STATING CONDI- breaches for the replication, (as may be done, 8 T. Rep. 255.-2 Chit. ON BONDS Rep. 298.-2 Saund. 187 a.) (1) because the defendant in rejoining to the replication can only present one answer to each breach, whereas, in pleading to the declaration and breaches stated therein, he may answer each breach by any number of pleas. If the condition and breach of a bond within the above Statute of William 3. be not stated in the declaration, and the defendant plead any plea on which the plaintiff might at common law have taken an issue in his replication without showing a breach, such as a plea of non est factum or that the bond was obtained by fraud or the like, the plaintiff may still take such issue, and must enter a distinct and separate suggestion of breaches under the Statute, but he cannot incorporate such issue and such suggestion in one and the same replication, see 8 T. R. 255.-1 Esp. 277. -5 M. & S. 60.-5 J. B. Moore, 198. If to such a declaration the defendant plead a plea which made it necessary at common law for the plaintiff to assign a breach in the replication, as for instance, a plea of general performance, the plaintiff must still assign the breach in the replication, with this difference, that he may now assign several breaches under the Statute, whereas at common law he could only assign one. If only one breach be assigned in the replication, it is not necessary to state it in terms, to be "according to the form of the statute," 13 East, 1; otherwise if more than one. Before the above Statute of William 3. the plaintiff could assign in the declaration only one breach of the condition, and if he assigned more, the declaration was demurrable for duplicity, 1 Saund. 58, n. 1. It is not however necessary in a declaration assigning more than one breach, to refer to its being according to the Statute, 13 East. 1. It suffices to prove part of the breach assigned, id. *IX. BASTARDY BONDS. (to wit.) A. B. and C. D. overseers of the poor of the parish (or district, &c. as the case may be) of in the county of according (z) The action on such a bond must be brought in the name of the overseers for the time being, and not in the name of those to whom the bond was given. 54 Geo. 3. c. 170. s. 8.-3 J. B. Moore, 21. See Burn, J. tit. "Bastards," Forms, 1 M. & S. 310. Plead. A. 366. If the bond was given to the plaintiffs themselves, whether as overseers, or other A profert, or an excuse for the omission [*441] ON BASTARDY BONDS. On a bastardy bond, by the suc ceeding overseers (x). (1) Acc. Post Master General of U. States v. Cochran, 2 Johns. 413. If the plaintiff assigns breaches in his declaration, the defendant cannot plead performance generally, but must particularly answer the breaches assigned, and show when, how, and where he performed his covenants, ibid. ON BAS- BONDS. Condition of bond (y). to the form of the Statute in such case made and provided, complain of E. F. being in the custody of the marshal of the Marshalsea of our lord the now king, before the king himself, of a plea, that he render to the said plaintiff and defendant, as such overseers aforesaid, the sum of —l. of lawful money of Great Britain, which he owes to and unjustly detains from them-[If the action be in C. P. or Exchequer alter the commencement accordingly.] For that whereas the said defendant heretofore, to wit, on, &c. (date of bond) to wit, at, &c. (venue) by his certain writing obligatory, sealed with his seal, and now shown to the court of our said lord the king now here, the date whereof is a certain day and year therein mentioned, to wit, the day and year aforesaid, acknowledged himself to be held and firmly bound unto G. H. and I. K. churchwardens, and L. M. and N. O. overseers of the poor of the parish aforesaid, in the said county, in trust for the parishioners of the said parish (as in bond) in the said sum of -l. above demanded, to be paid by the said defendant to the said G. H., I. K., L. M., and N. O. Which said writing obligatory was and is subject to a certain condition thereunder written, whereby, after reciting to the effect following, to wit, that [set out the whole of the recitals, and the condition in the past tense, which is, in general to indemnify the parish, as follows :]" that A. M. of single woman, had in and by her voluntary examination, taken in writing upon oath before one of his majesty's justices of the peace in and for the said county of declared that she was with child, and that the said child was likely to be born a bastard, and to be chargeable to the said parish of and that the said defendant did get her with was after the birth, then say,]" that A. M. ofexamination taken in writing upon oath, before justices of the peace in and for the said county, had declared, that on the day of then last past, at in the parish of - in the county aforesaid, she the said A. M. was delivered of a (male) bastard child, and that the said bastard child was likely to become chargeable to the said parish of — and had charged the said defendant with having gotten her with child of the said bastard child;" it was conditioned, that if therefore the said defendant, his heirs, executors or administrators, did and should, from time to time, and at all times thereafter, fully and clearly indemnify and save harmless, as well the above-named church-wardens and overseers of the poor of the said parish of and their successors for the time being, as also all and singular the