FOR ESCAPES. Our said lord the king (n), and by the consideration and judgment of the same court, recovered against one E. F. L.-, which were adjudged to the said A. B. in and by the said court of our said lord the king, before the king himself, for his damages, [or if in debt, see the last precedent,] by him sustained, as well on occasion of the not performing certain promises and undertakings before then made by the said E. F. unto the said A. B. as for his costs and charges by him the said A. B. about his suit in that behalf expended, whereof the said E. F. was convicted, as by the record and proceedings thereof still remaining in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully and at large appears And thereupon (0) on —— next after in- Term, in the [194] year of the reign aforesaid, the said E. F. then being personally *present in the said court of our said lord the now king, before the king himself, at Westminster aforesaid, was then and there, in and by the said court of our said lord the king, before the king himself, at the prayer of the said A. B. committed to the custody of the said C. D. then being marshal of the Marshalsea of our said lord the king, before the king himself, in execution for the damages aforesaid, there to remain until he should satisfy the said A. B. the said damages; as by the record (2) of the commitment remaining in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully appears (g). By virtue of which said commitment the said C. D. so being such marshal as aforesaid, kept and detained the said E. F. in his custody, in execution for the damages aforesaid, at the suit of the said A. B. until the said C. D. so being such marshal as aforesaid, not regarding the duty of his said office as marshal of the said Marshalsea as aforesaid, on, &c. at, &c. freely and voluntarily (r) suffered and permitted the said E. F. to escape and go at large out of the said prison and out the said custody of the said C. D wheresoever the said E. F. would, without restraint, and without the licence, and against the will of the said A. B., he the said A. B. then and still being wholly unpaid and unsatisfied his said damages and every part thereof, and the said judgment then and still being in full force and effect wholly unpaid and unsatisfied, by reason whereof an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of L.-, above demanded; yet, &c. [Conclusion in debt, as ante, 187, and praying relief, &c.]

(n) If by original these words are to be omitted.

(0) This is to be according to the language of the entry of the committitur, for which see Tidd's Prac. Forms, 131, 2.

(q) As to the necessity for this allegation, see 2 Stra. 1226. 1 Saund. 39. n. 4. 5 East. 440.

(r) Under a count for a voluntary escape, a negligent escape may be given in evidence, 2 T. R. 126. See

(p) This is usual, but not strictly the precedent in Lit. Ent. 156, where correct, see 5 East. 440.

these words are omitted.

*IV. ON SPECIALTIES.

I. ON BONDS GENERALLY. (8).

1. ON BONDS GENERALLY.

[ ⚫ 195]

4. On a money

[Commencement by bill is as ante, 13, and by original as ante, 9.] bond in K. B.

For that whereas the said C. D. heretofore, to wit, on the

-, in the

year of our Lord ———, at

day of

in the county of by his certain writing obligatory, sealed with his seal, and now shewn to the court of our said lord the king, before the king himself here, the date whereof is the day and year aforesaid, acknowledged himself to be held and firmly bound unto the said A. B. in the said sum of L.-, above demanded, to be paid to the said A. B.† (t). Yet the said C. D. (although often requested so to do) hath not as yet paid the said sum of L.-, above demanded, or any part thereof, to the said A. B. but hath hitherto wholly neglected and refused, and still neglects and refuses so to do. To the damage of the said A. B. of L.1C, and therefore he brings his suit.

of

day of

Pledges, &c.

the Common

[The commencement in C. P. is as ante, 17, and then proceed as fol- 5. The like in lows:- For that whereas the said C. D. heretofore, to wit, on the Pleas. at in the year of our Lord —— in the county by his certain writing obligatory, sealed with his seal, acknowledged himself to be held and firmly bound to the said A. B. in the said sum of L.-, above demanded, to be paid to the said A B.† (u); yet the said C. D. (although often requested so to do) hath not as yet paid the said sum of L.—, above demanded, or any part thereof, to the said A. B. but hath hitherto wholly neglected and refused, and still neglects *and refuses so to do. Wherefore the said A. B. saith, that he is injured, and hath sustained damage to the amount of L.10, and therefore he brings his suit, &c. And the said A. B. brings here Profert (x). into court the said writing obligatory, sealed as aforesaid, which gives sufficient evidence to the said court here of the debt aforesaid, in form aforesaid, the date whereof is the day and year in that behalf above mentioned.

