ando; for plea, did not accept said two quarters of wheat CH. 178. &c., and offered issue. N. B. This was debt as above. Art. 12. Deft's. first plea, paid £4, and accord &c. for £6, and verified. The plt. divided the plea, and offered two issues. And Co. L. 71. § 10. So, the deft. comes and defends &c., and prays oyer of the said obligation, and it is read to him, and thereupon he confesses the forfeiture of it, and prays to be heard in equity; and that the said forfeiture may be chancered, and judgment for the first debt and damages. § 11. In debt on judgment, deft. comes and defends &c., when &c.; actio non &c., and says, there is no such record of the recovery of the damages aforesaid, against the said D, as the plt. has in his said declaration declared upon, and this he is ready to verify. Replication, plt. says, precludi non, because he says there is such a record as he above hath declared on, and this he is ready to verify by that record. Nul tiel record, is a good plea in debt upon an escape. Hob. 209. Abr. 87.-1 § 12. Plea, the deft. performed the condition. Held, a 4 Ins. Cl. condition to pay money may be discharged by a collateral 410-4 Bac. thing, as wheat &c., accepted; but it is otherwise of a con- Bur.9.-Hob. dition to do a collateral thing, as to make a feoffment &c. 68, 69. The debtor directs the application of the payment, where not agreed on. To pay on several days, no action lies till 4 Ins. Cl. the last, but with special exceptions. Payment before the 413.-1 Leo. day is payment at it. 311. 423.-Brown. § 13. So, the deft., the principal, pleaded, he saved his 4 Ins. Cl. surety harmless, on oyer of the counterbond, and payment Red. 193. of the debt; hoc paratus. Replication, that he did not pay Bro. Red. &c., and issue offered. 193, 257. 117, 118. § 14. So, the defts. plead, they saved the plts. harmless, 4 Ins. Cl. 130 generally, and kept them indemnified; hoc paratus. Long to 436.-1 Saund. 114, replication, shewing how bound, and how damnified &c.; hoc paratus. Rejoinder, that if the defts. had had notice of the plts'. being damnified would have kept them indemnified. Had no notice &c.; hoc paratus. Plts. demurred. Judgment for them; for they had no need to give notice. Cl. 7. § 15. Awards. So, the deft. pleaded, no award made, on Thomp. Ent. oyer of the bond and condition to perform the award; hoc 1785 Ins. paratus. Long replication, stating the award made, and assigning a breach; hoc paratus. Rejoinder, no award made before the day &c., and offered issue. § 16. So, a plea by the deft., that the arbitrators had 5 Ins. Cl. 9, notice of a matter in dispute, and shewing what, and did not 11,13,17,21. award thereon, so no award made by them or the umpire. Replication, the umpire made one. Rejoinder, revoked. Surrejoinder, did not revoke, and issue. A submission with Ch. 178. 6 Ins. Cl. 29' 30, 32, 35, 38, 39. 6 Ins. Cl. 53, 72. 5 Ins. Cl. 124, 125. 5 Ins. Cl.. 128.-PI. out deed may be countermanded without deed, on giving notice by the party: by deed, may be revoked by deed, but the bond is forfeited. Deft. pleaded an award, and that he performed it. Plea, an award to pay to a stranger, and so bad and void. Award of a sum in satisfaction of all controversies is mutual and good. When on one side only, is void; and the true plea is, no award made. No award pleaded. Replication, a parol one. Replication, award ready to be delivered to deft.; none there to receive it. Rejoinder, not ready. Rejoinder, is a departure from the plea of no award. Replication, second umpire made an award. Rejoinder, he offered to pay and the plt. refused. When the award is made it is ready to be delivered. An award creates a duty that will go to the executor. § 17. Escapes. Long plea by the deft.; fresh pursuit; hoc paratus. Replication, that the deft. voluntarily permitted the prisoner to escape &c.; without this, that he retook him in fresh pursuit, and put him in prison in execution for the debt &c.; hoc paratus. Rejoinder, did retake &c. in fresh pursuit, and put him in prison on execution for the debt &c. § 18. So, plea, he did not permit said J. to go at large out of his prison and custody, where he would in manner &c., Gen. 237.5 and issue: so, plea, he brought the prisoner by habeas corpus, which is the same going at large. Replication, voluntarily permitted, and traverse of habeas corpus. Plea, he delivered said J. by supersedeas. Plea, he has said J. in custody, and traverses he permitted him to go at large, when he would. Replication, permitted him to go at large. Plea, he took J. for another cause, and not that in the plt's. declaration. Replication, for that in his declaration. Ins. Cl. 130, 131, 133, 134. 