the Son of the Obligor shall serve the Obligee seven years if he tender the Son and the Obligee refuse it is no Forfeiture 22 E. 4.26 2 E. 4.2 So if he take him and after within the Term command him to go from him Vid. ibid. 1 Rolls Abr. 455. If the thing to be performed by the Condition may not be performed without the presence of the Obligee there his absence shall excuse the performance 12 H. 4.23 b. cited 1 Rolls Abr. 457. As if the Condition be to make a Feoffinent to the Obligee Aliter if it be to enter into a Statute to the Obligee for that may be performed in his absence A Condition to enfeoff the Obligee though the Obligee disseise him of the Land yet this shall not excuse the performance of the Condition for he may re-enter and perform it but if he keep it with force till after the day of performance it shall excuse 1 Rolls Abr. 453 454. Frances's Case 8 Rep. 92. If the Obligor by his own Act hath made the Condition impossible it is a Forfeiture 4 H. 7. 3 4. Vid. Keilway p. 60. Abbot of Glassenbury's Case Where a Refusal of one of the Obligors shall be a Refusal of both Two are bound in a Statute with Defeasance that they two shall make such assurance as shall be devised c. If an Assurance be devised and tendered to one and he refuse to seal this the Condition is broken by both for he need not make Request to both at one time 1 Rolls 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
Defendant to say that the Obligation was made to S. by duress without any Traverse for this is but matter of supposal 22 Ed. 4.40 by Jenny The Defendant pleads that Roberts was imprisoned and this Bond was given by him and the Defendant for enlargment the Plaintiff demurred Judgment pro Quer. this Roberts being no Father Husband Wife or near Relation in which Cases the Bond would be void 3 Keble 238. Warn and Sandowne Duress Br. 9. The Husband may avoid the Deed that he hath sealed by the duress of Imprisonment of his Wife or Son but not of his Servant so Mayor and Commonalty may avoid a Deed sealed by duress of imprisonment of the Mayor 2 Brownl 276. In Issue per Minas the Jury find it was per metum imprisonament ' Per Cur. the duress ought to be pleaded specially but the Verdict being that the Plaintiff threatned quod imprisonaret defendent crimen feloniae ei imponeret nisi c. it s ill being no more than by Law he may charge him with 1 Keble p. 516. Picard and Lawrence The Defendant after Issue de duress at the Assise relicta verificatione quod ipse non potest decere actionem c. vide the Form of the Entry and the Error was decere for dedicere and reverst Cro. Jac. 343. Anonymus Debt by H. I. Executor of S. the Defendant pleads per minas and after Issue joined before the Nisi prius confesseth the Action the Confession is in the debuit only whereas it ought to be in the detinet Per Cur. after the Defendant hath relinquished the Bar the Declaration remains without defence and so pro Quer. Moor n. 921. Joyner and Ognel The Defendant pleads duress The Plaintiff saith to this he shall not be received for that at such a day after the date of the Obligation the Obligation was enrolled in Chancery Cur. pro Quer. in such case he may not deny his Deed 16 H. 7.5 Debt upon Bond in Inferior Court duress was pleaded and no place certain alledged this may be ill upon a special Demurrer but is well after a Verdict there being a place where the Obligation was made infra jurisdictionem and the Party cannot plead duress unless where the Bond was actually sealed 2 Keble 630. Cubit and Green The Defendant pleads he made it per minas de vita c. the Plaintiff said he did it spontanea voluntate and traversed the minas The Plaintiff cognovit Actionem and vide the Entry Cro. El. p. 840. Brown and Holland Exposition of Conditions About payment of Mony doing other Acts. About payment of Mony Persons to whom to be paid or performance of other things By whom to be paid or performed Time of payment or performance Place of payment or performance Persons to whom payment is to be made or who are assigns for performance THE Condition is to pay 10 l. to such a Person as the Obligee shall name by his last Will and after the Obligee names none by his Will the Obligor is not bound to pay this to the Executor for the Condition hath reference to his nomination 1 Rolls Abr. p. 421. Tit. Condition Pease and Mead Moor n. 1106. Hob. p. 9. viâ— Hob. 1 Brownl 77. contra The Condition of the Obligation is to leâ— certain Lands for three Lives to the Obligee of his Assigns and after the Obligee demands a Leâ—e to be made to three Strangers for their Lives 〈◊〉 ought to do this otherwise the Condition is broken for by the word Assigns here is inâ—ed Assigns by nomination for he may not have other Assigns for the Estate is not assignable before he hath it 1 Rolls Abr. p. 421. Allen and Wedgwood If I am bound to pay Monies to two actually I can pay this but to one for that I cannot pay one and the same Sum to two several Persons at the same time per Glyn 2 Siderfin p. 41. Abbots Case A Condition to pay to B. and his Assigns 100 l. the Declaration was that he had not paid this to B. to which exception was taken for that he might have paid this to his Assigns and adjudged a good exception 2 Siderfin p. 41. Payment to a Scrivener is sufficient especially if he have the Bond in his Custody 3 Keble 471. Jacob and Searles Q. in 2 Keble 249. Hicks and Loging A Condition to pay Mony to the Obligee and the Parishioners of D. at such a day payment to the Obligee and two of the Parishioners is good Moor n. 175. A Condition is to pay 10 l. it s a good performance if he pay this to his Deputy 42 Ed. 3.13 b. If Judgment be given in Debt and the Mony is paid to the Attorny of the Plaintiff though the Attorny miscarry with the Mony yet the payment is good but if a Scrivener is imployed generally to put Mony to use for a year and the Monies are paid to the Scrivener who breaks this payment shall not excuse the Party but if he receive this by special command it s a good cause of Equity Lit. p. 54. Cro. El. 313. Dr. Ford versus Hollingbrough Lit. Rep. 156. Manningtons Case Lit. Rep. 173. Parsons and Evar. What Persons are to pay or do a thing by the Condition IF it be not set down in the Condition who shall do a thing if the Obligee hath more skill he shall do or else the Obligor if he have more skill shall do it A Tailor is bound to me that if I bring him three yards of Cloth which shall be measured and shaped and if he make â—e a Cloak of it and it is not said by whom it shall be shaped it must be done by the Tailor Perk. sect 785. A Condition of a Bond to pay Mony if my Servant by my command tender this to the Obligee this is sufficient 2 H. 6.3 b. Vide infra Exposition of Conditions Of payment of Mony on a Bond in general THE Defendant owed the Plaintiff Mony upon on Bond and also Mony for Wares sold at the day of payment of the Bond he tendered the Mony according to the Bond the Plaintiff accepted it and said it should be for the Debt due upon the Contract and so crost his Book but in Debt upon the Bond it was adjudged against the Plaintiff for payment must be secundum â—tem dantis non accipientis Cro. Mich. 29 and 30 Eliz. B. R. Anonymus Stiles p. 239. Boyâ— and Cranckfield Debt is due by Bond and another Debt is due by the same Debtor to the same Debtee of 〈◊〉 Sum and the Debtor pay one Sum generally this shall be intended payment upon the Obligation 2 Brownl 107 108. A Condition to pay yearly such Interest Mony as 20 l. shall amount to after the rate of 10 l. per cent when it is secundum ratam of 10 l. per cent the Court knows well that is 40 s. per ann Cro. Jac. p. 378. Williamson and Hunt Payment of a lesser Sum before
one lease Land to another for seven years if the Lessee should so long live and the Lessor obligeth himself to pay 10 l. at the end of his Term and he dies within seven years the Mony was presently due upon his death 1 Brownl Rep. fo 97. Cheney and Sell. The Condition is that the Obligor before such a day shall make a Lease to the Obligee for 31 years if A. B. will assent to this and if he will not assent then for 21 years the Obligor must make the one Lease or the other before the day though A. B. might assent at any time before the day Dyer 347. a. If a Condition be to stand to the award of J. S. and he awards him to pay 10 l. at such a day this is a good performance if he pay this before the day and the other accept it for Payment before contains Payment at the day Berry and Perrin 1 Rolls Abridg. tit Condition p. 440. 30 Ed. 3.32 b. So if the Condition be to pay so much to a Stranger and he pay it before the day ibid. So if the Condition be that a Stranger shall enfeoff a Stranger such a day and he enfeoff him before the day this is a good performance ibid. So if the Condition be to enfeoff a Stranger after the death of J. S. if he enfeoffs him during the Life of J. S. this is a good performance for that it continues a good Feoffment after his death 9 H. 7.17 20. If the Condition be to make an assurance within a Month after the date of the Obligation he is not bound by any request to do this at any certain time but he may perform this at any time within the Month Perpoint and Thimbleby 1 Rolls Abr. tit Condition 441. But if the Condition be to make farther assurance within a Month upon Request of the Obligee if the Obligee request within the Month and he refuse though he be ready afterwards within the Month to do it yet the Obligation is forfeited inasmuch as the time of the Month is limited to the Request mesme Case ibid. The Condition of an Obligation is If the Obligor do at all times hereafter within the space of one Month when he shall be required make such farther Act and Acts Assurance and Assurances as the Obligee shall by his Counsel demand c. then c. If the Obligee do not demand any farther Assurance within the Month after the making of the Obligation yet the Obligor is bound to make farther Assurance within a Month after Request made after the Month passed after the making the Obligation for that the first words at all times hereafter are without limit and the other words within one Month when he shall be required refer to the Request and it is not like the common Covenant to make farther assurance within seven years for Usage hath interpreted this that he shall not be farther troubled after seven years H. 1650. Wentworth and Wentworth 1 Rolls Abr. 441. The Latitat is ret die Lunae prox post Sanct. Trin. which was the 10th of July the Sheriff arrests him the 10th of July and takes Bond the same date with Condition to appear coram Dom. R. die Lunae prox post crast Trin. it seems he ought to appear the same day and not that day twelve month 1 Rolls Abr. 444. May and Hooper If A. be bound 1 May with a Condition to pay to B. 10 l. at the Feast of St. Michael without saying more this shall be intended the Feast of St. Michael next ensuing 1 Rolls Abridg. 