Sidebilder
PDF
ePub

On bonds for there was not, nor is there any negative or disjunctive cove
performance
of covenants.
nant or agreement contained or specified in the said indenture,
in the said condition of the said writing obligatory mentioned,
on the part and behalf of the said CD to be omitted, done,
observed, performed, fulfilled or kept, and that he the said CD
hath well and truly performed, fulfilled and kept, the said last-
mentioned indenture, and all things therein contained, on his
part and behalf to be observed, performed, fulfilled and kept,
according to the true intent and meaning thereof. And this,
&c. [conclude with a verification, as ante, 422. sixth prece
dent.]

Performance specially.

Excuseof performance.

* 485

See the precedents, 1 Saund. 145, 146. 3 Wils. 383. and 5 Wentw. 537, 538. The form of this plea is precisely similar to the four preceding precedents, except in the mode of sta ting the performance, which must necessarily be according to the fact of each particular case, and may be in substance, as in the precedents above referred to.

[After craving oyer of the bond and condition, and setting out the latter, and pleading actio non, as ante, 460.] and if the bond be conditioned for the performance by the *defendant of covenants in an indenture, &c. stating such indenture, pleas of this nature, state the matter of excuse for the defend ant's non-performance, and conclude with a verification, see the precedent, 1 Saund. 100. of a plea to debt on bond, condi tioned to account for monies, &c. that no money, &c. came to the defendant's hand, and see 3 East, 485. where the death of one of several obligees was pleaded to debt on a bond to account for monies received by the defendant for the deceased and the other obligees; the following plea of non-performance by the plaintiff of a condition precedent, may serve as a general precedent, as to the mode of arranging the different allegations.

1

frequently been adopted in practice
where the indenture referred to in
the condition, is very long. If there
De a negative or disjunctive covenant,
the plea may state, that the indenture
contained the same, and aver that

there were no other such covenants,
and shew performance thereof, and
conclude as above, stating the general
performance of the affirmative cove
nants.

[merged small][merged small][merged small][merged small][ocr errors][ocr errors]

of covenants.

mance by plaintiff of a condition precedent.

[Actio non, after craving oyer of the bond and condition, and On bonds for setting out the latter, as ante, 460. or if the bond be conditioned performance for the performance of covenants in an indenture, and the plain- Non-perfortiff have neglected to perform a condition precedent therein, then set forth the indenture, and the reference thereto as in the precedent, ante, 483. and then state the plaintiff's non-performance as follows:] And the said CD as to the said covenant in the said indenture contained, that he the said CD would, during the continuance of the said demise, repair, and keep in repair, the said demised premises with the appurtenances, being allowed timber in the rough, sufficient and proper for such repair, from time to time to be provided and set out by the said A B, his heirs and assigns, (this is to be according to the words of the particular covenant qualified by the condition precedent,) the said CD saith. that at the time of the making of the said demise, the said premises were ruinous, prostrate, and in great decay, for want of needful and necessary reparation and amendment thereof, and that after the making of the said indenture, to wit, on the day of -> A. D. -, at, &c. aforesaid, there was need and occasion for a large quantity, to wit, loads of timber in the rough, to repair the said demised premises with the appurtenances; and the said CD then and there requested the said A B to allow to him the said CD timber in the rough, sufficient *and proper for the repair of the said demised premises with the appurtenances, and to provide and set out the same accordingly, yet the said A B did not, nor would, when he was so requested as aforesaid, or at any time before or since, allow to him the said C' D, timber in the rough, sufficient or proper for the repair of the said demised premises with the appurtenances, or provide or set out the same, but then and there wholly neglected and refused, and hath thence hitherto wholly neglected and refused so to do, to wit, at, &c. aforesaid. And the said CD further saith, that he the said CD hath always, since the making of the said writing obligatory, well and truly observed, performed, fulfilled, and kept all and singular other the covenants, articles, clauses, provisoes, payments, conditions and agreements, in the said indenture comprised and mentioned, which on the part and behalf of him the said C D, and his assigns, were or ought to be observed, performed, fulfilled or kept, according to the true

486

On leases and intent and meaning of the said indenture. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

demises.

No rent in arrear.(c)

Eviction. (d) * 487

Plea by lessee that he assign

[Actio non, as ante, 421. first precedent.] Because he says, that no part of the said rent in the said declaration mentioned, is in arrear or unpaid in manner and form as the said A B hath above in his declaration in that behalf alleged, and of this he the said CD puts himself upon the country, &c.

[First plea, nil debet,(e) as ante, 459. 2d plea, actio non, as ante, 421. third precedent.] Because he says that the said *A B after the making of the said indenture, and before any part of the said rent in the said declaration mentioned, became due and payable to the said A B, to wit, on, &c. with force and arms, &c. entered into and upon the said demised premises, and then and there ejected, expelled, put out, and amoved the said CD from the possession thereof, and kept and continued him the said CD so ejected, expelled, put out, and amoved from thence hitherto, to wit, at, &c. aforesaid. And this, &c. [conclude with a verification, as ante, 422. sixth prece Hent.]