5 Ins. Cl. 137. Bro. Red. § 19. Debt on replevin bond. Plea, that the condition is not according to the statute, and so void. § 20. So, long plea by the deft., that the plt. promised to 190.-5 Ins. give advice; hoc paratus. Replication, did not request it, Cl. 45. 5 Ins. Cl. 149. 5 Ins. 1. 161. 5 I s. 1. 164, 1... 6 Ins. Cl. 188, 190. and issue offered. § 21. So, the deft. pleaded he made a bond for securing payment of the said £10 to the plt.; hoc paratus. Replication, did not make the bond. § 22. Pleas, the deft. does not owe, or does not owe the king and plt., and offers issue. § 23. So, plea, he did not commit perjury. not keep a gaming house. Lut. 133, 134. receive, and issue. 5 Ins. Cl. 186. Plea, he did Plea, did not 24. Debt for maintenance. Plea, he is an attorney. Plea, he did not sell the goods &c., against the form of the. statute. § 25. So, in debt the deft. pleads non est factum. See Non CH. 178. est factum. Art. 12. Debt on bond against the heirs of A. A gave B a bond conditioned that his heirs or executors in one year after his 5 D. & E., death should pay her or her executors £3,000, and then 831. married her and died. In this action the deft. on oyer, pleaded, that after making the bond, January 10, 1782,"the said A took to wife and intermarried with the said B, the plt., and the plt. then and there became covert of, and wife to, the said A, obligor, and continued so until, and at, the death of the said obligor" &c. The plt. replied, "the bond aforesaid was made in contemplation of a marriage to be had and solemnized between the said plt. and the said obligor, and that with an intent, that in case that marriage should take effect, and the plt. should survive him, she should have the full benefit of the said bond. Replication, held good on demurrer. § 26. So, the deft. pleads usury in bar, and corrupt agree- 5 Ins. Cl.303 ment, shorter form. Also usury at great length; hoc paratus. 5 Ins. Cl. 298, 299, &c.; 1 Lut. 467. § 27. In addition to these and many other pleas at large, in the books, besides abstracts of pleas, as in Bacon, Comyns, &c., reference may be here made to the large number of pleas in debt before stated at large, or in substance, from Ch. 139 to Ch. 170; more especially Ch. 139, as to the general principles of debt on contracts; Ch. 141, as to Debt on Awards; Ch. 144, Debt on Bonds; Ch. 146, Debt on Judgments; Ch. 148, Debt for Penalties, Statutes, Qui Tam, &c.; Debt on Probate Bonds, Ch. 149; Ch. 150, Debt on Recognizances and Bail; Ch. 151, Debi for Rent; Ch. 154, Pleas in Debt; Ch. 155, Accord and Satisfaction in Debt; Ch. 156, Acquittance in; Ch. 157, Discharges Pleaded in; Ch. 158, Pleas Duress and Per Minas; Ch. 159, Plea, Escrow; Ch. 160, Estoppels Pleaded; Ch. 161, Limitations Pleaded; Ch. 162, Nil Debet-Non est Factum Pleaded; Ch. 163, Nul Tiel Record-Pleas; Ch. 164; Oyer, 165, Payments Pleaded; Ch. 166, Matters of Record Pleaded in Bar; Ch. 167, Releases Pleaded; Ch. 168, Pleas-SetOff; Ch. 169, Plea-Saved Harmless; Ch. 170; PleasTender and Bringing Money into Court. ⚫ Ent. 166. § 28. In debt on a specialty, non est factum is also a good 1 Saund. 291, plea on oyer, where the deed is void. Form, 2 Ch. on Pl. a. n. 1.—Lill. 460 &c.; and whenever the deft. disputes it, he ought to use the term writing, or the "supposed writing obligatory." 10 Co. 120, 126. Non est factum pleaded to, one count, and nil debet to three others. 2 Ch. on Pl. 462: so, onerari non. Id. 1 Saund. 290. Delivery as an escrow may be given in evidence on this plea, -Rast. Ent. non est factum. 4 Esp. R. 255. Generally this plea ought to 181, b. 182, a. CH. 178. conclude to the country. 1 Salk. 274; Lill. Ent. 186. First Art. 13. plea, non est factum; second, deed obtained by fraud. Form of the plea. 2 Ch. on Pl. 464. Fraud is a defence at law. 2 D. & E. 763; 3 D. & E. 438; and Ch. 1, a. 29, s. 2. 2 Rol. R. 447.--Cro. El. 130. Bul. N. P. 118.-Form Regu'r. Jud. 31, 50. Buller, N. P. 118.-Noy. 64.-Cro. El. 503. Story's Pleadings, 353. 354 & 355, 356. Detinue. This is an action scarcely ever in use in our practice; four things are essential to support it: 1. Deft. must come lawfully to the goods by delivery to him, or by finding: 2. The plt. must have property in them: 3. The goods themselves must be of value; and fourth they must be indentified. Wherever trover lies, detinue does; and in detinue the plt. can only rocover the goods themselves in specie. The pleas in this action, are the general issue, nil detinet. § 1. The general issue is, ne usque seisie que dower; may be as to part, and another plea as to another part, the residue. If the tenant plead ne usque seisie que dower, the wife may give in evidence a release to her husband, or a surrender to him by the other joint tenant &c.: so, if