other parishioners and inhabitants of the said parish of· which then were or thereafter should be for the time being, of and from all manner of costs, taxes, rates, and assessments, and charges whatsoever, for or by reason of the birth, education, and maintenance of the said child, and of and from all actions, suits, troubles, and other charges and demands whatsoever, touching and concerning the same, then that obligation should be void, otherwise of force, Reference as by the said writing obligatory, and the condition thereof will more fully and at large appear, [and then proceed as follows (≈) ;]—And although thereto. (y) See Burn's J. tit." Bastards." (2) If the bond were given before the birth of the child, the following averment should be here introduced, "and the said plaintiff in fact saith, that after the making of the said writing obligatory, to wit, on, child ;" [If the bond single woman, in her one of his majesty's &c. at, &c. the child with which the said E. F. was so pregnant, and whereof the said defendant was such reputed father as afore said, was born and still is living, to wit, at, &c. aforesaid.” ON BAS TARDY BONDS. the said child, whereof the said defendant so was the reputed father as aforesaid, is still living, to wit, at, &c. (venue) aforesaid; yet the said defendant hath not, from the time of the making of the said writing obligatory, fully and clearly indemnified and saved harmless as well the above- Breach. named, &c. [negative the words in the condition, and proceed as follows :] -but the said defendant hath hitherto wholly neglected and refused, and still neglects and refuses so to do; and by means thereof the said G. H., I. K., L. M., and N. O. after the making of the said writing obligatory, and whilst they were churchwardens and overseers as aforesaid, to wit, on the day and year first aforesaid, and on divers other days and times afterwards, were forced and obliged to, and did necessarily lay out and expend divers sums of money (a), in the whole amounting to a large sum of money, to wit, the sum of -l. in and about the birth, maintenance, and education of the said child, to wit, at, &c. (venue) aforesaid. And [*442] the said plaintiffs, for assigning a further breach of the said condition of Second the said writing obligatory, according to the form of the Statute (b) in breach. such case made and provided, further say, that a certain person, to wit, P. Q. and R. S., the successors of the said G. H. and I. K. as such churchwardens, and the said plaintiffs, the successors of the said L. M. and O. P. and such overseers as aforesaid, after the making of the said writing obligatory, to wit, on, &c. (c) and on, divers other days and times between that day and the day of exhibiting the bill of the said plaintiffs in this behalf, were forced and obliged to, and did necessarily lay out and expend divers sums of money, in the whole amounting to a large sum of money, to wit, the sum of l. in and about the maintenance and education of the said child, to wit, at, &c. (venue) aforesaid, by means of which said premises the said several churchwardens and overseers, and the other parishioners, and inhabitants of the said parish, in the said condition named, have sustained damages to a large amount, to wit, to the amount of -l. (d) by reason of which said breaches the said writing obligatory became forfeited, and according to the said statute an action hath accrued to them the said plaintiffs as overseers as aforesaid, to demand and have of and from the said defendant, the said sum (e), above demanded; yet the said defendant (although often requested so to do) hath not as yet paid the said sum of money above demanded, or any part thereof, to the said plaintiffs, or otherwise, according to the said writing obligatory and condition, but to pay the same hath hitherto wholly refused, and still doth refuse. To the damage of the said plaintiffs, as overseers as aforesaid, of ―l. (ƒ) and thereof they bring their suit, &c. (a) As to what expenses the defendant is liable for, and how far he is discharged by bankruptcy and certificate, see Burn, J. tit. "Bastards."-3 Bing. 154. (b) 8 & 9 W. 3. c. 11. s. 8.-Before this statute, the plaintiff could only assign one breach of the condition, and if he assigned two or more, the declaration was demurrable, for duplicity, 1 Saund. 58, n. 1. It is not, however, necessary, in assigning the breach, to refer to the statute, and it is suffi Pledges, &c. cient to prove a part of the breach assigned. (c) The day the churchwardens and over- (d) The amount of the penalty of the bond. (e) The penalty; as to this conclusion, see 2 Saund. 187 c. (f) The sum here inserted is merely nominal, to cover damages for the detention of the debt, see 1 Saund. 