[ 196]

[Commencement as ante, 20, after which proceed as follows:-] For 6. The like in that whereas the said C. D. heretofore, to wit, on the

(s) As to the declaration on bonds in general, see Com. Dig. Pleader. 2 W. 9.

(t) Here are usually inserted the following words: "When he the said C. D. should be thereunto afterwards requested;" but as they are not usually

day of

in the bond, they seem better omitted
in the declaration.

(u) See supra, note t.

(x) In the Common Pleas, the profert is usually at the end instead of the middle of the declaration, but this is not material.

the Exche

quer.

in the county of

1. ON BONDS in the year of our Lord -, at -, by his GENERALLY. certain writing obligatory, sealed with his seal, and now shewn to the barons of his majesty's Exchequer here, the date whereof is the day and year aforesaid, acknowledged himself to be held and firmly bound unto the said A. B. in the said sum of L.-, above demanded, to be paid to the said A. B. (y)† ; yet the said C. D. (although often requested so to do,) hath not as yet paid the said sum of L., above demanded, or any part thereof, to the said A. B. but hath hitherto wholly neglected and refused, and still neglects and refuses so to do. To the damage of the said A. B. of L.-, whereby he is the less able to satisfy our said lord the king the debts which he owes his majesty, at his said Exchequer, and therefore he brings his suit, &c.

Pledges, &c.

Several counts on different bonds may be joined in the same declaration, see the Arecedent, 1 Saund. 288, and id. note l, and Lil. Ent. 167.Com. Dig. tit. Pleader, 2 W 9.—In this case proceed as in the above precedent, to the t; and then before the breach insert the count on the other bond, as follows :-" And whereas also, the said C. D. heretofore, to wit, on, &c. at, &c. by his certain other writing obligatory, sealed, &c. [Same as the first count, ante, 195, 6, to the end, and then state- -] which said several *sums of money in the said first and second counts mentioned, amount together to the said sum of L.—, above demanded; yet the said C. D. &c. [proceed with the breach as above, to the end. There appears to be no occasion to conclude each count with the words, "whereby," c. See the precedent, 1 Saund. 288, and ante, 185. n. i.]

As to the profert, see vol. i. Index, tit. Profert.—If a bond or other deed be pleaded with a profert, and the defendant plead non est factum, and the plaintiff cannot produce the bond, &c. at the trial, he will be nonsuited, 4 East. 585. It is therefore frequently necessary, or advisable, instead of the profert in the above precedent, to insert in the declaration one of the following excuses, which are to be framed according to the fact, or at least to add a second count, containing such These excuses of the profert run as follows-If the bond be lost-" and which said writing obligatory having been lost," or, " and which said writing obligatory having been destroyed by accident," or, "by fire," or, "by the said C. D." the said A. B. cannot produce the same to the said court here. See 3 T. R. 151.-If the bond be in the possession of the defendant, the excuse of profërt runs thus— "and which said writing obligatory being in the possession of the said C. D. the said A. B. cannot produce the same to the said court here."

excuse.

(y) See ante, 195. note t.

ON SPECIALTIES.

GENERALLY.

It seems sufficient if an allegation of this nature be true at the time of 1. ON BONDS declaring, and if the deed be afterwards found, it will not vitiate the allegation, 2 Campb. 557, 8.