444. Lewknor and Smalwood Payment or Performance where no time is limited Presently or within convenient time IN the Condition of a Bond for payment of Mony no time is limited it is to be paid presently this is within convenient time So in other Conditions which concern the doing of transitory Acts as delivery of Charters c. Aliter of local Acts Vid. puis 6 Rep. 30. b. Bothies Case Co. Lit. 208. a. 38 E. 3.12 Crook Eliz. p. 798. Nose and Bacon Popham p. 198. Sir Rob. Brown's Case If the Condition be to pay a certain Sum to a Stranger without limiting any time this ought to be within a convenient time 1 Rolls Abr. tit Condition fo 437. the Bishop of Rochester's Case The Condition was if the Defendant did sell the Tithes in R. that he should pay the Plaintiff such a Sum of Mony but if he sold them not then he should deliver an Obligation to the Plaintiff for the payment of an express Sum at a certain day Moved in Arrest that he had not convenient time and it appeared not by the Record that he had but per Cur. there was convenient time between the date of the Bond and bringing the Action especially a second thing being to be performed Stiles p. 11. Williamson and Henly If the Condition be to make a Retraxit of a Suit he ought to do this within a convenient time So if it be to acknowledg satisfaction in such a Court 6 Rep. 30 Bothies Case 1 Rolls Abr. 436. If the Condition be to perform the award of J. S. who awards the Obligor to pay 10 l. without limiting any time he ought to pay this within time convenient 22 E. 4.25 A Covenant to make farther assurance at all time and times and the Covenantee adviseth he shall levy a Fine he shall have convenient time to do it for the words at all times shall have a reasonable Construction 1 Rols Abridg. 441 Perpoint and Thimbleby A Condition to make an Obligation to the Obligee by the advise of J. S. of 40 l. immediately yet he shall have reasonable time to do this 18 E. 4.21 Where by the Condition a thing is to be performed upon demand yet he shall have reasonable time to perform this after demand 15 E. 4.30 During the Lives of the Parties not before Request WHere by the Condition the Act to be done to the Obligee is of its own nature local as to make a Feoffment c. there the Obligor no time being limited hath time during his Life to perform it if the Obligee doth not hasten the same by Request for this is collateral and not like to payment of Mony Crook Eliz. 798. Nose and Bacon Yet when the Obligor may do that that is local in the absence of the Obligee as to acknowledge satisfaction in the Court of Kings Bench there he must do it in time convenient Co. Lit. 208. a. 6 Rep. 30. b. Bothes Case The Condition is to do such Acts c. for the better assurance c. to B. that shall be devised by B. or his Counsel c. B. deviseth a Release A. not being lettered desires to shew it to Counsel before he seal it he shall not be allowed reasonable time to shew it he having taken it upon him to do it Co. 2 Rep. Manser's Case p. 1. 1 Rolls Abr. 440. If the Condition be pay without limiting any time
Dudeney and Collier In Debt on a Bill of 40 l. to be paid at H. which is out of the Jurisdiction of the Court of Jernemutha being in the County of the City of N. which is Error the Count being upon payment generally 1 Keb. p. 378. Annison and Perkin A Condition to perform Articles one whereof was to pay Mony which the Plaintiff should disburse in composition of a Fine set on the Defendant by the Judges of Assize The Plaintiff averred he had paid 50 l. ad recept suam apud Westm and saith not in Com. Midd. The Defendant demurred the Averment was ill 2 Keb. 204 Ansly and Anslow Condition to pay Mony upon Marriage THE Condition was to pay 100 l. to the Plaintiff on his Marriage-day The Defendant pleads he had no notice given him of his Marriage-day Ill Plea for no notice need to be given 2 Bulstr 254. Selby and Wilkinson A Condition to pay 300 l. in consideration of a Marriage between the Plaintiff and his Daughter which 300 l. was to be paid within three Months after that he shall come to the age of 18 years or within 18 days of the Marriage after notice made which shall first happen Per Cur. the notice shall relate to both because it is uncertain which of them shall happen first Latch p. 158. Read and Bullington In Debt on a Bond to pay Mony upon Marriage the Jury may try Wife or not Wife but not the Legality of Marriage and it need not be alledged that the party was married at the time of the Bill The Issue here is not legitimo modo maritatus as in Dower which shall not be tryed by a Jury but in Debt on Bond it doth not draw the Right of Matrimony in question 1 Keb. 105. Tr. 13 Car. 2. Glascock and Morgan Conditions to pay Mony concerning Children or Bastards THE Condition was for the payment of Childrens Portions when they married or came to the age of 21 years The Defendant pleads that he had paid the same cum quam cito they came to their full age generally It is an ill Plea he ought to have shewed the time when they came to age and when he paid this Mony that so upon this Issue might be taken 2 Bulstr 267. Haulsey and Carpenter A Man was bound to pay to the three Daughters of a Stranger 10 l. a piece at 21 years of age The party being sick makes his Will and in performance of the Covenant for which he was bound in an Obligation devised to each of the Daughters 10 l. to be paid at 21. One sues for her Legacy and a Prohibition was granted for the intent of the Devise was he should not be twice charged More n. 368. Margery Davies Case A Condition for the payment of 120 l. at the full age of J. B. if it be demanded The Defendant pleads the Plaintiff did not demand it after the full age of J. B. Judgment for the Plaintiff for the bringing the Action is a sufficient demand Crook Jac. p. 242. Dockray and Tanning The Condition was to pay 10 s. weekly secundum ordinem fact per Justiciar c. for keeping a Bastard Child The Defendant sur Oyer pleads nullum talem ordinem fecerunt Judgment pro Quer. Otherwise if it had been secundum ordinem faciend Latch p. 125. Jermin and Randal for the one is an Estoppel to the Defendant the other is Executory Noy p. 79. vide plus sub Tit. Conditions to save harmless A Condition to pay Mony upon proof or if such a thing be proved then c. A Condition to pay within three months next after his Arrival from Rome 10 l. the Obligee proving the same by Testimonial or Witnesses the proof might be by Witnesses or Testimonial under the Seal of several Persons at Rome Moor n. 307. The Condition was If such Lands be proved to be parcel of the Mannor of Dale if then c. the Defendant pleads they were not proved to be parcel of the Mannor and demurs Per Cur. he ought to have pleaded they were parcel of the Mannor so as proof might have been made in this Action Cro. Eliz. fol. 232. Elve and Sabe Judgment pro Quer. Vide plus sub Tit. Apprentices Bonds Special Conditions for payment of Mony on Contract Agreements Contingency c. and pleadings thereon A Condition to pay 300 l. to the Plaintiff and to add 3 l. to every Hundred if it were demanded the Defendant pleads he paid the 300 l. and that he added 3 l. to every hundred secundum formam Conditionis praedict Verdict pro Quer. but Judgment pro Defendente upon Arrest because the Plaintiff ought to have alledged a Demand and this being matter of substance without which the Plaintiff had no cause of Action it was not helped by the Issue or Verdict though the words secundum formam Conditionis seem to imply a Demand Allen p. 55. Hill versus Armstrong A Condition if the Obligor pay to the Obligee 100 l. within one month after notice of his return from Constantinople into England that then c. the Defendant pleads no notice was given to him of the return c. Verdict pro Quer. Error assigned because it is not averred that the Mony was not paid and then no cause of Action but per Cur. it s no Error for when the Defendant said he had no notice this is a confession per nient dedire that he had not paid it and Issue being taken upon a collateral Matter and found for the Plaintiff he shall have Judgment Cro. El. p. 320. Griffin and Spencer The Condition was to pay 40 l. per ann quarterly so long as he was to continue Register to the Arch-deacon of C. the Defendant saith the Office was granted to A. B. and C. for their Lives and that he enjoyed the Office so long as they lived and no longer and that so long he paid the said 40 l. quarterly the Plaintiff replies The Defendant did enjoy the Office longer and had not paid the Mony the Defendant demurs per Cur. the Replication is not double for the Defendant cannot take Issue upon the non-payment of the Mony for that would be a departure from his Plea in Bar Mod. Rep. p. 227. Gaile and Bets. A Condition if they or either of them two Obligors upon request made should pay for so many Barrels of Beer as should be delivered to them so much for every Barrel as should be agreed upon between them c. the Plaintiff sets forth he had delivered so many Barrels of Bear and agreed for 10 s. per Barrel which Mony he had requested of one of the Obligors he may require payment of one or the other 3 Bulstr p. 210. Ratcliff and Clerk A Condition to pay so much per dolium breach is assigned for the Defendants non-payment of so many Tuns and three Hogsheads which per Cur. is ill the Condition being not to pay secundum ratam as in Needlers Case of
by Deed indented leased to the Defendant a Farm called D. except one Close by Name Lessee Defendant was bound in a Bond to perform all the Covenants and Agreements in the said Indenture and pleaded he had performed all the Covenants the Plaintiff assigns for breach that the Defendant entred into the Close excepted the Defendant demurs Per Cur. the Obligation is not forfeited by this disturbance this Exception is not such an Agreement as is within the intent of the Condition it s an Agreement that the Land excepted shall not pass by the Demise but no Agreement that he shall occupy but sometimes an Exception is an Agreement that shall charge the Lessee but this when he agrees on his part that the Lessor shall have a thing dehors which he had not before as except a Way or Common or any other Profit a Prender that is Agreement of the Lessee that he shall have the Profit and if he bound to perform all Covenants and Agreements if he disturb him in this he shall forfeit the Obligation Cro. Eliz. p. 657. Lady Russel versus Gullwell Moor n. 713. id Case In a Lease for years the Defendant Covenants that the Plaintiff should enjoy it during the Term on Demurrer the Case was Tenant pur vie levies a Fine to him in Reversion come ceo c. the uses were to the Conusee and his Heirs on condition to pay to the Tenant pur vic 4 l. per ann during his life and upon default that it should be to the use of the Conusor for his life the Conusee made a Feoffment to the Defendant who leased to the Plaintiff the 4 l. was not paid nor demanded the Tenant pur vie enters on the Plaintiff this is a breach of the Condition without any demand of the Rent for its a Sum in gross and not issuing out of the Land the Covenant is that the Lessee shall absolutely enjoy it and this Condition is properly to be performed by him who hath the Freehold and it was held that this Feoffment had not destroyed the