58. b. ON ANNUITY BONDS. On an an nuity bond (g); [*443] X. ON ANNUITY BONDS. [Set out the bond and condition, as directed in the last form mutatis mutandis, and then assign the breach as follows:]-Nevertheless the said plaintiff in fact saith, that after the making of the said writing obligatory (h) to wit, on, &c. (day it fell due) at, &c. (venue) aforesaid, a large sum of money, to wit, the sum of ―l. (state enough) of the said annuity, or yearly sum ofl. for [one quarter of a year] then elapsed, became and was due and owing from the said defendant to the said plaintiff and still is in arrear and unpaid, contrary to the form and effect of the said writing obligatory, and of the said condition thereof, by reason of which said breach the said writing obligatory became forfeited, and whereby an action hath accrued to the said plaintiff to demand and have, of and from the said defendant the sum ofl., (the penalty) above demanded. the said defendant (although often requested so to do) hath not as yet paid the said sum of money above demanded, or any part thereof, to the said plaintiff, but to pay the same, or any part thereof, hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to wit, at, &c. (venue) aforesaid. To the damage of the said plaintiff of 10l. (i), and therefore he brings his suit, &c. Yet ON BOND PLACE зтоск, &c. On a bond to replace stock and pay divi XI. ON BOND TO REPLACE STOCK. [Set out the bond and condition, as directed, ante, 440, and then proceed as follows:-Yet the said plaintiff in fact saith, that the said defendant hath not, at his own proper costs and charges, transferred, or caused or procured to be transferred, unto or to the account of the said plaintiff, in the books of the said governor and company of the Bank of England, dends (k). the said sum of -l. share or interest in the said joint stock of —l. per cent. consolidated bank annuities, but hath hitherto wholly neglected and refused so to do, and the said sum ofl. share or interest in the said joint stock, wholly remains untransferred and unpaid and unsatisfied to the said plaintiff, to wit, at, &c. (venue) aforesaid. And for assigning a further breach of the said condition of the said writing obligatory, the said plaintiff, according to the form of the Statute in such case made and provided, saith, that the said defendant hath not as yet answered, paid, or made good to the said plaintiff all dividends, interest, and produce which he the said plaintiff could have received, and would have been entitled to in case the said -1. so remaining untransferred and unpaid and unsatis Second breach. (g) See ante, vol. i. Index "Annuity;" and see ante, 433, as to its being most advisable in general to sue on the annuity deed. (h) If the annuity be payable during the life of a third person, here insert the following allegation:" And during the life of the said E. F." which will be a sufficient averment of the life of the third person, 1 Saund. 235, n. 8. (i) Ante, page 442, note (ƒ). (k) See ante, 275, note, a form in assumpsit for not replacing stock. See notes, 1 Chit. Col. Stat. tit. "Stock-jobbing.” TO RE- STOCK. fied as aforesaid, had remained and continued standing in the books of ON BOND the said governor and company of the Bank of England, in the names and as the property of him the said plaintiff, but on the contrary thereof although he the said plaintiff, after the making of the said writing obligatory, to wit, on, &c. at, &c. (venue) aforesaid could have received, and would have been entitled unto certain dividends, interest, and produce, to a large amount, to wit, the sum of 7. in case the said sum of -l. had remained and continued standing in the books of the said governor and company of the Bank of England, in the name and as the property of him the said plaintiff as aforesaid, whereof the said defendant, afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, had notice. Yet the said plaintiff in fact saith, that the said defendant hath not (although often requested so to do) as yet transferred, paid, or made good unto the said plaintiff, the said last-mentioned sum of money, or any part thereof, but hath hitherto wholly neglected and refused so to do, and still neglects and refuses so to do, to wit, at, &c. (venue) aforesaid. By reason of which said breach the said writing obligatory became forfeited, and thereby an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said sum of -l. above demanded. Yet the said defendant hath not (although often requested so to do) as yet paid the said sum of money above demanded, or any part thereof, to the said plaintiff, but hath hitherto wholly neglected and refused, and still neglects and refuses to pay the same, or any part thereof, to the said plaintiff. To the damage of the said plaintiff of £10 (1), and therefore he brings his suit, &c. *XII. ON A BOND TO PERFORM COVENANTS IN ANOTHER INDENTURE. [*444] ON A BOND TO PER FORM COV- INDEN [Proceed as in the form on bonds in K. B. and C. P. ante, 436, 7, to the asterisk in each, and then as follows:]-And the said plaintiff, according to the form of the Statute in that case made and provided, says, TURE (m) that the said writing obligatory was made with a condition thereunder written, that if [set out the condition verbatim, and which may be as follows:] the above bounden defendant did well and truly observe, &c. all and singular the covenants, &c. whatsoever, which on the part of the said defendant were or ought to be observed, &c. in a certain indenture bearing even date with the said writing obligatory, and made between the said plaintiff of the one part, and the said defendant of the other part, according to the true intent and meaning of the said indenture, then the said obligation was to be void, &c. And the said plaintiff further says, that by the said indenture in the condition of the said writing obligatory mentioned, which he the said plaintiff now brings here into court, he did demise unto the said defendant all that, &c.-[Here set out the demise, and such of the covenants as have been broken, and assign breaches of (1) Ante, 442, n. (ƒ). (m) See the form in 1 Saund. Rep. 58 b. |