II. ON BONDS STATING THE CONDITION.

It is now settled that in debt on bond, with a condition for the performance of any thing, (except the payment of a gross sum of money, or the appearance of the defendant in a bail bond, 2 B. & P. 446. or a petitioning creditor's bond, 3 Fast. 22.) the plaintiff is bound to suggest breaches (1) in pursuance of the Stat. 8 and 9 W. 3. c. 11. s. 8. which statute has been decided to extend to an annuity bond, 8 T. R. *126, an arbitration bond, 6 East. 613, (2) and to a bond conditioned for the payment of money, by instalments, 6 East. 550. Many of the decisions on this statute are collected in Tidd's Practice, 508 to 512.1 Saund. 58. n. 1.-2 Saund. 187. n. 2. It appears from the two last references, that it is in general advisable, in declarations on bonds within the statute, to set forth the condition of the bond, and the breaches thereof, as in the following precedents. From De la Rue v. Stewart, 2 New. Repts. 362. it should seem absolutely necessary, in some cases, to state the breach in the declaration, and that it cannot be stated in the replication; but according to the case of Ethersey, v. Jackson, 8 Term Repts. 255. and Mr Sergeant Williams' note, 2 Saund. 187. a. the breach may be assigned in the replication. (3)

[198]

As in a common declaration on a bond in K. B. C. P. or Exchequer, 9. On a basante, 195, 6, to the end of the statement of the bond, at the †, and tardy bond(~). then, before the breach, proceed as follows (a):—] Which said writing obligatory was and is subject to a certain condition thereunder written, whereby, after reciting to the effect following, to wit, that, &c. [set out the whole of the recitals, and the condition in the past tense, which is in general, first, to pay a weekly sum for the maintenance of

(2) A profert or an excuse for the omission of it, is as necessary in this as in a common declaration, 2 Saund. 187. c, ante, 197. and the defendant cannot plead nil debet. 2 Saund. 187. a. n. 2.

(a) Qu. See the form 2 Saund. 58. b. and post. 202. which varies a little from this form, and see 2 Saund. 187. n. 2.

(1) Vide Hodges v. Suffelt, 2 Johns. Cus. 406. Van Benthuyn and another v. De Witt and others, 4 Johns. Rep. 213.

(2) Acc. Munro v. Allaire, 2 Caines' Rep. 320.

(3) Acc. Postmaster General of U. S. v. Cochran, 2 Johns. Rep. 413. If the plaintiff assign 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.

CONDITION.

Second breach.

2. ON BONDS the child; and, secondly, to indemnify the parish; and then proceed as STATING follows (b).]—And although the said child, whereof the said C. D. so was the reputed father as aforesaid, is still living, to wit, at, &c. aforesaid; yet the said C. D. hath not from the time of the making of the [199] said *writing obligatory, weekly, &c. paid, &c. [state the nonpayment of the weekly sum in the negative of the words in the condition, and proceed as follows:-] but the said C. D. hath hitherto wholly neglected and refused, and still neglects and refuses so to do; and by means thereof the said A. B. after the making of the said writing obligatory, and whilst he was churchwarden and overseer, as aforesaid, to wit, on, &c. and on divers other days and times afterwards, was 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. aforesaid. And the said A. B. for assigning a further breach of the said condition of the said writing obligatory, according to the form of the statute (c) in such case made and provided, further says, that a certain person, to wit, E. F. the successor of the said A. B. as such churchwarden and overseer as aforesaid, after the making of the said writing obligatory, to wit, on, &c. (d), and on divers other days and times, between that day and the day of exhibiting the bill of the said A. B. in that behalf, was 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. aforesaid, by means of which said premises the said A. B. hath sustained damages to a large amount, to wit, to the amount of L.— (e), by reason of which said breaches the said writing obligatory became forfeited, and thereby an action hath accrued to him the said A. B. to demand and have of and from the said C. D. the said sum of L.— (ƒ), above demanded; yet the said C. D. (although *often requested so to do) hath not as yet paid the said sum of L—, above de

[200]

(b) If the bond were given before the birth of the child, the following aver ment should be here introduced, "and the said A. B. in fact saith, that after the making of 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 C. D. was such reputed father as aforesaid, was born and still is living, to wit, at, &c. aforesaid."

(c) 8 and 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. [and see 2 Johns. Rep. 413. 2 Caines' Rep. 320.] It is not, however, necessary in assigning the breach, to refer to the statute, and it is sufficient to prove a part of the breach assigned. 13 East. 1, 2. [2 Caines' Rep. 320.]

(d) The day the next overseer came into office.

(e) The amount of the penalty of the bond.

(f) The penalty; as to this conclu