future use which is to arise for non-performance of the Condition Cro. El. 688. Smith and Warren Two make a Lease for years by Indenture and covenants that the Lessee should not be disturbed nor any incumbrance made by them one of the Lessors makes a Lease to a Stranger who disturbs on Bond to perform Covenants it s a breach of the Condition for them shall not be taken jointly Lach. p. 161. Merritons Case Condition of the Obligation was That the Plaintiff should have hold and enjoy Lands acquitted from all Charges and Incumbrances and for breach the Plaintiff shew there was a Rent-charge granted by the Predecessor under whom the Defendant claimed which is yet undischarged the Defendant demurred because the acquittal goes to the having and holding the Land and it s not shewed that the Plaintiff was ever in possession nor that he was charged or endamaged to which Twisden and Keeling agreed but by Windham the Defendant ought to shew how he had discharged and acquitted from the very Rent and not to let it perpetually hang over him but by all the Court if the Acquittal refer to the Land it self or to the Person the Defendant must shew how 1 Keb. fol. 927. King and Standish A Covenant that the Indenture of a Lease at time of the Assignment is a good true and indefeasible Lease and that the Plaintiff shall enjoy c. without the let or interruption of the Defendant or of any claiming by from or under him and shews for breach that before he that made the Lease had any thing one J. S. was seized in Fee and that he which made the Lease entred upon him and disseised and leased prout and that J. S. re-entred upon him upon which Replication the Defendant demurs per Cur. the word indefeasible Lease shall be construed as a distinct Sentence from the last words that he shall enjoy it without the interruption of the Defendant Siderfin p. 328. Gainsford and Griffith 1 Sanders p. 51. Johnson and Vavisor Joyntenants of a Mill by Lease for years Vavisor assigns all his Interest in the Mill to another without Johnsons assent or privity and dies Johnson after recited this Indenture by Lease and that all came to him by Survivorship grants the said Mill and all his Estate Title and Interest to Procter and covenants that he shall quietly enjoy it notwithstanding any Act done by him and Bond of Covenants Act. de Det sur Bond. Johnson pleads that the Plaintiff had enjoyed this notwithstanding any Act done by him Procter replied that Vavisor Joyntenant with Johnson assigned his Estate to J. D. who entred and expelled him The Defendant demurs adjudged against the Defendant for the Grant was never good for he had no power to grant one Moiety and yet he had expresly granted the Mill to Procter And the Condition of the Obligation being to perform all Grants the Grant being defective at the first as to a Moiety which is the Substance of the Agreement of all the Parties this is not qualified by the Covenant ensuing and it is not like to Nokes Cass 4 Rep. for there the Grant was good for the whole and becomes ill by Eviction afterwards and therefore the Covenant ensuing qualified the general Covenant Yelv. p. 175. Johnson and Procter Lit. 206. 1 Bulstr 3 4. A Covenant that the Lessee shall enjoy against the Lessor and all claiming under him The Defendant exhibited a Bill whereby the Lessor appeared to be in Trust and adjudged this was no Breach Selby and Chute cited 2 Keb. 288. 1 Brownl p. 23. The Covenant was if the Defendant sued or troubled charged or vexed the Plaintiff Per Cur. a Suit in Chancery is within the Condition 2 Keb. 288. Ashton and Martin A Condition to surrender a Copyhold and that the Plaintiff shall enjoy this without the let of any claiming under the Defendant and of one Lancelot Simons The Defendant pleaded Surrender and that the Plaintiff had quietly enjoyed this The Plaintiff replies that one Jane Simons claiming under Lanceolet ousts him Demurrer and Judgment pro Quer. The Case was this Copyhold was granted to Patience Hussy for Life the Remainder to Lanceolet S. in Fee and that after and before the Obligation Lancelot surrenders his Remainder to the use of Patience for Life and after to the use of Lancelot and Jane for their Lives and after to Lancelot's Heirs Lancelot and Patience dye and after the Obligation Jane enters The cause of Demurrer was that Jane took nothing by the Surrender for the Surrender to P. H. pur vie was void she having an Estate pur vie before and consequently the Remainders by notice upon this void Estate are void also Dut per Cur. the Estate limited to Jane S. shall be by way of present Estate and mediate Settlement and not by way of Remainder 1 Sanders p. 150. Wade and Balch 2 Keb. 341. Id. Case
Siderfin p. 360. The Condition was whereas J. F. claimed to have Lease for years of the M. of D. made to him by W. If the said Defendant keep without damage the Plaintiff from all Claim and Interest to be challenged by J. F. de tempore in tempus during the years c. The Defendant pleaded after making the Obligation until the Action brought The Plaintiff was not damnified ratione dimissionis Plea good for if he were not damnified ratione dimissionis then he was not damnified by reason of any Claim or Interest 3 Leon. 118. Brainthwait's Case To enjoy absque legali impedimento of J. S. the Breach is that J. S. habens jus entred it is a sufficient Breach 2 Keble 878. Procter and Newton On Covenant to acknowledg a Fine A Covenant that the Vendor should make farther Assurance at the Costs and Charges of the Purchasor It was alledged for Breach that a Note of a Fine was devised and ingrossed in Parchment and delivered to the Vendee to acknowledg the Fine at the Assizes which he refused to do and the Plaintiffs Breach was demurred upon because he did not offer Costs to the Vendee and per Cur. its ill 1 Brownl Rep. p. 70. Preston and Dawson On a Covenant for farther Assurance the Breach is Advice and Request of a Fine by such a Counsel and shews Dedimus Potestatem to A. and to revive the Conusance and the Obligor being requested refuseth though he shew not any Writ of Covenant was depending or that the Writ was delivered to the Commissioners and though the Fine was with Warranty yet because the Covenant is not to levy a Fine but to do such Acts as shall be required Judgment pro Quer. Latch p. 186. Tindal's Case If one do covenant generally to levy a Fine of Lands he is not bound thereby to go before Commissioners by Dedimus Stiles Pract. Reg. 75. I am obliged that J. S. who is a Stranger shall levy a Fine to the Obligee the Obligee is bound to sue out a Writ of Covenant Aliter if I am obliged to you that J. S. shall levy a Fine to J. N. Winch p. 30. Hill and Waldron The Condition was the Obligor shall levy a Fine to the Obligee the Obligee ought to do the first Act viz. to sue a Writ of Covenant 5 Rep. Palmer's Case The Condition was J. S. shall levy a Fine to the Obligee before such a day The Defendant pleads the Obligee had not sued forth a Writ of Covenant The Plaintiff replies that before the Obligation made J. S. had made a Feoffment to J. D. of the Land and the Feoffee was in possession at that time Here the Obligee need not sue a Writ of Covenant for by the Feoffment J. S. had disabled himself at the time of the Obligation Sed Quaere Winch. p. 30. Eill and Waldron A Condition to levy a Fine at the Costs of the Obligor c. The Defendant pleads no Fine was levied by c. according to the Condition The Plaintiff demurs because it is not averred the Defendant brought any Writ of Covenant Sed non allocatur Per Cur. the Law is now changed and the Fine levied before any Writ entred and therefore must be done by the Plaintiff without any Writ 1 Keb. 816. Culpepper versus Austin A Condition that Baron and Feme being Lessees for Life should levy a Fine to a Stranger at the Costs of the Stranger and also that they should levy a Fine of other Lands to a Stranger at their Charge The Obligor saith the Baron and Feme did offer to levy the Fine if the Stranger would bear the Charges The Plaintiff demurs and pro Quer. because the levying the second Fine had not reference to the other for and also make them two distinct Sentences 1 Brownl 94. Hollingworth and Huntly A Condition that he and his Wife would levy a Fine upon reasonable Request of the Obligee he made the Request the Wife being very sick so as she could not travel Resolved her Sickness saved the Obligation from the Forfeiture More n. 256. A Condition that such a Woman should make such farther reasonable assurance to J. D. as J. D. should devise J. D. devised a Fine and required her to come before the Judge of Assize to acknowledg she came and the Judg refused her as non compos mentis Per Cur. the Condition was not broken because it is to make a reasonable assurance Aliter if the words had been special to acknowledge a Fine 1 Leon. p. 304. Pet and Cally. If a Man be bound to another to make such assurance of Lands as the Obligee shall devise it is not sufficient for him to devise a Fine and to take out a Dedimus c. upon it and require his Conisance in that for this is but a special way of taking the Conisance But if there were a Proviso that he should not go above five miles from his House then if his House be above five miles from Westminster he is bound to make his Conisance on the Dedimus this hath been the difference Allen p. 69. One covenants for farther assurance to levy a Fine of all his Lands in D. which was four Houses and tenders a Fine The Defendant pleads at the time of the Covenant he was only seised of two Houses and that the other two descended to him afterwards and good A Covenant to levy a Fine of two Acres and the Fine is of four Acres by the name of two Acres comprehended in the Indenture it is not good 1 Rolls Rep. 103 117. Wilson and Welsh 2 Bulstr p. 317. 1 Rolls Abr. 425. A Covenant to make farther Assurance and to do any Act or Acts c. and shews he demanded of him and tendred a Note of a Fine comprehending that he would levy a Fine of three Messuages c. and that he required him to acknowledg it before a Judge of Assize The Defendant pleads in the Note were more comprised than he intended to assure it is no Plea Cro. Jac. 251. Bonlay and Curtes If one be bound to levy a Fine to another he is not bound to sue forth the Writ of Covenant but he who is to have advantage of the Fine is to do it and in the Case aforesaid he ought to levy a Fine upon this Note notwithstanding there was no Writ of Covenant then hanging and in the said Case though the Note contained more Acres than the two Yard-Lands this is good 1 Bulstr 90. Id. Case For performance of Covenants one was to marry S. the Daughter another that Sir E. S. and his Wife should levy a Fine of such Lands to the Defendant and to the Plaintiffs Daughter S. and to the Heirs of their Bodies 3. That the Inheritance of the Premises should remain in the said Sir E S. or himself until the Fine levied 4. Whereas he had granted a Lease for years to S. the Plaintiffs Daughter that he bad not made any former Grant nor
