Jurisdictions, Part 163 – Part 164
Obligation.
Here I intend to ſhew to you how the Condition of Obligations ought to be pleaded, performed.
WHere one pleads Conditions performed, and his Plea is in the Affirmative, he ought to plead in certain, as where the Condition is to diſcharge the Obligee, it is no plea to ſay, that he hath diſcharged him, but he ought to plead now he hath diſcharged certainly; 5 H. 7. f. 8. & 6 H. 7. f. 5.
But if the Condition be to ſave him without damage, to pleade in the Negative, (he was not …amnified) is good; 7 H. 4. f. 13.38 H. 6. f. 14. & 10 H. 7. f. 13.
By Huſsey, if Condition be to ſave the Plaintiff harmleſſe, to plead (he was not damnified) is good: but it the Condition be to diſcharge or acqui… him, he ought to plead how ſpecially he hath acquitted and diſcharged him; 22 Ed. 4. f. 43.35 H. 6. f. 13. & 40 Ed. 3. f. 20.
If the Condition be, that if the Defendant acquit the Plaintiff againſt J. S. and he pleads that J. S. releaſed to the Plaintiff at his requeſt, and this is a good Acquittall, 1. H. 7. f. 30.
Condition was to diſcharge a Sheriff, it was held clear, that the Defendant ſhall ſay generally, that he hath diſcharged him, without ſhewing how, for he cannot ſhew ſpeciall diſcharge, where there was no Charge, I ſuppoſe this was, for that it was infinito… ▪ … Ed. … f. 10. & 21 H. 7. fol. 30.
Condition that if he keep J.S. diſcharged of all Eſcapes of all Felone in ſuch a Priſon, the Defendant ſaith, there were but two Priſoners, that is, J.S. and R.K. and that he was not damnified, and a good Plea.
If the Condition be to gather all the green Wax of the County, the Defendant may plead generally that he gathered all, without ſhewing ſpecially what that is, for that, that it is infinite, 2 H. 7. fol. 15.
If Condition be that if the Defendant ſerve the Plaintiffe, without abſence for ſeven yeares (ſpeciall licenſe excepted) the Defendant may plead that he hath ſerved the Plaintiff this ſeven yeares; and not abſented himſelfe (ſpeciall licenſe excepted) and it is good, for it may be he hath licenſed him diverſe times, and he need not ſhew all, 6 Ed. 4. fol. 2.
If the condition be, that if the Defendant finde ſufficient Meat, Drink, and Apparrell to one, till he be of the age of twenty foure yeares, it is a good Plea to ſay, that he hath found him, Meat, Drink, and Apparrell ſuſhcient at D. for all the time aforeſaid, without ſhewing in ſpeciall what Meat, and what apparrell, and the Plaintif takes Iſſue, that he did not finde to him ſufficient Apparrell: And took not Iſſue upon all for doubleneſſe, 12 H. 7. f. 14.
If condition be, that if the Defendant ſhall not prove that J.S. was not preſented and inſtituted to the Church of D. that then, &c. The Defendant may ſay that J.S. was not inſtituted, and it ſeems good, for the condition is negative, and therefore it ſufficeth to ſay as above in the negative. The ſame Law is if the condition were, that if the Defendant prove that he oweth nothing to the Plaintif, it ſufficeth to ſay he owes nothing: The ſame Law is, if the condition be, that if I prove my Wife not guilty of ſuch a Treſpaſſe, it ſufficeth to ſay that ſhe is not guilty, 15 Ed. 4. fol. 25.
If the condition were, that if he prove within one year, that it was the will of J.S. to ſay that J.S. made this Will, which he brought to the Plaintif within one year written, is not good: But by 3. Juſtices, proof of that by two Witneſſes to plead that, is good, though it be not by Jury, 10 Ed. 4. fol. 11.
If the condition be, that if he do not enter and claime the Houſe, the Defendant may plead that he did not enter nor claime that, and the Plaintiff ſhall ſay that he claimed and ſhew the manner of that, 4 H. 7. f. 13.