the demand be of rent charge, she may give a grant of the rent in evidence, and that her husband died the day before payment. Father, tenant for life, remainder to the son in tail, remainder to the father in fee. The father and son were hanged out of the same cart, for felony. The father's widow sued for dower, issue ne usque seisie. Proof by witnesses, the father moved his feet after the son's death; and she recovered. Plea usque seisie. Deft. comes &c., non dotem &c., because the said A A, formerly her husband, neither on the day on which the plt. espoused him, nor before, nor ever afterwards, was seized of the tenements aforesaid, with the appurtenances of such an estate, as that the plt. could thereof be endowed, and thereof puts &c. Like plea, 2 Wils. 118, 124; like plea, Story's Pleadings; Ras. Ent. 230; 3 Ld. Ray. 192; 6 Ent. 176, a.; Clift. 303. § 2. Plea, never lawfully married. Deft. comes &c., and non 2 Wils. 118, 124.-Story's dotem &c., because he says the plt. never was accoupled to Pleadings. the said A B, deceased, in lawful matrimony; hoc paratus &c. A marriage replied &c.: same case, Story's Pleadings, 353. In England, the marriage must be tried by the bishop's certificate; but not if had in Scotland: same case, Bul. N. P. 118; and Story's Plead. 357, 358; and the court laid it down as a fundamental rule, that if the trial cannot be by certificate, it must be by the country. 2 H. Bl. 458, 162; see Ch. 46, a. 5, s. 3. This rule applies in all cases in Massacsetts and Maine, and in most of the United States. Story's § 3. Plea, that the husband is alive. Deft. comes &c., non Plead. 349. dotem &c., because he says, that the said A A, is alive and in full life, to wit, at ; hoc paratus. Replication, he is CH. 178. dead. Rast. Ent. 228. Art. 13. 2 Y. 12. § 4. Plea, a divorce in the case. This is a plea that probably will not be often pleaded; for though by statutes cited, Ch. And 5 Com. 46, divorces may be frequent a vinculo; as in fact they D.Pleader, are, and the wife has dower when the husband is the guilty cause of the divorce; yet when the wife is the guilty cause, it is hardly probable she will often apply, as the evidence against her will always be a matter of record, shewing she is the guilty party, and so not entitled to dower, and then only will this plea apply. 5. Plea, elopement. Deft. comes &c., non dotem &c., be- Rast. Ent. cause he says, the plt. in the lifetime of the said A. A., of her 230.—Cited own will, at Story's Pl. left the said A. A., her husband, and eloped 352.Co. L from him with one B. B., unto C &c., and there afterwards 32.-Dy.107. remained a long time, in adultery with the said B. B., to the 2 Bro. Ent. end of the life of the said A. A.; without this, that the plt. was reconciled to the said A. A., her husband, in his lifetime; hoc paratus &c. She replied, she did not elope. A like plea in Welman v. Nutting, see Ch. 46, a. 8, s. 1. 109. to 364. § 6. Her release pleaded at large. That the plt. released Story's Pl. her right of dower in the premises by joining in a deed of mort- 359, 360, 360 gage with her husband, and afterwards the deft's. father recov ered judgment against the husband, and levied execution on the equity of redemption, and the premises descended to the deft. On demurrer to this plea, judgment was for the deft. See this case, Mortgage, Ch. 112, a. 5, s. 1 &c. Another plea, the plt. joined with her husband, in a mortgage. Her replication, non est factum. See this case, Dower, Ch. 130, a. 4, s. 73; her direct release, 5 Com. D. Pleader; 2 Y. 17; must be to the tenant of the freehold, 2 Cro. 151. 131, 139-5 § 7. Husband's lease before marriage, pleaded. If the hus- 2 Bac. Abr. band be neither seized in fact, or in law, during the marriage, Com. D. Pl. his wife cannot have dower, therefore, if before the marriage, 2 Y. 15. he, by his lease, part with the seizin, so that he is not seized in law or fact, during the marriage, this matter may be pleaded in bar, if his widow sue for dower. See Dower, Ch. 130, a. 4; Salk. 2911, Lindsey v. Lindsey. 351.-From § 8. Detainer of charters, pleaded. Deft. comes &c., non Story's Pl. dotem &c., and says that the husband was recently possessed Rast. Ent. of one sealed chest, with divers written charters and muni- 229.-Hob. ments concerning the said tenement, contained therein, to 199.-Bul. N. wit, at and died thereof possessed; so states his heir Mod. 18.PI 17, 118.entered, and the chest &c. came to the hands of the plt., a Salk. 252, request to her deliver to them &c., her refusal &c.; hoc para- p. 118-Bro. tus &c. She replied, no detainer &c. If on such replica- Dover, 8.tion, it is found against her, her dower is barred. Hob. 113; Salk. 253. 253.-B. N. Hob. 113. |