this Verdict is found against the Defendant the Plaintiff is not estopt to say that the Deed shewn is not the Deed of the Baron and Feme but he is estopt by the Condition to say that there is not any such indenture Cro. Eliz. p. 796. Ship and Steed Release Pleaded If before the breach of any of the Covenants the Obligee releaseth the Covenants and afterwards one of the Covenants is broken the Obligation is not forfeited for there is not now any Covenant which may be broken and so the Obligation is discharged but if the Release had been made after the Covenant broken aliter 3 Leon. 69. What is confessed by pleading Conditions performed Obligation to perform Covenants the Covenant was If the Plaintiff pay the Defendant 100 l. at Michaelmas that the Defendant would pay him yearly after 10 l. for his life and averred he did not pay him 10 l. yearly but did not mention the payment of 100 l. by him which was assigned for Error Per Cur. it s no Error because the Defendant by pleading Conditions performed had confessed the payment of the 100 l. to him by the Plaintiff Moor n. 474. Goodwin and Isham If the substance be answered though not the very words its good as the Condition was if he perform all the Covenants Conditions Agreements and Articles and when the Defendent cited them in his Plea which are all the Covenants Conditions Agreements and leaves out Articles and so hath not pleaded performance of the Condition but per Cur. Agreements is all one with Articles and if many words contain one thing in signification if he answer to them in substance its good and the Condition was If the Defendant and T. and their Assigns perform c. and he pleads he and T. had performed but saith not he and T. and their Assignes had performed c. and it may be they had assigned it over but per Cur. it appeareth not there is any Assignee and it shall not be intended except it be specially shewn and a Bar it good to common intent Cro. Eliz. p. 255. Eniot and Cole Where an Act is to be done according to a Covenant he who pleads the performance of it ought to plead it specilly but where no Act is to be done but only a permittance permifit is a good Plea one Covenant was That the Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have free ingress c. at his pleasure the Defendant pleads quod permifit D. querentem habero intrationem exitum c. in tales tâ—rtâ— quales tunc jacobant frisca secundum conâ—uetudinem pâ—triae he need not shew in certain what Lands did lie fresh and it shall come on the Plaintiffs part to shew in what Lands the Defendant non permifit 1 Leon. p. 136. Littleton and Perne The Defendant is not bound to plead performance of any more than his own Grants and Covenants vid. Dyer 26 H â— 27 b. One Covenants with J. S. that he shall enjoy the Land and farther that A. a Farmer of the Tithes shall pay 8 l. per annum and is bound to performance in Debt on Bond its good to plead performance of the Covenants ex parte sua perimplend for this implies the Farmer had paid the 8 l. and express mention of that needs not be Dyer 23 El. 372 373. In Debt for non-performance of Covenants the Plaintiff ought to shew how the Covenants are broken and if it be in non-payment of Rent he ought to shew in certain what day the Rent was arrear 9 H. 6.18 Debt to perform Covenants one was to many the Plaintiffs Daughter before such a day 2. That Sir E. S. and his Wife should levy a Fine of such Lands c. 3. Whereas he granted a Lease of c. to S. that he had not made any former Grant nor would afterwards make any Grant thereof without the Plaintiffs assent the Defendant quoad the last Covenant in the negative pleaded that he had not made any former Grant of the Lease nor had made any Grant after the Obligation without the Plaintiffs assent Et quoad omnes alias conventiones that he had performed them the Plaintiff demurs 1. Because the Covenant to levy a Fine is an Act to be performed by a Stranger and to be performed on Record and it s not sufficient to plead general performance 2. Because the Covenant being in the disjunctive he ought to shew specially which of them and not generally 3. He pleaded he did not grant without the Plaintiffs assent which is negativa prognans Per Cur. for these Causes the Plea not good Cro. Jac. 560. Lee and Luithil Issue Trial. COvenants in a Lease of an House the Defendant pleads he was an Alien born at Paris in France and an Artificer and so by 32 H. 8.16 the Lease void the Plaintiff replies The Defendant was not an Alien and Artificer the Defendant demurs Per Cur. Alien and Artificer are but the same Person and but one Breach 2. This Issue cannot be tried because the Replication should have been that he was a Denizen born at Islington in England and that he is no Alien generally 2 Keble 315. Freeman and King 98. On performance generally pleaded the Plaintiff may reply with particular Breach hoc paratus c. and leave the Issue to the Defendant contra on Condition to pay Mony at several days the Defendant pleads particular payment the Plaintiff replies he did not pay such a day certain hoc paratus c. it s ill 1 Keble 759. Charleton and Fine The Defendant pleads Covenants performed the Plaintiff assigns a Breach in not delivering up an House the Defendant rejoins before the end of the Term the Plaintiff gave him leave to continue it longer Per Cur. it s a departure the parol Agreement was pleaded in Bar 1 Keb. 678. Brooks and Lake The Defendant pleads the Obligation was for performance of Covenants and shews what and alledgeth farther that in the said Indenture is a Proviso si aliqua lis vel controversia oriatur imposterum by reason of any clause that then before any Suit thereon the Parties should choose four indifferent Persons for the ending thereof which being done the Obligation to be void and in facto saith that Controversy did arise the Plaintiff demurs per Cur. because the Defendant hath not shewed what strife and what clause the Bar is not good for it extends not to every Covenant only where strife ariseth 1 Leon. 37. Parmort and Griffin A Condition for performance and sets forth the Covenant and shewed farther that the Plaintiff after sealing procured J. S. to rase the Indenture and shews wherein and so the Indenture became void Per Cur. it s against the Defendant the Rasure not being in a place material an the Rasure trencheth to the advantage of himself who pleads it and if the Indenture had become void by the Rasure the Bond
had satisfied so much or that was not molested Crook Eliz. p. 393. Hutchinson and Leâ—son The Condition is if R. C. acquit R. F. and J. B. of such Sureties they have made to N. that then c. pleaded that R. F. and J. B. were bound to N. in 15 l. and R. C. did procure Acquittances of N. to R. F. and J. B. for the same See the form of pleading Quaere if good Plea 1 H. 7.30 a. The Condition was to secure him harmless against J. S. in an Action for 53 l. for which he was Bail for him The Defendant pleads he had paid to J. S. 20 l. in satisfaction of the 53 l. and so kept him harmless but for that the Plaintiff might be damnified before the payment to which he doth not answer the Plea is ill Crook Eliz. p. 136. Davies and Thomas In Debt on a Counter-bond for Security of Bail given for appearance of the Defendant The Defendant pleads non damnificatus The Plaintiff replied Non comparuit The Defendant rejoyns that the first Bond given was void per 23 H. 6. and that there was no Latitat issued forth per Cur. this is a departure But notwithstanding the Bond the party is not estopt to say there was no Latitat but the Non-appearance is a damnification be the Bond void or not 1 Keb. 59 98. Cook and Morgan Condition to permit WHere no Act is to be done but only a Permittance he need not plead it specially and non permifit or permisit is a good Plea A Covenant that the Plaintiff to such of the said Lands as by the Custom of the Country tunc jacebant frisca should have free ingress c. The Defendant pleads quod perâ—nisit Querentem intrare c. in tales terras quales tunc jacebant frisco secundum consuetud patriae he need not shew what Lands did he fresh 1 Leon. p. 136. Littleton and Perne L. covenants with S. that he would suffer him and his Assigns to have free ingress c. into his House and Shop without let or interruption of the said L. and that S. appunctuavit one T. ut servientem suum in Messuag c. intrare in usum de S. super quo praedict T. intravit praedictas L. expulit Moved in Arrest 1. It is alledged L. expels the Servant and this was the expulsion of the Master 2. Appunctuavit intrare and doth not say what time for perhaps his Licence to enter might be determined 3. It is not said at what time he entred but super quo intravit all these Exceptions were over-ruled 2 Rolls Rep. 78. Snelling and Lowe The Condition was if A. a Stranger would render himself to an Arrest in such a place The Defendant pleads A. was a Servant to a Parliament-Man and pleads Priviledge The Plaintiff demurs Pro Quer. for A. might render himself and let it be at their peril if they will arrest him 1 Brownl Rep. 91. Jackson and Kirton A Condition to perform all Covenants in a Lease made by her Husband of a Warren one whereof was to do no Act to disturb the Lessee she after marries another Husband who entred on the Plaintiff and cut his Nets no Title being shewed by which he entred The Plaintiff demurred and Judgment pro Quer. It is not requisite that the Husband be Assignce of the Estate but her Assignce of Contract which she might have avoided the Husband acts in her Right 1 Keb. 348 512. Hall versus Creswel Uxor One is bound to permit his Tenants to use the Common and that he shall not alter the Course of the Common quod permisit and that he shall not alter c. is a good Plea generally 11 Eliz. Dyer 279. Condition to surrender Copyhold Lands THE Condition was that the Obligor should surrender his Copyhold Land to the use of the Obligee he pleaded he had surrendred it ill Plea because he had not shewed when the Court of the Lord was holden Winch p. 11. Llewellins Case The Condition reciting whereas such Copyhold Lands were to be surrendred by A. S. at her full age to the use of the said Hammond and Guy and their Heirs and that Gay should pay to Hammond 33 l. at such a day and if he failed it should be to the use of Hammond and his Heirs It was conditioned that if the Obligor procured the said A. S. at her full age to surrender to the use of Hammond and his Heirs and if Hammond and his Heirs might have and enjoy the said Lands to him and his Heirs then the Obligation c. The Defendant pleads Gay paid not the 33 l. and that A. S. came of full age such a day and afterwards at such a Court in full Court did surrender release and quit claim to the Plaintiff being in possession all her Estate Right and Interest in the same Tenements and that the Plaintiff always after might have enjoyed the same Tenements The Plaintiff replies quod bene verans est that the said A. S. did surrender prout c. but that afterwards such a day the said Gay entred and expelled him The Defendant demurs per Cur. the Replication is not good because he hath not shewed he was evicted by lawful Title for otherwise this Bond doth not extend to it and per Cur. the Bar that shall be surrendred and released in Court is good and certain enough according to common intendment And although it be not said she surrendred to the use of the Plaintiff yet it being alledged it was surrendred in Court and accepted by the Plaintiff and confessed by the Replication it is good Crook Car. first Case Hammond and Dod. The Condition whereas F. held Copyhold Land of Sir J. K. if he within six Months after the death of F. granted the Land to the Plaintiff and two others whom the Plaintiff should name for three Lives according to the Custom of the Mannor that then c. The Defendant pleaded the Plaintiff nominated no Lives The Plaintiff replies Sir J. K. within the sixth Months granted it to J. S. and two others for their Lives who are yet alive the Defendant pleads non conâ—ossit and found against him It is not Error that the Plaintiff in his Replication shows not that the lands are Copyhold for the Condition reciting it is Copyhold Land he is estopt Crook Jaâ— p. 275. Sir J. Kernes Case To satisfie Imbeziled Goods ONe was bound to satisfie for Goods he had imbeziled he pleads that upon suit for those Goods he was taken in Execution for the damage No Plea 33 H. b 47. Hillaries Case Hob. p. 59. The Condition if A. turned over Apprentice should waste the Goods of his Master to pay what the Master was damnified no damage pleaded Plaintiff sets forth goods wasted but it s forth no notice given to the Defendant no notice is necessary when any one undertakes for a third person he must answer for him at his peril because the imdesilment is
