bonds.

* 172

On replevin said lord the king, before the king himself, (the said court then and still being holden at Westminster, in the county of Middlesex, the said A B by his attorney, came and defended the wrong and injury, when, &c. and well avowed the taking of the said goods and chattels in the said declaration mentioned, in a certain messuage or dwelling-house, with the appurtenances, situate and being in, &c. in the said street or place there, called, &c. and justly, &c. because he said that one L M, for a long space of time, to wit, for the space of next before, and ending on and from thence until and at the said time when, &c. held and enjoyed the *said messuage or dwelling-house, in which, &c. with the appurtenances, as tenant thereof, to the said A B by virtue of a certain demise thereof to the said L M theretofore made at and under the yearly rent of. payable on, &c. in every year, and because. part of the said sum of . of the rent aforesaid, for the space of -, ending on, &c. as aforesaid, and from thence until and at the said time when, &c. was due and in arrear from the said L M to the said A B, the said A B well avowed the taking of the said goods and chattels in the said declaration mentioned, in the said messuage or dwelling-house, and justly, &c. as for and in the name of a distress, for the said sum of 7. so due and in arrear as aforesaid, and which said sum of . so due and in arrear to the said A B, still reJudgment for mains wholly due and unpaid. And such proceedings were defendant in thereupon had in the said plea in the said court of our said replevin pro retorno ha- lord the king, before the king himself, at Westminster aforebendo.

term, in the

said, that afterwards, to wit, in year of the reign, &c. in the said court of our said lord the king, before the king himself, it was considered and adjudged in and by the same court, that the said G H should take nothing by his said plaint,(1) but that he and his pledges to prosecute should be in mercy, &c. and that the said A B should go thereof, without day, and have restitution of the said goods and chattels, &c. as by the record and proceedings thereof now remaining in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully appears.

(1) See Com. Dig. Pleader, 3 K. 8. not be inserted for "plaint."
uere, if the word "writ" should

goods.

Of all which said several premises the said G H afterwards, On replevin bonds. to wit, on, &c. at, &c. aforesaid, had notice. And the said GH did not AB in fact, further saith, that the said & H did not make a return the return of the said goods and chattels, or any part thereof, according to the form and effect of the said condition of the said writing obligatory, but hath hitherto wholly neglected and refused, and still wholly neglects and refuses so to do. Where- Whereby by the said writing obligatory became forfeited to the said E F, so being sheriff of the said county of -, as aforesaid. And the same *being so forfeited, the said sheriff afterwards, to wit, on, &c. at, &c. aforesaid, at the request of the said A B, by an indorsement, &c. [The statement of the assignment and conclusion of the declaration, are precisely the same as in the precedent, ante, 165. from the obelisk to the end.]

bond forfeited

to sheriff, who
assigns to
plaintiff.
* 173

when the

feited, by the replevin suit not being pro

secuted in the

county court.

(y)

[When the declaration is for not prosecuting the action of reple- 20. The like vin in the county court, proceed as in the last precedent, to the bond was forobelisk 170. and then as follows:] And although afterwards, to wit, on, &c. the county court of the said sheriff of the said county of was duly holden at, &c. aforesaid, before and then suitors of the said court, the same being the next county court of the said sheriff of the said county of after the making of the said writing oliga tory as aforesaid, to wit, at, &c. aforesaid. Yet the said G H did not appear at the said county court, so holden next after the making of the said writing obligatory as aforesaid, and then and there prosecute his said action with effect against the said AB, according to the form and effect of the said condition, but wholly omitted and neglected so to do. Whereby the

said writing obligatory became forfeited, &c.

[State the for

feiture and the assignment of the bond to the plaintiff, and proceed to the end, as in the last precedent.]

[Commencement as usual in debt, ante, 141.]

That whereas the said A B heretofore, to wit, on, &c. at, &c. 21. For rent demised to the said C D, a certain messuage, land and pre- (z)

(y) See 5 T. R. 195.

(z) As to debt on leases, see vol. 1. Index, tit. Debt. When it is

doubtful whether the demise were
by deed, it is advisable to declare in
the above form, stating the substance

on a demise,

mises, with the appurtenances, situate, &c. to have to hold the same to the said CD, for a certain term of years, to wit, for and during, and until the full end and term of twenty-one years, then next ensuing, and fully to be complete and ended, yielding and paying therefore, during the said term, to the said A B, the yearly rent of -. of lawful, &c. at the four most usual feasts, or days of payment in the year, that is to say, &c. by even and equal portions. By virtue of which said demise, the said CD entered into the said demised premises, with the appurtenances, and was possessed thereof from thenceforth, until and upon the feast of S. Michael the Archangel, A D. 1806, when(a) a large sum of money, to wit, the sum of →. of the rent aforesaid, for the space of —— then elapsed, became and was due and payable from the said CD to the said A B, and still is in arrear and unpaid to the said A B, to wit, at, &c. aforesaid. Whereby an action hath accrued(6) to the said A B, to demand and have of and from the said CD, the said sum of -. parcel of the said sum above demanded. And whereas also the said CD afterwards, to wit, on, &c. at, &c. aforesaid, was indebted, &c. [The form of the indebitatus count in debt, will be as ante, 142. and the subject matter of *the debt, for use and occupation, will be as ante, 8. and the conclusion will be as ante, 144.]

trator on the reddendum in a lease of lands, 1 Saund. 1, 2. And in debt for rent on the reddendum of a lease to commence in future, 1 Saund. 250, 251. and of debt for a rent charge, or annuity against the pernors of the profits, 1 Saund. 276. 282. n. 1. 1 T. R. 578. Doug. 628.

