Second breach. ouching, and concerning the same, then that obligation, should be void, other- ON BASTARrise of force, as by the said writing obligatory, and the condition thereof will DY BONDS. nore fully and at large appear, [and then proceed as follows (z);]—And alhough the said child, whereof the said defendant so was the reputed father as foresaid, is still living, to wit, at, &c. (venue) aforesaid; yet the said defen- Breach. lant hath not, from the time of the making of the said writing obligatory, fully and clearly indemnified and saved harmless as well the above-named, &c. negative the words in the condition, and proceed as follows :]—but he said defendant hath hitherto wholly neglected and refused, and still negects and refuses so to do; and by means thereof the said G. H. I. K., Ľ. M., and N. O. after the making of the said writing obligatory, and whilst hey were churchwardens and overseers as aforesaid, to wit, on the day and year first aforesaid, and on divers other days and times afterwards, were orced and obliged to, and did necessarily lay out and expend divers sums of noney (a), in the whole amounting to a large sum of money, to wit, the um of. in and about the birth, maintenance, and education of the said [*442 ] child, to wit, at, &c. (venue) aforesaid. And the said plaintiffs, for assigning a further breach of the said condition of the said writing obligatory, according to the form of the Statute (b) in 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 dam (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 said writing obligatory, to wit, on, &c. at, &c. the child with which the said E. F. was so pregnant, and whereof the said defendant was such reputed father as aforesaid, was born and is still living, to wit, at, &c. aforesaid." (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 (c) The day the churchwardens and overseers (d) The amount of the penalty of the bond. (e) The penalty; as to this conclusion, see 2 Saund. 187 c. ON BASTAR age of the said plaintiffs, as overseers as aforesaid, ofl. (ƒ) and thereof they bring their suit, &c. DY BONDS. Pledges, &c. ON ANNUI TY BONDS. On an annuity 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 -1. (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. Yet the said defendant (although often requested so to do) hath not as yet paid the aid 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 107. (i), and therefore he brings his suit, &c. ON BOND XI. ON BOND TO REPLACE STOCK. [Set out the bond and condition, as directed, ante, 440, and then proSTOCK, &c. ceed as follows:]-Yet the said plaintiff in fact saith, that the said defendOn a bond ant hath not, at his own proper costs and charges, transferred, or caused or stock and procured to be transferred, unto or to the account of the said plaintiff, in pay divi- the books of the said governor and company of the Bank of England, the said dends (k). sum ofl. share or interest in the said joint stock of -l. per cent. consoli to replace Second breach. dated bank annuities, but hath hitherto wholly neglected and refused so to do, and the said sum of 7. 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 -. so remaining (f) The sum here inserted is merely nominal, to cover damages for the detention of the debt, see 1 Saund. 58. b. (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 time 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." REPLACE untransferred and unpaid and unsatisfied as aforesaid, had remained and ON BOND TO continued standing in the books of 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 -7. 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 (7), and therefore he brings his suit, &c. *XII. ON A BOND TO PERFORM COVENANTS IN ANOTHER [ *444] INDENTURE. ON A BOND ANOTHER (m). [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, that INDENTURE the said writing obligatory was made with a condition thereunder written, that of [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 them, as in a declaration in covenant, post, and conclude thus:]-By reason of which said breaches 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. (the penalty) above demanded. Yet the said defendant (although often requested (1) Ante, 442, n. (ƒ ). VOL II. (m) See the form in 1 Saund. Rep. 58 b. 43 TO PER ON BOND So to do) hath not as yet paid the said sum of -l. above demanded, or any FORM COVE- part thereof, to the said plaintiff, but hath hitherto wholly neglected and reNANTS, &c. fused, and still neglects and refuses so to do, to the damage of the said plaintiff of £10, and therefore he brings his suit, &c. [ *445 ] ON BAIL *XIII. ON BAIL BONDS. Ellenborough. Pledges, &c. On a bail bond by the assignee against the princi (0), in next after Term, 1 Will. 4. (to wit,) (p) A. B. assignee of E. F. esq. sheriff (9) [or "late sheriff"] of the county of according to the form of the Statute (r) in such case made and provided, complains of C. D. 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 A. B. as assignee, as aforesaid, the sum where the ofl. (the penalty) of lawful money of Great Britain, which he owes to (s) and unjustly detains from him. For that whereas the said plaintiff, heretoB. by balls fore, to wit, on, &c. (t) in the year of the reign of our said lord the now king, sued and prosecuted out of the court of our lord the now king be[446] fore the king himself (u), at Westminster (w), in the county of Middlesex, against the said defendant (x), [or, if the declaration be against one of the first suit was in K. (n). (n) See other forms, post, 450, &c.; Morg. 496; 2 Rich. C. P. 248; 5 Wentw. 474; 1 Rich. C. P. 455; 7 Wentw. Index, 530, 1, and on a bail bond on an attachment out of Chancery. 2 Marsh. 280. This action, whether in the name of the sheriff or the assignee of the bond, must be brought in the court from which the process in the original action issued, 2 Saund. 