not in the Conisance of the Plaintiff and the particulars of the Goods wasted need not be set forth 1 Keb. 467.471 French and Beirce To enjoy Office A Condition Whereas the Plaintiff and Defendant be now jointly seised of the Office of the Registry of the Court of Admiralty if the Defendant shall permit the Plaintiff to use the said Office and take the profits of it to his own use during his Life without let or interruption done by him then c. the Defendant pleads That the Custom of the Realm of England is that the Lord Admiral might grant the said Office during his own Life and the Lord Clynton did grant it to the Plaintiff and Defendant and dyed and the Lord Howard granted to Wade who ousted him before which time the Defendant suffered the Plaintiff to enjoy the said Office and to take the Profits the Plaintiff demurs male plea for if it be the custom of England then its common Law and this cannot be tryed for no Venue can be from the Realm of England also he doth not answer to any time after the grant of Admiral Howard for though Wade might lawfully put him out yet the Defendant could not 2 Leon. 114. Parker and Harrold Condition if the Plaintiff had possessed and enjoyed the Office of Ecadleship c. that then c. Defendant pleads quod habuit gavisus fuit occupâ—vit c. Jury find the Plaintiff did exercise and occupy that Office but whether that shall be said having and enjoying they doubted Per Cur. diversity between an Office in verity and an Office in reputation for of Office in reputation there can be no other possession but by occupation for it is no Office in Interest as Office of Marshal of Justice of Assize Cro. Eliz. p. 382. Dudly and Kingâ—n To procure an Office Place Benefice THe Condition was if S. procure a Grant of the next Avoydance of the Arch-Deaconry of Staff to be made to the said Bingham so that the said Bingham to such next Avoydance may present that then c. the Case was by the means of S. the Grant of the said next Avoydance was made to Bingham but before the next Avoydance the present Arch-Deacon was made Bishop so as the Presentment to the nâ—t Avoydance appertained to the â—en Per Cur. the Condition was not performed and that by reason of these words so that Bingham may presented 3 Lâ—on 151. Bingham and Squire Condition if the Defendant do not lawfully procure Market to be granted within six Months of a return of an ad quod damnum to be sued out for that purpose that them if the Obligor pay 20 l. to the Obligee then c. it was returned to be ad damnum and so no Market procured Obligee shall recover the 20 l. Rationem vide 2. Rolls Rep. 467. J … and March Conditions concerning Writings to procure to deliver to execute to make IF a Man bind himself to procure a Stranger to make a Release of all his Right and Title to Land the Obligor must procure him to make such a Release de facto though he had no right 1 Sâ—â—ders 216. Doughty and Neal. Vide there the Form of the Condition and the Pleadings A Condition if J. S. make Obligation to the Plaintiff before Michaelmas that then c. the Defendant pleads J. S. made the Obligation and sealed it and delivered it to another as his Deed to the Use of the Plaintiff Per Cur. it s no performance for perhaps the other will not deliver it to the Plaintiff Cro. Eliz. p. 143. Bease and Draycot Condition to pay 100 l. to the Plaintiff when he shall take a sufficient discharge from A. and B. for the payment of Legacies an Acquittance from one by the others consent is no sufficient discharge 1 Keb. 739. Forquer and Fraâ— Condition that the Daughters when they come to full Age shall give Releases it shall be taken diâ— 2 Keb. 591. â—osviles Case Condition to give such a Release and Discharge from and against him and his Heirs for receipt of a hundred Marks as by the Judge of the Prerogative Court of Canterbury shall be thought meet the Defendant pleads the Judge did not appoint any release or discharge c. no Plea for it should be alledged he caused a Release to be drawn and tendered to the Judge to be allowed of for it is on his part in discharge of his Obligation to draw such a Release as the Judge shall allow Cro. Eliz. p. 716. Lamb and Brownwent 5 Rep. 23. b. The Judge is a stranger to the Condition and he hath taken it upon him to do it at his peril he ought to procure the Judge to direct it Lambs Case A Condition if Obligor deliver to the Plaintiff an Obligation in which he was bound to the Defendant before such a day that then c. the Defendant sueth the Plaintiff upon the Obligation and recovereth and afterwards and before the day he delivers it to him this is no performance though the words were performed yet the intent was not for the intent was he should have the Obligation for his discharge which is not by the delivery for tranfit in rem judicatam and he may have the benefit of the judgment Cro. Elz. p. 7. Teales Case If a man not Lettered be bound to make a Deed he is not bound to seal and deliver any Writing which shall be tendred to him unless there be some body present that may read this to him or expound it if he request it 2 Rep. 3. Mansers Case The Condition was to seal and execute a Release to the Plaintiff The Defendant demurs because the Plaintiff in his Declaration did not alledge a Tender the Condition not being to make but to seal and execute Per Cur. he is bound to do it without a tender Mod. Rep. 104. Baker and Bulstrode Condition was That the Obligor shall deliver all Writings concerning such Land it s a good Plea to say generally that he had delivered all the Writings 28 H. 8. Dyer 28. 4 H. 7.12 Condition to enfeoff the Obligor of certain Lands at such a day and place Pleaded that the Defendant was present there all the day to enfeoff the Plaintiff and that the Plaintiff came not there to accept of this Plaintiff replies he was there present all the day to accept the enfeoffment without that that the Defendant was there it s a good Replication Doct. pl. 323. 22. Ed. 4.43 Condition to deliver Possession COndition if R. H. upon request by the Plaintiff his Heirs or Assigns should deliver the Possession of such a Farm to the Plaintiff his Heirs or Assigns c. The Plaintiff assigns the Reversion by Deed to Richard and Henry P. in Fee At the day H. P. alone came and demanded the Possession without notice given of â—s coming c. Per Cur. 1 The deâ— of H. P. is the demand of both and the delivery of the Possession to one
hands Et hoc paratus c. the Plaintiff replies a Silver Bowl belonging to the said W. N. at his death came to the Defendants hands such a day and place Et hoc paratus est verificare the Defendant demurs Per Cur. the Replication is ill for the Plaintiff hath not shewed a Breach for he ought to shaâ—e the Defendant had 〈◊〉 made a dividend or paid the proportion 1 Sanderâ— 100. Heymaâ— and Gerrard Conditions concerning Wills and Legaciâ— A Condition to suffer his Wife to make her Will vide antea A Condition to observe perform fullfil and keep the Will of M. D. in all Points and Articles according to the true intent and meaning thereof that then c. and D. M. by his Will bequeathed to the Poor of such a Town 10 l. and to J. S. 3 l. The Defendant pleads he had paid the 10 l. to the Poor and as to the 33 l. he is and always was ready to pay the same to the said J. S. if he had demanded it a good Plea for this Obligation the Condition of which being general to perform the Will hath not altered the nature of the payment of the Legacy but the same remains payable in such manner as before upon request 1 Leon. p. 17. Fringe and Lewis A Condition to find J. S. till he come to the Age of 21 years sufficient Meat Drink and Apparel he pleads he had found sufficient Meat Drink and Apparel all the time at W. it s good though he alledge it generally and Issue was taken upon the Apparel for he durst not take Issue upon all the things for the doubleness 12 H. 7.14 A Condition to have free ingress egress and regress he pleads he had ingress â—egress and regress and saith not frank male Bar Latch 47. Climson and Pool A Condition to have all the Debts and that the Defendant should not release any in a certain Schedule mentioned the Defendant pleads performance generally but doth not set forth the Schedule he should have shewed what were the Debts mentioned and then have averred performance de omnibus singulis quod non relaxâ—vit Qu. 1 Keble 680. Barcroft and Doughty A Condition If the Defendant should make composition with one E. for Lands c. then he should pay the Plaintiff 30 l. The Defendant pleads he made no composition the Plaintiff replies that the said E. did grant unto the Defendant a Rent-charge of 5 Marks in Fee in satisfaction of his Title c. which the Defendant did accept c. and so he made composition the Defendant protestando E. non concessit c. pro placito c. that the Defendant did not accept it in satisfaction c. a good Plea it s no composition without consent which depends upon the acceptance Hob. p. 178. Earle and Tuck A. bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make and that the Defendant did not observe it the Defendant pleads that the King and his Councel did not make the Decree no Plea Marsh Rep. 78. Smithson and Simpson Expositions and Constructions of a Condition I shall now shew how Conditions are to be expounded and construed by some special Rules and Cases and what shall be intended a good performance Et vide supra sparsim sub multis titulis Sometimes Conditions must be performed according to the very Words and Circumstances A Condition to stand to the Award of J. S. so as the said Award be made in Writing indented under his Hand and Seal the Award shall not bind if it be not indented though it be under Hand and Seal 1 Rolls Abr. 409. Holmes and Hoâ— Vid infra plus tit Pleadings Where a Man is to plead according to the express Words of the Condition If the Condition be performed in substance it is good though it differ in words Where one is bound to deliver the Testament of the Testator if he pleads he hath delivered Literas Testamentarias it is good 7 E. 4.3 When the Condition is to make a Feoffment Lease and Release is a good performance 17 E. â— 3 Though this be a collateral Condition yet it is well performed for it amount in Law to a Feoffement Co. Lit. 207. a. If the Covenant be to grant the Reversion of the Tenant for Life or Years and he enters upon the Lessee and makes a Feoffment and the Lessee re-enters the Condition is performed for the Effect is performed 1 Rolls Abr. 426. The Condition is to give Licence to the Obligee to carry Trees c. and he gives him Licence the Condition is performed though a Stranger who has Right disturbs him for this extends but to the person of the Obligor by these words 18 E. 4. 