For Escapes. to the said A B, to demand and have of and from the said CD \ the sum of 7. above demanded.) Yet, &c. (Conclusion as ante, 144.)

3. Against the

-, (to wit.) A B complains of CD, Esq. marshal of the marshal of K. marshalsea of our lord the now king, before the king himself,

B. for the es

soner com

mitted to his custody in execution.(f) * 150

cape of a pri- present here in court in his own *person, of a plea that he render to the said A B the sum of --1. of good and lawful money of Great Britain, which he owes to and unjustly detains from him. For that whereas the said A B, heretofore, to wit, in term, in the year of the reign of our lord the now king, in the court of our said lord the king, before the king himself, the said court being then holden at Westminster, in the county of Middlesex, by bill without the writ of our said lord the king, 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 under takings before then made by the said E F unto the said AB, as for his costs and charges by him the said ♬ 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(g) on next after term, in the 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,

-

in

(f) See the notes to the last precedent which are here applicable. If the bill against the marshal be filed in the vacation, as is frequent, there should be a special memorandum, similar to that against an attorney, when filed in vacation. See 5 T. R. 325. 2 Saund. 1. n. 1. As to the

marshal's liability, and the necessity in some cases for filing the bill, whilst the prisoner is out of the rules, see 2 T. R. 129.

(g) This is to be according to the language of the entry of the committitur, for which see Tidd's Prac, Forms, 131, 132.

* 151

committed to the custody of the said C D then being marshal For Escapes. 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 of the commitment remaining in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully appears.(h) *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 AB, 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 suffered and permitted the said E F to escape and go at large out of the said prison and out of the said custody of the said C D wheresoever the said E F would, without restraint, and without the license, and against the will of the said AB, 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 CD the said sum of 7. above demanded. Yet, &c. (Conclusion in debt, as ante, 144. and praying relief, &c.)

IV. ON SPECIALTIES.

1 ON BONDS GENERALLY.(¿)

[Commencement as ante, 141.]

For that whereas the said CD heretofore, to wit, on, &c. át, 4. On a moc. by his certain writing obligatory, sealed with his seal, and ney bond in now shewn to the court of our said lord the king, before the king Profert.

K. B.

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

(i) As to the declaration on bond's in general, see Com. Dig. Pleaders 2 W. 9.

1. On bonds himself here, the date whereof is the day and year aforesaid, acgenerally.

6. The like

knowledged himself to be held and firinly bound unto the said A B in the said sum of ―l. above demanded, to be paid to the said A B, when he the said CD should be thereunto afterwards requested. Yet the said CD although often requested so to do, hath *not as yet paid the said sum of -. above demanded, or any part thereof, to the said A B, but to pay the same or any part thereof to the said A B, he the said CD hath hitherto wholly refused, and still refuses so to do. To the damage of the said A B of 101. and therefore brings his suit.

Pledges, &c.

For that where

[The statement

[Commencement as ante, in C. P. 3, 4. 141.] as the said CD heretofore, to wit, on, &c. of the bond is the same as in K. B. omitting the profert, as above, in italics, and concluding as usual in C. P. and subscribing the following profert :] "And the said A B brings here 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."

[Commencement as ante, 4.] Same as in K. B. inserting, inin exchequer. stead of the words in italics, the following profert : " and now shewn to the barons of his majesty's exchequer here, the date whereof is the day and year aforesaid," and concluding as usual in the exchequer, ante, 4.

7. Counts on several bonds,

&c.

Several counts on different bonds may be joined in the same declaration, see the precedent, 1 Saund. 288. and id. note 1. and Lil. Ent. 167. Com. Dig. tit. Pleader, 2 W. 9. In this case proceed as in the first count above, 151. to the obelisk, and then insert the count on the other bonds, as follows:-" And whereas also, the said CD heretofore, to wit, on, &c. at, &c. by his certain other writing obligatory, sealed, &c. [same as the first count, ante, 151. to the end, and then state,] which said several sums of money in the said ―counts mentioned, amount together to the said sum of &c. [proceed with the breach as above, to the end. There appears to be no occasion to conclude each count with the words,

. above demanded. Yet the said CD,

"whereby," . See the precedent, 1 Saund. 288. and ante, 1. On bonds generally. 142. n. (i).]

* 158

* As to the profert, see vol. 1. Index, tit. Profert. If a bond 8. Excuses for profert. or other deed be pleaded with a profert, and the defendant fil, ad 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 precedents, 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 excuse. These excuses of the profert run as follows-If the bond be lost-" and which said writing obligatory having been destroyed by accide;" 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 profert runs thus, "and which said writing obligatory being in the possession of the said CD, the said A B cannot produce the same to the said court here."

11. 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 East, 22. the plaintiff is bound to suggest breaches in pursuance of the stat. 8 and 9. W. III. c. 11. 8. 8. which statute has been decided to ex* tend to an annuity bond, 8 T. R. 126. an arbitration bond, 6 East, 613. and, to a bond conditioned for the payment of money by instalments, 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 there, as in the following precedenis.

11. On bonds stating condi tion.

9. On a bastardy bond.

Second breach.

* 155

[*Same as the precedent, ante, 151. to the obelisk,(k) and ther proceed as follows:] 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 maintaining of the child, and, secondly, to indemnify the parish, and then proceed as follows:-() and although the said child, whereof the said CD, 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 said writing obligatory, weekly, &c. paid, &c. [state the non-payment 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 times and days 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 -. 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(m) 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,

(k) 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, 153. and the defendant cannot plead nil debet. 2 Saund. 187.

a. n. 2.

(1) If the bond were given before the birth of the child, the following averment should be here introduced, "and the said AB in fact seith, that after the making of the said writing obligatory, to wit, on, &c. at, &c. the child with which the said EF was so

pregnant, and whereof the said CD was such reputed father as aforesaid, was born and still is living, to wit, at, &c. aforesaid."

(m) 8 and 9 W. III. 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 to for duplicates, 1 Saund. 58. n. 1. It is not, however, necessary in assigning the breach, to refer to the statute.