61 b.; 8 T. R. 152 acc.; 1 H. Bl. 631. cont. (Vide Haswell v. Bates and Lansing, 9 Johns. Rep. 80; 12 Johns. Rep. 459,--where actions on bail bonds, taken in inferior courts, the process of which was insufficient to reach all the parties to the bond, were sustained. The defendant cannot take the objection under the plea of non est factum, 2 Campb. 396. An attorney, by entering into a bail bond in another court, waives his privilege, Barnes, 117; 3 Wils. 348; 2 Bla. Rep. 838, S. C.; 1 Hen. Bla. 631. If the action be by the sheriff, it is usual to declare as on a common money bond, as ante, 435. (0) If the bond was assigned after the first day of Term, the declaration must be entitled specially, or will be demurrable, 1 T. R. 116; 7 T. R. 474; Ante, 12, n. (a). (p) The venue is transitory, Fortesc. 366; Stra. 727; Ld. Raym. 1455. (q) In Middlesex the two officers constitute only one sheriff, and the declaration would be demurrable, if they be described as sheriffs. Bac. Abr. Sheriff, K. 162; 2 Ld. Raym. 1135. (r) 4 & 5 Ann. c. 16. s. 20. See the constructions thereon in 2 Saund. 58 a. b. note 3; Tidd, 9th edit. 297 to 801; 3 Bla. Com. 290. (s) Although the action is by an executor of the assignee, it may be in the debet and detinet, 1 Selw. N. P. 570. (1) This may be the teste of the writ, or the day it is actually issued, but the first is preferable; and see infra note (i). A bill of Middlesex has no teste. (u)The court of the bench at Westminster,' means C. P. how to describe the court, see M. & S. 166; 1 J. B. Moore, 19; 7 Taunt. 271, S. C. (w) An allegation of the court being then held at Westminster, &c. is unnecessary, and if the writ be stated to be sued out in vacation, and not under a videlicet, would render the declaration demurrable, 5 Burr. 2586; 3 T. R. 184. 1 Saund. 300 b, n. 7; but not so if stated under a videlicet, 5 J. B. Moore, 538. 2 B. & B. 659, S. C. (x) The name of the person against whom the writ is stated to have been issued must be stated accurately, 2 Campb. 270; 1 Id. 14; 2 Esp. 72; 1 D. & R. 551. Where it was averred, that by a writ of latitat the sheriff was commanded to take one "F. J. by the name of J. J." an examined copy of the latitat was given in evidence, commanding the sheriff to take" J. J." The bail bond was signed by the principal, "F. J. arrested by the name of J. J." and the plaintiffs offered to prove that this person was their debtor, whom they intended to hold to bail. Lord Ellenborough said, "The writ must speak for itself. I cannot hear that, instead of A.,B. mentioned in the writ, it was meant that the sheriff should arrest X. Y." and the plaintiffs were nonsuit BONDS. bail, say against "one G. H."] a certain writ of our said lord the king (y), ON BAIL called a latitat, directed to the sheriff of (z), [or, if a bill of Middlesex, say "a certain precept (a) called a bill of Middlesex whereby the sheriff of Middlesex was commanded to take, &c."] by which said writ our said lord the king commanded the said sheriff to take the said defendant if he should be found in his bailiwick, and him safely keep, so that he might have his body before our said lord the king, at Westminster, in the county of Middlesex, on (b) next after to answer unto the said plaintiff of a plea of trespass (c), and also to a bill of the said plaintiff against the said defendant, for £- upon promises, according to the custom of his said majes- [ *447 ] ty's court, before his majesty to be exhibited, and that the said sheriff should then have there that writ [or if a bill of Middlesex, say "precept."] Which Indorsesaid writ, [or if a bill of Middlesex, say "precept,"] afterwards and before ment for the delivery thereof to the said sheriff of the said county of, to be executed as hereinafter mentioned, to wit, on the (d) day of, in the year aforesaid, to wit, at, &c. (venue) aforesaid, was duly marked and indorsed for bail for £-(e) according to the form of the statute in such case made and provided (f); and which said writ [or, if a bill of Middlesex, Delivery say "precept,"] so indorsed, afterwards, and before the said return thereof, to the sheto wit, on the -day of in the year aforesaid (y) to wit, at, &c. riff. (venue) (h) was delivered to the said E. F. who then and from thence until and at and after the time of the arrest, and the making of the writing obligatory hereinafter mentioned, was sheriff of the said county of in due form of law to be executed. By virtue of which said writ, [or "precept"] The arthe said E. F. so being sheriff as aforesaid, afterwards, and before the said rest. ed; Scandover v. Warne, 2 Campb. 270; Wilks. v. Lorek, 2 Taunt. 399. Where the declaration stated that the sheriff was commanded to take the said defendant Thomas Atwood to answer the plaintiff of a plea of trespass, "and also to a bill of the said plaintiff against the said defendants," it was holden to be clearly defective, but the court gave leave to amend on payment of costs. 1 D & R. 551. Where a latitat against D. and two others, was stated as a latitat against D. and John Doe, it was ruled no variance. 1 T. R. 238. (y) Where in an action for an escape, the plaintiffs declared on a writ of the king, and the writ produced in evidence was a writ of George the Third, but tested in the name of Best, C. J. and indorsed with the date of 1826, being in the reign of George the Fourth, it was held no variance, 4 Bing. 278. (z) It may be stated to have been directed to the sheriff by name, 2 Campb. 525. (a) A bill of Middlesex should be described as a precept,-2 Stra. 1069. (b) The return must be stated accurately, 2 Chit. Rep. 624. (c) Quære if it be necessary to refer to more of the writ than the ac etiam, see 5 J. B. Moore, 538; 2 B. & B. 659, S. C. it. (d) The date of the indorsement or about (c) Ta Williams v. Sheriff of Middlesex, at Guildhall, A. D. 1817, 25th July, before Abhott, J. in an action for an escape, the declarations stated the writ to have been indorsed for 241., but the writ produced was indorsed "241. (f) 12 G. 1. c. 29. It has been usual till of (g) This day is not material; it is usual to insert the date of the bail-bond, so as to avoid an unnecessary statement of different days. (h) The venue in the action bail. |