20. b. Aliter if the words had been he shall have Licence But it must be performed in substance exactly and not in shew for the performance of a Condition ought to be true full and effectual according to Goodal's Case 10 Rep. And not illusory Lit. Rep. 130. Brockhams Case A Condition is to retract such a Suit a Discontinuance of this is no performance because it differs in substance for a Retraxit is a Bar in another Action and so is not a Discontinuance 20 E. 4.8 Aliter in Case of an Award as if it be awarded he shall withdraw his Suit Discontinuance is a good performance of the Award for the intent of the Arbitrator was not that he should make a legal Retraxit but prosecute the Suit no farther 21 E. 4.38 Improper words shall not vitiate a Condition words by which the intention of the parties may appear are sufficient to make the Condition of a Bond. A Condition to stand to an Award ita quod the Award be made on or before c. but if the Arbitrators shall not agree upon the Award that then they shall choose and elect an indifferent Man and they shall stand to his final end c. Per Cur. the Condition is good enough though not so properly expressed And that the Defendant had forfeited his Obligation for Non-performance of the Award of the Umpire and though such construction will prejudice the Defendant and Conditions being for the benefit of the Defendant shall be construed favourably yet the Law may not be altered But no intention of the parties shall be construed contrary to the express words 39 H. 6.10 a. The Condition was that if the Defendant do not pay so much Mony the Obligation shall be void it was naught though the intention was he should pay the Mony 1 Sanders 66. Bâ—er and Wigg The Condition was to appear c. and the Conclusion was then the Condition of this Obligation shall be void and so no words to make the Obligation void but per Cur. It is a good Condition though these words â—id been omitted 2 Sanders p. 78. Maleverer and Hawksby Conditions construed according to Intent NO intention of the parties shall
construe â—e contrary to the express wâ—ds Vid. aâ—a 9 H. 7.20.17.22 Conditions ought to be construed according to the intent of the parties if it may constare and Conditions of Obligations are not broken unless the intent be broken A Condition to appear such a day in such a Term and the Obligoâ— appears at a day in the same Term before the day mentioned in the Condition at the Suit of another Man which is 〈◊〉 appearance in Law for all Suits which shall be commenced against him the same Term yet because this is but an appearance by fiction in Law and not an actual appearance at this day the Condition is broken for peradventure had he appeared actually special Bail might have been required 1 Roâ— Abr. 426. Sir Richard Bullers Case If the Lessee of an House covenant not to lease the Shop Yard or other things pertaining to the House to one that sells Coals and after he lets all the House to one that sells Coals he had broken the Condition for he had broken the intent 1 Rolls Abridg. 427. Bonner and Langley A Condition that the Lessee shall not do any wast and the Lesse suffers the House to fall for want of covering and repairing though this is not a Feasance but only a permission yet the Condition is broken 1 Rolls Abr. 428. Qu. The Condition of the Obligation was if the said R. â— shall not at any time or times be aiding or assisting to T. E in any Actions Suits Vexations c. The Plaintiff assigns a Breach that before the Obligation he brought Trespass against the said T. E. and R. T. and that he had Judgment against both and that after the making the Obligation T. E. and R. T. brought Error Per Cur. it is no Breach for it is not the intent noâ— reason he should be barred to defend himself by joyning with T. E. against the unjust proceedings of the Plaintiff And so if after Verdict the Plaintiff had released and yet took Judgment by Execution they two might have joyned in Audits Queâ—el Hobart p. 30â— 1 Rolls Abr. 429. Lamb and Tompson This is not properly 〈◊〉 Action but a Suit to discharge him of a â—oâ—tio Action wherein they must joy A Condition if the Plaintiff might quietly take and enjoy Woods sold and if the ground where upon it groweth be four Miles distant from Rye c. then c. The Defendant pleads the Plaintiff had quietly c. and that the said Land by the next high and usual way for Carriages is 4000 Paces from the Town of Rye Per Cur. the intent was that the Plaintiff by selling that Wood should not inour the danger of the Statute of 23 Eliz. c. 4. And it ought to be pleaded that it is every way distant four Miles from Rye and not not by usual ways and the four Miles by 4000 Paces is well 2 Leon. p. 113. Mingâ— and Barl. The Condition was that if the within bounden J. L. shall happen to dye without Issue of his Body lawfully to be begotten that then if the said J. L. by his last Will or otherwise in Writing shall in his Life time lawfully assure c. The Condition being made in benefit of the Obligor shall have Construction according to the intendment of the parties to be collected out of the words of the Condition and the intention of the parties was that a Conveyance should be made by the Obligor in his Life time by his Will or otherwise of the Lands Jones Rep. p. 180. Eaton and Laughter The Condition if the Obligor pay so much then the Obligation to be void or otherwise it shall be lawful for the Obligee quietly to enjoy such Lands The Defendant pleads quiet enjoyment The Plaintiff demurs for that the Condition depends on the Payment or Non-payment and that concerning the Land is idle Per Cur. Conditions are to be taken according to the intent of the parties if it may constare but as these words then to be void are placed here it cannot refer but to that which precedes and not to the Land which ensues Regula Words in the beginning or end of things refer to all but those in the middle refer ad media tantum as Lease for Life Remainder for Life rendring Rent this goes to both Estates but Lease for Life rendring Rent Remainder for Life aliter Siderfin p. 312. Ferres and Newton In the Condition it was recited that the Sheriff had constituted the Defendant Bailiff of an Hundred within the County If therefore the Defendant shall duly execute all Warrants to him directed then c. Warrants shall only be intended Warrants directed to him as Bayliff oâ— the Hundred Horton and Day cited 2 Sanders 414. And such only as are to be executed within the Hundred And the Plaintiff must shew the thing to be done was within the Hundred Allen p. 10. Sâ—angâ—on and Day mesme Case A Condition that his eldest Son shall marry the Daughter of the Obligee and the Son lye the second Son shall not marry her that was not the intent 27 H. 4.14 When a Man is bound to do or permit a thing he ought to do or permit all which depends upon this in the performance of the thing 11 H. 4. 25. b. 1 Rolls Abr. 422. Collateral things must be done or permitted a Covenant to levy a Fine it shall be at his Costs who levies it A Man is bound to carry my Corn it is no Plea for him to say he had no Cart for he is bound by implication to provide a Cart and all other necessaries for the Carriage So to mow my Grass he must find Instruments to cover my Hall he is bound to find necessary Stuff 16 H. 7.9 A Condition that J. S. shall have ingress into his House he ought to have a common entrance at the usual Door and shall not be put to enter in by a hole backward or by the Chimny nor may the other make a Ditch before the Door If a Man hath Right to a Chamber he must not be barred of his ingress and yet the Doors ought not to stand open at Midnight If I am bound to suffer J. S. to have a Way over my Land if I lock the Gates I have broken the Condition Latch p. 47. Climson and Pool A Condition is to be performed as near as may be The Condition is that J. S. and R. G. shall come in their proper persons before such a Feast to London and to bring two Sureties to be bound with them to the Plaintiff in the Suit contained in the Obligation then c. J. S. dyes yet R. G. must do this and although 〈◊〉 Condition be not performed in the whole yet 〈◊〉 he may perform this by any possibility he must do it 15 H. 7.2 4 H. 7.3 A Condition that he or his Heir shall surrender c. before such a day to the use of the Plaintiffs Executors his Heirs and Assigns c. The Defendant pleads the