[ocr errors]

[Actio non, as in 1st or 3d precedent, ante, 421.] Because ed the term to he says, that after the making of the said demise in the a third person said declaration mentioned, and before any part of the said rent in the said declaration mentioned became due and payable, to wit, on, &c. at, &c. he the said CD by a cer

whom the

plaintiff accepted as temant.(f)

(c) This plea is sufficient in debt for rent, though not so in covenant, Cowp. 588. The above precedent is the form of the plea adopted in that

case.

(d) See the precedent and note,

1 Saund. 204. n. 2.

(e) This plea sufficient, though the demise were by deed, 2 Saund. 297. n. 1. 2 Ld. Raym. 1503. As to this plea in general, see 1 Saund. 204. n. 2. In debt for rent, an eviction may be given an evidence under the general issue, but in covenant it

must be pleaded, 1 Saund. 204. n. 2

(f) See the precedents, 2 Saund. 297, 298. 7 Wentw. 625. Where rent has been accepted of an assignee, the lessee cannot be sued in debt, but only in covenant, if the demise were by deed; or in assumpsit, if the demise were by parol, ante, vol. 1. page 106. 1 Saund. 241. 2. n. 5. It should be shewn in a plea that the assignment was signed according to the statute of frauds, 1 Saund. 276, n. 2. 2 Saund. 297. n. 1, 2. Sir T. Raym. 451.

[graphic]
[ocr errors][merged small][merged small][merged small][merged small][merged small][ocr errors]

tain indenture of assignment by him then and there made, and duly signed by him the said C D, and sealed with his seal, for the considerations therein mentioned, did bargain. sell, assign, transfer, and set over all the right, title, interest, term of years then to come, and unexpired property, claim and demand whatsoever, of him the said C D, of, in, and to the said several demised premises with the appurtenances; by virtue of which said indenture of assignment, the said G H, afterwards, to wit, on, &c. last aforesaid, entered into the said demised premises, with the appurtenances, and became and was thereof possessed for the residue of the said term then to come therein and unexpired, whereof the said A B, on, &c. last aforesaid, had notice; and the said C D further saith, that the said A B, after the entry of the said G H into the said demised premises, with the appurtenances under and by virtue of the said assignment, to wit, on, &c. at, &c. aforesaid, did accept and receive of and from the said G H a large sum of money, to wit, the sum of. for the rent aforesaid, in form aforesaid reserved and then made payable, and then and there accepted the said G Has his tenant of the said demised premises, with the appurtenances. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

[First plea, nil debet, as ante, 459. 2d plea, actio non, as ante, 421. third precedent.] Because he says, that after he the said CD became assignee of the said demised premises as in the said declaration mentioned, and before any part of the said rent in the said declaration mentioned, became due and owing to the said A B, to wit, on, &c. at, &c. aforesaid, he the said CD by a certain indenture of assignment, then and there made, and duly signed by him the said C D, and sealed with his seal, for the considerations therein mentioned, did, &c. [state the assignment to the third person and his entry, as in the last precedent, and conclude with a verification, as ante, 422. sixth precedent.]

On leases and demises.

* 488

Plea by an assignee that he assigned over his interest,

before any rent became due.(g)

[blocks in formation]

488

On recogni

sances.

Nul tiel record. (h)

* 489

[blocks in formation]

CD And the said C D, by

ats.

4 B. fends the wrong and injury, when, &c. and says, that his attorney, comes and dethere is not any record of the said supposed recognisance (or if in debt upon a judgment, say, " of the said supposed recovery") in the said declaration mentioned, remaining in our said court of our said lord the king, before the king himself, (or in C. P. " in the said court of our said lord the king of the bench,") in manner and form as the said A B hath above in his said declaration alleged, and this be the said C D is ready to verify; wherefore he prays judgment if the said A B ought to have or *maintain his aforesaid action thereof against him the said CD, &c.

[Actio non, as ante, 421. first precedent or third precedent.] Because he says that after the recovery of the said judgment, as in the said declaration mentioned, and before the exhibiting of the bill of the said A B, against him the said C D in this behalf, (or if in C. P. or by original," before the commencement of this suit,") there was no writ of capias ad satisfaciendum, sued or prosecuted out of the said court of our said lord the king, before the king himself, (or " of the bench aforesaid,") against the said C D upon the said judgment, and duly returned in the said court,(k) as according to law, and the custom of the said court from time immemorial, used and approved of in the said court, before the commencement of this suit, there ought to have been. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

[Actio non, as ante, 421. first precedent.] Because he says that after the recovery of the said judgment in the said declaration mentioned, and before the return of any writ of

(h) See the precedents indexed, 7 Wentw. 631.

(i) See the precedents indexed, 7 Wentw. 631.

cessary, or perhaps correct; it is, however, usually inserted.

(7) See the precedents, 7 Wentw. 631. 2 East, 312. 4 T. R. 587. 1 Wils. 334. If the principal died after the return of the ca. sa, and before the return is filed, the bail are fixed, 6

(k) The filing is not material.
What follows after this allegation, ex-
cept the conclusion, being an
ment of matter of law, is not ne- T. R. 284.

aver

« ForrigeFortsett »