of the terms of the demise, and add-on the reddendum of a lease for tithes,
ing a count for use and occupation. 2 Saund. 296. and against an adminis-
It is settled that in debt for rent re-
served by deed, the plaintiff may de-
clare without stating the deed; (see
the precedents and notes in 1 Sattad.
276. n. 1. 202. 325. n. 4. Ld. Raym.
1503.) unless in case of a lease of
tithes, or other incorporeal heredita-
meats, 2 Saund. 207. n. 1. This is
the only ease in which the plaintiff is
allowed to declare generally, and to
produce a deed in evidenc in sup-
port of such declaration, 1 New Rep.
104. 109. When the declaration
sets out the leuse, it is similar to the
declaration in covenant for rent, ex-
cept in the commencement and con-
clusion, see post. To which preee-
dents, with the notes, the reader is
referred. See a precedent of debt

(a) It raust be shewn at what time the rent became due, Gilb. Debt, 407.

(b) In Gib. on Debt, 414. this iş said to be incorrect.

(c) This count in debt for use and occupation, is sustainable, 6 F. R. 62 and without stating the local situation of the premises, 6 East, 348, ante, 8. n. c.

23. On an an

for arrears of

For that whereas heretofore, to wit, on, &c. at, &c. by a cer- On annuity ain indenture then and there made between the said A B of deeds. the one part, and the said CD of the other part, (one part of nuity deed which said indenture sealed with the seal of the said CD, the the annuity. said A B now brings here into court, the date whereof is the (4) day and year aforesaid,) he the said C D, for the consideration therein mentioned, did grant, &c. [here set out the words of the indenture, setting forth the grant of the annuity, and then state the defendant's covenant to pay the annuity in the past tense, and proceed as follows:] As by the said indenture, reference being thereunto had, will amongst other things, more fully and at large appear. And the said A B in fact saith, that after the making of the said indenture, and during the natural life of the said E F, to wit, on, &c. at, &c. aforesaid, a large sum of money, to wit, the sum of. of lawful, &c. of the said annuity or yearly rent charge for one year, and a quarter of a year, then elapsed, became and was due and owing from the said C D to the said A B, and still is in arrear and unpaid, contrary to the form and effect of the said indenture, and of the said covenant of the said 'C D, so by him in that behalf made as aforesaid, to wit, at, &c. aforesaid. Whereby an action hath accrued to the said A B to demand and have of and from the said CD, the said sum of. being the said sum above demanded. Yet, &c. (Conclusion as ante, 144.)

For that whereas heretofore, to wit, on, &c. at, &c. by *a certain indenture then and there made between the said AB

(d) Debt is preferable to covenant, on an annuity deed, because in debt the judgment is final in the first instance. It is also more advisable to declare in debt on the covenant than on the annuity bond, because in the latter case, damages must be assessed, in pursuance of 8 and 9 W. III. c. 11. s. 8. which causes expense and delay.

(e) In general, it is more advisable to declare in debt than in covenant on a mortgage deed, because in the

former deed, the judgment is final in
the first instance, and though by de-
fault bail in error are required, Tidd,
1079. Debt on the covenant is also
preferable to debt on a mortgage
bond, conditioned as well for payment
of the money, as performance of co-
venants in the mortgage deed, be
cause in the latter case the damages
must be assessed under the 8 and
W. III. e. 11. s. 8. which creates ex-
pense and delay.

* 176 24.On a mortgage by lease and release for principal and interest. (e)

On mortgage of the one part, and the said CD of the other part, which said

deeds.

* 177

indenture, &c. (profert ut ante, 151.) After reciting as there-
in is recited, the said C D for the considerations therein men-
tioned, did grant, bargain, sell, alien, release and confirm unto
the said A B, and to his heirs and assigns, certain messuages,
lands, tenements and premises, with the appurtenances therein
mentioned and particularly described.(f) To have and to
hold, &c. (copy the habendum verbatim,) subject among other
things to a certain proviso or condition, that is to say (g) that if
the said CD, his heirs, executors, or administrators, did and
should pay to the said A B, his executors, administrators, or
assigns, the full sum of -. and lawful interest for the same,
of good and lawful money of Great Britain, on the
day

of
next ensuing the date of the said indenture, then the
said indenture should be void. And the said CD did thereby,
for himself, his heirs, executors and administrators, cove-
nant, promise and agree to and with the said A B, his exe-
cutors, administrators and assigns, that he the said C D, his
heirs, executors, or administrators, or some, or one of them,
should and would, well and truly pay, or cause to be paid
unto the said A B, his executors, administrators, or assigns,
*the said sum of. and lawful interest for the same, upon
the day and time mentioned and appointed for payment there-
of, in and by the said proviso, according to the true interest
and meaning of the said indenture, as by the said indenture,
(reference being thereunto had,) will amongst other things more
fully and at large appear. Nevertheless the said AB in fact
saith, that the said CD did not nor would, well and truly pay
or cause to be paid unto the said A B the said sum of ―l. and
lawful interest for the same on the day and time mentioned and
appointed for payment thereof as aforesaid, but therein failed and

n. 2.

(f) The premises ought not to be
stated at length, but in this concise
way, Cowp. 665. 727.
1 Saund. 233.
2 Saund. 366.
(g) The proviso is to be copied
from the deed verbatim, in the past
tense. It is not necessary to state
the premises, the habendum or the
proviso, fer as in covenant on a deed

it is sufficient to state the covenant and the breach, and the former may be stated, according to its legal effect, so the declaration in debt on a mortgage deed, may state the covenant to have been to pay the principal and interest on the day mentioned in the proviso, without stating such provise.