Marriage of W. N. Id. ibid. 462. A man is bound to H. to pay him 1000 l. after that he had married his Daughter and afterwards he married her and brought Debt upon this Bond and it was not averred that he had given Notice to him of the marriage but demanded the Mony Here is no need of Notice the Request seems to imply Notice P. 2 Car. B. R. Hodges and Moore If I am bound to be Attendant upon you at every time that you shall come to the Manor of D. I am bound to take Notice when you come at my peril 8 Ed. 4.1 b. Condition was where the Obligor is Lessee for years of the Obligee of certain Lands if he render back the possession of the Land at the end of the term to the Lessor his Heirs and Assigns upon request then c. and after the Lessor assigns over his Reversion the Assignee at the end of the term requests him to render back the Possession to to him He is bound to do this without any Notice given who is Assignee 1 Rol. Abr. 465. Linghen and Paine Condition to pay the Damages which shall be recovered by J. S. against him there needs no Notice 1 Rol. Abr. 468.3 Condition was to pay the Second day of May at the Defendant's House giving Thirty days warning Defendant pleads the Plaintiff did not give thirty days Warning The Plaintiff demurs First Because no Notice is requisite but surplusage the day and place of payment being certain without it Secondly If Notice be necessary the Obligor must give it to which the Court agreed 3 Keb. 222. Johnson and Muller Condition of Obligation is to acquit of several Bonds entred into c. Defendant pleads performance Plaintiff replies He was sued and retained and Attorney c. Defendant demurs for that the Plaintiff had not alledged to him particular Notice of the Suit per Cur. particular Notice is not requisite in this case because he hath taken upon him to acquit him Siderfin p. 442. King and Atkyns Where by common Intendment the thing to be paid or done cannot lye in the conusance of the Conizor there Notice is requisite A Man is bound to pay an 100 l. two Months after A. returns from Rome He ought to give Notice of his Return before A. can have an Action on this Bond for he may land at Newcastle or Plimouth Agreed per Cur. in More and Hodges p. 2 Car. B. R. If I am bound to enfeoff such persons as the Obligee shall name he ought to give Notice to me whom he will name 8 Ed. 4. Arbitrement 15. Vide pluis sub titulo Who to do the first Act. Who is to do the first Act. WHere the Obligor is to do such an Act by the direction of a Stranger he ought to procure the Stranger to give the direction Lit. Rep. 13 14. Vide suprà sparsim Kelw. p. 53. a b. One is bound to carry all the Timber in such a place before such a time and lay it in such a place by the direction of a Stranger he ought to procure the Stranger to give the direction Condition to give such a Release as the Judge of the Prerogative Court shall direct Defendant pleads Dr. L. was Judge of the said Court and quod idem Judex nec devisavit nec appunctuavit aliquam relaxationem c. secundum formam c. it s no Plea for the Judge is a Stranger to the Condition and the Condition is for the benefit of the Obligor and the performance thereof shall save his Bond he hath taken upon him to perform it at his peril and he ought to have procured the Judge to have devised it and directed it Otherwise if it had been as the Obligee or his Counsel should devise 5 Rep. 23 b. Lamb's Case Condition to levy a Fine to the Obligee he is not bound to levy it if the Obligee doth not sue a Writ of Covenant against him 5 Rep. Palmer's Case 127. 1 Rol. Abr. 458 5. 5 Rep. 22 b. Halling's Case Condition is A. shall deliver to B. a certain quantity of Hops well pick'd and that B. shall have election of them out of 204 Bags of Hops of A. of his own growth B. ought to do the first Act i. e. he ought to require A. to shew him the 204 Bags for he cannot make election without view of the 204 Bags which are in A's custody 1 Rol. Abr. 466. Brook and Booth versus Woodward March 24. id Case Condition that the Obligor being a Parson shall resign to the Obligee within a certain time for a Pension as they shall agree The Obligee must agree and tender a Deed of this to the Obligor before he is bound to resign Q. 14 H. 4.18 b. cited in 5 Rep. 21. b. What things will excuse the performance of a Condition and what not Act of God Vide supra Act of Law supr Act of the Obligee supr Acts of a Stranger REgularly If the Condition be to be performed by a Stranger and he refuse the Obligation is forfeit for the Obligor hath taken upon him that the Stranger shall do it or accept it Condition is that the Son shall marry the Daughter of the Obligee if the Daughter refuse yet the Condition is broken 1 Rol. Abr. 452. 5 Rep. 23 b. Lamb's Case A. and B. submit to the Arbitration of C. by Bond. C. awards A. to pay 10 s. to B. who tenders this and B. refuseth The Obligor is not excused for B. is not a meer Stranger but is privy 22 Ed. 4.25 b. cited 1 Rol. Abr. 452. Q. I take the Law to be otherwise Condition to assure a Copyhold to A. and B. his Wife who are Strangers to the Obligation for the Life of C. and the Obligor at the request of A. surrenders this to A. to the use of such persons as he shall nominate this is not any Performance For A. who is a Stranger may not dispense with or alter the Agreement but to do as limited in the Condition 1 Rol. Abr. 457 T. Stile and Smith Defendant is bound that his Son that is a Stranger to the Bond shall seal a Release He must seal it at his peril and shall not have time to consult it or demand it to be read if he be not Lettered himself 2 Rep. Manser's Case Suits upon Obligations How they are to be brought In respect of the persons who bring the Action against whom it is brought Action brought by a Body Politick THey must be named by the true Name of their Corporation yet if the Essential part of a Corporation be named it is sufficient in an Action As ad respondend ' Majori Burgensibus de Lyn Regis in Com' N. and it was found they were Incorporated Majores Burgenses burgi de Lyn non peraliud nomen Per Cur. The omission of this word Burgi shall not bar the Plaintiffs 1 Brownl Rep. 57. Mayor and Burgesses of Lyn versus
Weston versus Plowden Condition If the Defendant and his Wife should appear such a day at the Palace Court c. The Defendant upon Oyer pleads That he himself did appear at the day prout patet per Record ' and that he was not Married at the time of the Obligation nor ever after Per Cur. it 's no Plea for he is estopped to deny that he had a Wife Allen p. 13. Paine and Shelltrop Recital in a Bond is an Estoppel to say the contrary but if Issue be tried contrary it 's good As Non damnif pleaded in Debt on Bond with Condition to pay for Meat Drink c. The Plaintiff replies Quod hospitavit on which the Defendant takes Issue quod non hospitavit and Ruled good after Verdict 1 Keb. p. 344. Holt and Harder Debt on Bond to perform Covenants specified in an Indenture betwixt A. and B. The Defendant pleads there was no Covenants Per Cur. this being generally of all is well Contra If it were to perform any certain Covenants but the party is estopt to say there is no Indenture but he must set forth the Indenture it self But the Plaintiff shewing the Indenture if any Covenants be therein the Jury must find for the Plaintiff 1 Keb. p. 381. Brazier and Acton Condition That a Stranger shall release all his Right to the Plaintiff The Defendant pleads that the Stranger had no Right The Plaintiff demurs Per Cur. he is estopt and the Plaintiff must release whether he have Right or no 2 Keb. p. 471. Doughty and Neale Debt on Sheriff Bond to appear in B. R. according to custom at the Suit of M. in Debt The Defendant pleads there is no such custom in B. R. to appear to an Ac etiam Billa He is estopt to plead this 3 Keb. 160. Forth and Ward versus Walker Condition to pay and satisfie out of the Profits of the Coal-Mines clear The Defendant pleads there were no clear Profits The Defendant is not estopt by the Bond to plead this being general 3 Keb. p. 466. Howard and Wych Condition to pay a Legacy devised by the Last Will of J. S. The Defendant pleads it 's true J. S. did by his Last Will give the said Legacy but saith that J. S. did revoke that Last Will and after died and by the later left nothing to the Plaintiff Demurs because being intended a Bond made after the death of J. S. the Defendant is estopt by the Condition of the Bond to say there was no such Last Will especially no time of either Will being mentioned Which the Court Agreed And if the Bond were before J. S. died the Defendant hath undertaken and must pay it at his peril 3 Keb. 303. Bachwell and Barjew Mod. Rep. 113. Condition to pay Mony yearly according to the form and effect of the Indenture made between the Plaintiff and Defendant The Defendant pleads there was no such Indenture He is estopt to plead so 1 Brownl 57. Fitch and Bissye The Defendant was obliged to make an Obligation to appear in B. R. at a day prefixed in the Writ The Defendant pleads there was no day prefixed in the Writ for his Appearance He is estopt to plead thus 1 Brownl 91. Andrews and Robins If a man be bound to pay an hundred Pounds that J. S. owes to him he cannot plead that J. S. doth not owe him 100 l. Per VVilliams in Andrews's Case 1 Brownl 41. Condition to perform things for which he was bound in a Recognizance He is concluded to plead that he is not bound in any Recognizance 2 Rep. 33. Doddington 1 Rol. Rep. 83. Fletcher and Farrer Condition was That if the Defendant do not commence and prosecute any Suit in any Court Spiritual or Temporal against the said A his Wife but shall from henceforth during the Natural life of him and A. his Wife use and maintain the said A. as his lawful Wife to all intents that then c. The Defendant pleads he had not brought any Action c. after the Obligation and that before the said A. was married to him she was married to J. S. who is yet alive for which cause he cannot maintain and use the said A. as his lawful Wife Upon which he Demurs Per Cur. The material part of the Condition did consist in the first part and the Defendant having pleaded an issuable Plea to that it 's not material if he plead to the Later part or not And if his Justification be insufficient the Plaintiff ought not to have demurred upon it But the Court held the Justification good and he is not Estopped to plead the special Matter of her former Marriage because she is called Wife in the Condition for he may confess and avoid it For she may be his Wife to some purposes but not to use her as his lawful Wife Mo. N. 652. Phratt and Planner One is bound to J. S. to enfeoff him of the Manor of D. in Debt upon this Bond he shall not say he had not such a Manor of D. Aliter if one be bound to enfeoff me of all his Lands in such a County 21 Ed. 4.54 b. Pleadings IN treating on this I shall lay down some general Rules and Diversities and apply cases thereunto and afterwards speak of special Pleas as Acceptance Release Payment c. and particularly how and where Non est factum may be pleaded and also of Foreign Pleas. Though in all the precedent Cases I have had an Eye still to the Pleadings under the proper Titles and shall make reference thereto as occasion shall be As to the Rules of Pleading I shall consider Of Pleading or Performance generally and where it must be pleaded specially and particularly In what cases it must be shewed how and where performed and done Of the Certainty of Pleading and where it must be pleaded according to the express words of the Condition or Covenant and where further than the express words Of the partes Placitorum I shall observe some diversities which will better be understood in the application of the following Cases Qui bene distinguit bene docet 1. There is diversity between Pleading in the Negative and in the Affirmative 2. Between Pleading to Negative Covenants and to Affirmative Covenants 3. Between a Condition precedent and subsequent 4. Between a Condition to do a Collateral act as to make a Feoffment render Account c. and where it is to pay Mony 5. Where the Mony in the Condition is a collateral Sum and where it is parcel of the Obligation 6. Between a Condition Copulative and Disjunctive 7. Between payment or performance by or to a Stranger and payment or performance by the Obligor to the Obligee 8. Where an Obligation is void and where voidable 9. Between a delivery to the party himself and delivery as an Escrow 10. Between acts to be done by a Condition which are Transitory or Local 11. Between a Condition void against Common Law or Stature Law 12.