Condition, if the Defendant make an eſtate to the Plaintif before P. as it ſhall be demiſed by the Councell of the Plaintif: The Defendant may plead that, the Councell gave no adviſe, or no adviſe was given by Councell, and good in the negative, and the Plaintif then in the affirmative cannot ſay that the Councell did give adviſe, but he ought to ſhew certainly who was of his Councell, and ſay certainly what adviſe was given, 6 H. 7.3. & 11 H. 7.23. accordingly.
Condition to pay all the ar…erages, of all the Lands which he holds of the Plaintiff in D. it is no Plea that he hath payd all generally, but he ought to ſhew ſpecially to what ſum, for that, that it is in the affirmative, 20 H. 6. fol. 33.
Condition to pay a Leſſer ſum at the Feaſt of P. If the Defendant plead that he hath paid it, he ought to plead what day he paid it, 46 Ed. 3.29. & 47 Ed. f. 13.
Condition, that if the Defendant carry all the Thorns out of the Land let to him by the Plaintif, the Defendant may plead generally, that he hath carryed all, for that, that it lies in notice of the Plaintif, and the Plaintif ſaith, that ſo many were, which were not carried. But if the condition were to infeoff the Plaintif of all the Land, of which the Father of the Defendant died ſeiſed, or to give to him all the Money in his purſe, there he ought to plead how much that was, for that, that it is in the affirmative, and it lieth more in the knowledge of the Defendant then in the Plaintif, 12 H. 8. fol. 7.
Debt by the Sherif upon an obligation, the Defendant ſaith it was indorced upon condition, and ſaith, he hath, performed all the condition, and it is a good Plea: And the Plaintiff, that he hath not accounted, and that is no Plea, but that, ſuch a thing came to his hands for which he hath not accounted, that the Iſſue may be upon certainty, 2 R. 3. f. 17.
If the condition be to perform all the Covenants in an Indenture, the Defendant cannot plead that he hath performed all generally, but he ought to plead how ſpecially he hath performed every Covenant, 26 H. 8.6.11 Ed. 4.12. 13. H. 7.18. and, 6 Ed. 4. fol. 1. But at this day it is uſed in the ſame caſe, in debt upon an Obligation endorced to perform the Covenants in Indentures, that the Defendant recits the Indenture, and in the end he pleads, that he hath generally performed all the Covenants. And then the Plaintiff ought to ſhew breach in one, and upon that Iſſue is taken.
If condition be, to ſtand to the award and abitrement of certain Perſons: it is no Plea for the Defendant to ſay, that he had no notice of any Award, but if it were (ſo that it be delivered to the parties in writing) the Defendant may plead that no Award was delivered to him in writing, 1. H. 7. f. 5.
If condition be, that if the Defendant ſhall ſtand to the Arbitrement of J.S. the Defendant may plead that he hath not made any Award, and the Plaintiff ſhall ſay, that he hath made one, and ſhew what it is, 2 R. 3. f. 13.
Pleading by Name.
REverſion is deviſed, by the name of all Lands and Tenements in D. and good, 34 H. 6. f. 6.
Leaſe is made of his Lands in Bodehill, and by ancient evidences, parcel of that is in D. he may plead his leaſe and give in evidence, that all was let by the name of Bodehill, 20 Ed. 4. f. 9.
Where Margery and her Husband levied a Fine by the name of Margaret, and the Tenant may plead that Margaret by the name of Margery acknowledged the Land by Fine. And alſo it is that Agnes by the name of Ann levied a fine, Fitzh. f. 97. A
One cannot give Land by the name of the Oſhee of the Forreſt, 10 H. 7. f. 17.
That J.S. by the name of J.D. in grant is good, and by the name Haſtings, Haſting, 9 Ed. 4. fol. 43.
Obligation was J. Boſon and an Acquirtance J. of Bozon with a (z) and this was pleaded to be made by name, 14 H. 4. fol. 30.