other Debt 2 Keb. p. 804. Street and Buckner 1 Brownl p. 47. Lovelace's Case Stiles p. 339. Brock and Vernon More N. 1147. 2 Keb. p. 804. Street and Buckner Vid. pluis Litt. p. 58. Ene's Case 5 Rep. 44. Lord Cromwell's Case cited in Higgin's Case No though a Stranger give the Bond 1 Brownl p. 71. Hawes and Birch If Issue be joyned on the acceptance and the Plaintiff be Nonsuit Q. If this Plea be such a Confession of the Action as the Plaintiff shall have Judgment Hobart p. 68 69. B. R. Lovelace and Colket Randiff and Strutt The Defendant pleads that the Plaintiff after the day of Payment and before the Writ brought did accept of a Statute-Staple for the same Debt in full satisfaction of the Obligation It 's an ill Plea for a Statute is but an Obligation of Record and cannot drown another which is not of Record Sir R. Brainthwait's Case cited in 6 Rep. 44. b. Higgin 's Case Vid. Co. Lit. 212. b. 5 Rep. 117. b. contra Payment of a lesser Sum and acceptance in full satisfaction pleaded you may either traverse the payment or the Acceptance but it s more proper to joyn Issue upon the payment Stiles p. 239. M. 1650. Boys and Cranfield Condition to pay 10 l. to a Stranger by Michaelmass The Defendant pleads payment of a lesser Sum before the day to him The Plaintiff demurs the Plea is ill as to a Stranger 2 Keb. p. 628. P. 22 Car. 2. Chapman and Win. Debt pro 43 l. The Defendant pleads 39 l. paid before the day which the Plaintiff accepted in satisfaction The Plaintiff joyns Issue Non recopit in satisfactionem The Defendant Demurs it 's ill He should have said Non solvit 3 Keb. p. 28 Car. 2. fo 629. Percival and Colthowe The Defendant pleads the Condition was to pay a lesser Sum at a day and that before the day he paid in satisfaction Per Cur. It 's an ill Plea not having demanded Oyer of the Condition 3 Keb. p. 708. Mich. 28 Car. 2. Clatch The Defendant pleads That the Plaintiff before the day accepted a lesser Sum in full satisfaction of a greater It is a good plea but then he must plead he paid that lesser sum in full satisfaction and that the Plaintiff received it in full satisfaction Pinnel's Case 5 Rep. 117. More N. 847. Penny and Cote For the manner and tender of Payment it shall be directed by him that made it I am bound to pay you 10 l. at Westminster and you request me to pay you 5 l. at the day in York and you will accept it in full satisfaction of the whole 10 l. it s a good satisfaction of the whole 5 Rep. 117. Pinnel's Case Condition is for payment of 20 l. the Obligor at the time appointed cannot pay a lesser Sum in satisfaction of the whole But if the Obligee do receive part at the day and thereof make Acquittance under his Seal in full satisfaction of the whole its sufficient for the Deed amounteth to an Acquittance of the whole Co. Lit. 212. b. Pinnei's Case 5 Rep. 117. b. If the Obligor pay a lesser Sum either before the day or at another place than is limited by the Condition and the Obligee receive it this is a good Satisfaction Ibid. Not only things in possession may be given in Satisfaction but also if the Obligee accept a Statute in Satisfaction of the Mony it s a good Satisfaction Ibid. Obligor is bound to pay 100 Marks at a day and at the day the parties Account together and for that the Obligee did owe 20 l. to the Obligor the Sum is allowed and the residue of the 100 Marks paid This is a good satisfaction tho' the 20 l. was a chose in Action and no payment was made thereof but by way of Retainer or Discharge Co. Lit. 213 c. Condition to make assurance of Lands to such uses The Defendant pleads he made a Feoffment to other uses which the Plaintiff accepted Ill Plea 1 Brownl 60. Potter and Tompson Where the Condition is for payment of Mony if the Obligee accept an Horse c. in satisfaction its good But if the Condition were for the delivery of an Horse c. there tho' the Obligee accept Mony or other thing for the Horse c. it s no performance of the Condition So a Condition is to acknowledge a Recognizance of 20 l. c. if the Obligee accept 20 l. in satisfaction of the Condition yet the Condition is broken So of all other Collateral Conditions Co. Lit. 212. b. If a Condition be to pay Mony to a Stranger if the Stranger accepts an Horse or other Collateral thing in satisfaction it s no performance of the Condition for there the Condition must be strictly performed But if the Condition be that a Stranger shall pay to the Obligee a Sum of Mony the Obligee may receive an Horse in satisfaction Co. Lit. ibid. To Debt on Bond the Defendant pleads it was agreed before the Forfeiture of the Bond for 300 l. between the Plaintiff and divers other Creditors of the Defendants that the Defendant should assure divers Lands to be sold and the Mony to be paid and he assigned several sums of Mony to them which they accepted and avers in facto that he sold the Lands to them and made a letter of Attorny to them to receive the Sums of Mony The Plaintiff demurs because the Indenture sounds in the nature of a Covenant and if so it shall not be in satisfaction being in it self no satisfaction nor pleadable in satisfaction of that Debt Also admitting it had been a good satisfaction if performed yet part thereof not being performed it s no bar to this Action Cro. Car. 193. Simonds and Mendsworth A Concord or Verbal Agreement cannot discharge a Specialty As a Condition for the performance of Covenants in Articles of Agreement The Defendant pleads an Agreement between the Plaintiff and him that he should grant 5 l. per Annum for life in discharge which Grant he made and the Plaintiff accepted Judgment pro Querente being only a Verbal Agreement Cro. Jac. fo 649. Noys and Hopgood and so Cro. Eliz. pag. 697. Hayford and Andrews If the Defendant pleads before the day of payment the Plaintiff in respect of a Trespass made by his Beasts in the Defendants Lands gave him longer day It s no Plea for an Agreement by Parol cannot dispence with an Obligation Condition to pay 40 l. on Michaelmass-Eve The Defendant pleads Concord that if he gave him an Hawk and 20 l. at Michaelmass-day the Obligation should be void and avers he did so and the Plaintiff accepted it It s an ill Plea for it appeareth for Non-payment of the Mony at the day the Bond was forfeited and so became single which cannot be discharged by such naked Averment en fait of such Acceptance But Acceptance before the day had been a good Discharge Cro. Eliz. p. 46. Anonymus Condition
upon the Bond. Per Cur ' Duty extends to the Obligation and it shall be a discharge of it Cro. El. p. 370. Rotheram and Crawley Condition to pay 71. upon the Birth-day of the Child of J. L. which God should send after the date of the Bond. This is a contingent Debt and the Condition may not be discharged and a Possibility may not be released Qu. if the Obligation may be Yelv. p. 192 Neale and Sheffield Sir H. Stile and Tho. Brooke were joyntly and severally bound to W. Tully After the day of payment incurred Tho. Brooks makes his Will and makes Mary Brooks his Wife Executrix and dies and after William Tully makes his Will and by his Will releaseth unto Mary Brooks all the Debts which Thomas Brooks her Husband did owe to him at the time of his death Per Cur. a Will cannot release a thing created by Deed and so discharge Creditors Q. Stiles p. 286. Stile and Tully Sir H. Stile could have no Relief in Chancery G. was bound to R. with Condition to pay 100 l. but this was in trust to the use of M. W. during her life and after to G. P. G. P. may not release the Bond neither in Law nor Equity during the life of M. W. But had it been to his own sole benefit it had been good in Equity Lit. Rep. 144. Ganford's Case An Obligation to perform all Covenants in a Lease The Lessor releaseth to him all demands before any Covenant broken this is no release of the Obligation Lit. p. 87. Two are joyntly and severally bound in an Obligation if the Obligee releaseth to one of them both are discharged Co. Lit. 132. c. A release of all Actions by the Obligee before the day of payment he shall be barred of his Duty for ever for it is debitum in praesenti c. and the right of the Action is in him So by a release of all demands Co. Lit. 291. b. 292. b. The Defendant pleads that the Plaintiff by Indenture c. did Covenant that he would not sue the Bond before Michaelmass Judgment si actio Cur. pro Querente it s only a Covenant and shall not enure as a Release and is not to be pleaded in bar but the party is put to his Writ of Covenant Had it been a Covenant he would not sue at all it might have mounted to a Release Cro. Eliz. p. 352. Deux and Jeffreys 1 Anders 307. mesme Case But if the Defendant pleads that the Plaintiff by Indenture shew'd Covenanted that if he paid 100 l. at c. that then the Obligation should be void and avers he paid it it s a good Plea in bar and he shall not be put to his Writ of Covenant by circuity of Action Cro. Eliz. p. 623. Hodges and Smith An Obligation bears date the 1st of May and is delivered 20 days after and the Obligee makes a Release the 2d day of May and delivers this the same day this Release is no bar of the Obligation But in this case if the Obligee will bring his Action and count on an Obligation bearing date the 1st of May and doth not say that this was primo deliberat ' the 20th day the Defendant shall bar him by the Release for that the Release was made after the first day scilicet the second And the Plaintiff shall not reply and shew the first delivery of the Obligation was the 20th day for that this is a departure for he ought to have alledged this at the beginning and so it shall be taken that the Obligation was delivered according to the purport of the Obligation 5 H. 7.27 a. J. S. was bound that J. D. the Apprentice should make an account and pay Moneys and afterward the Obligee per Deed releaseth to the Servant and not to the Obligor If the Release were made before any Forfeiture the Obligation is saved and the Release may be pleaded but otherwise if after Forfeiture because an Obligation once forfeited cannot be saved by any Act or Release made or done to a Stranger 3 Leon. 45. Anonymus Pleadings Tender Uncore prist TEnder at the day and place of the Mony and the Plaintiff refused it and the Mony brought into Court The Plaintiff joyns Issue that there is no Tender and Refusal Verdict pro Def the Plaintiff hath lost his Mony for it is a Refusal on Record and the Defendant must have his Mony out of Court Stiles p. 388. M. 1653. Benikin and Herrick If the Obligor tender the Mony at the day and place and the Obligee refuseth it In debt sur ceo Oblig ' if the Defendant pleads Tender and Refusal he must also plead he is yet ready to pay it and tender the same in Court Aliter if it were to be paid to a Stranger But if one is bound in 200 Quarters of Wheat to deliver 100 Quarters if the Obligor tender at the day 100 Quarters he shall not plead Uncore prist for they are bona peritura but the Sum of Mony is not lost per Tender and Refusal because its a Duty and part of the Obligation Where the Condition is collateral to the Obligation that is not parcel of it there Tender and Refusal is a perpetual bar and he shall not be driven to plead Uncore prist As a man is bound in 100 l. to deliver Corn or Timber to perform Award as a man is bound by Award to pay 20 l. c. Co. Lit. 207. Anders p. 4. Pannel and Neal. Dyer 1 Eliz. 167. 9 Rep. 97. Peytoe's Case Vid. Doct. placitand ' p. 389 390 391. 1 Brownl 61. If a man make a single Bond or acknowledge a Statute or Recognizance and afterwards makes Defeazance to pay a lesser Sum at a day if the Obligor or Conizor tender it at the Day and the Obligee or Conizee refuse it he shall never have any remedy by Law to recover it because no parcel of the Sum contained in the Obligation or Statute the Defeazance being made at a time after Co. Lit. 207. Vid. More N. 114. Condition to perform Covenants by a Stranger one whereof was to pay 20 l. to the Obligee The Defendant saith The Stranger tendred and the other refused ne dit Uncore prist Bon Plea 27 H. 8.1 19 H. 8.12 If one be bound that a Stranger shall make an Obligation to the Obligee it sufficeth to say that the Stranger tendered this and the Obligee refused it without saying Uncore prist 10 H. 6.16 Condition was If a Stranger paid the Mony at T. then c. He pleaded a Tender by the Stranger and saith not Uncore prist per Cur. it s no bar but if they were joyntly bound it would be well enough 2 Keb. 178 Browne's Case If Mony be tendered and none ready to receive it and after he to whom the Mony is paid demands the Mony and the other refuseth an Action is brought and Tender pleaded yet the Defendant shall pay Damages from the time