Reports of that grave and learned judge, Sir John Bridgman, knight, serjeant at law, sometime chief justice of Chester to which are added two exact tables, the one of the cases, and the other of the principal matters therein contained.

Hillar. 13 Jacob. Robinson against Matthew Francis Administrator of Alban Francis.* 1.1

IN an Action of Debt on a Bond of 100 l. made the first of August, 10 Jacob.

The Defendant pleaded, that the Intestate 20 November,* 1.2 the 11 Jac. was bound to Elizabeth Francis in 100 l. which was unpayd at the death of the Intestate, and that Elizabeth marryed John Pennial, John and Elizabeth brought a plea of Debt against the Defendant be∣fore the Major of London for the said 100 l. and recovered by default, and had Execution of 55 l. 8 s. 5 d. and so acknowledged satisfaction, &c. and did further plead, that the Intestate the 12 Janua. 7 Jacob. did ac∣knowledg in Chancery, that he owed to the Lord Chancellor and to the Master of the Rolls 500 l. which Recovery and Recogni••••nce did amount to 600 l. 8 s. 6 d.

And that the Defendant for the said Execution, and for payment of divers Debts of the Intestate before this Action, plene administravit omnia bona Intestatoris praeterquam bona ad valentiam 100 l. which were lyable for the residue of the said Recovery, and for 100 l. parcel of the said 500 l. and that he hath not, nor had, at the day of the Writ, purchased any other goods, &c. saving to the value of the said 55 l. 8 s. 5 d. and the said 100 l. and did aver, that the Debt recovered before the Major, &c. was a true and a just Debt, and that the said Reco∣very as to 45 l. and 1 d. residue of the said 100 l. 8 s. 6 d. and the said Recovery did remain in force.

The Plaintiff as to the Recovery said, That the said Obligation,* 1.3 upon which the said Recovery was had, was made for security of the payment of 55 l. and that the said John Pennial and Elizabeth did ac∣cept the said 55 l. 8 s. 5 d. in full satisfaction of the said Iudgment, and were content therewith, and offered therefore to make a Release, or to acknowledg satisfaction: but the Defendant, to defraud the Plain∣tiff of his just Debt, did defer to have satisfaction acknowledged, or to have a Release of the residue of the Iudgment, and suffered the Iudgment to remain in force by fraud and covin to the intent afore∣said, &c.

The Defendant, as to the residue of the Debt,* 1.4 and the acceptance of the said 55 l 8 s. 5 d. in satisfaction of the Iudgment, and to the offer of Release and acknowledgment of satisfaction, did demur in Law. And as to the Recognizance he said, that a Condition was an∣nexed to it, scil. That if the Intestate, his Executors, or Assigns, should pay 100 l. with the increase thereof, to William Francis an Infant, when he shall come to the age of 21 years, and in the mean time shall imploy it to the benefit of the Infant, according to the Will of Willi∣am Francis, that then the Recognizance shall be voyd: and did aver, that William Francis was alive, and within age, and that the said 100 l. was not yet payd.

And the Plaintiff to this did joyn in Demurrer.

And to the other Plea did demur in Law, and the Defendant did joyn.

And I conceive, that as to the first Demur, the Plaintiff ought to

have Iudgment; for now it is acknowledged by the Defendant, that he hath 100 l. in his hands, besides the 55 l. 8 s. 5 d. delivered in Execution, and he hath not shewed any sufficient cause for retaining it: for when those, who recovered 100 l. upon the Bond, did accept 55 l. 8 s. 5 d. in full satisfaction of the Iudgment, and did offer to re∣lease and acknowledg satisfaction, this Iudgment in truth is dischar∣ged, and cannot charge the Executor: and therefore he cannot return (riens en ses maines) to satisfie, because he is not bound to pay it. Cook. 8 Rep. Turners Case: who brought an Action of Debt upon a Bond of 100 l. against Laurence and others, Administrators of Booker. The Defendants pleaded in Bar divers former Recoveries against them in Debt had, that they had not Assets, praeterquam bona & ca∣talla quae non attingunt ad valorem, of the said Debts recovered.

The Plaintiff replyed, that the Defendants since the Recoveries did pay part of the Debts in full satisfaction, wherewith they held themselves content, and offered to acknowledg satisfaction, but the De∣fendants did refuse to agree to that, to the defrauding of the Plaintiff. And adjudged that the Plaintiff should recover: for an Executor ought to execute his office truly.

[Object.] But it may be objected, That there is no place mentioned where the payment or acceptance was?

[Answer.] I answer, that it is not material, for it is not issuable, but onely evidence to prove the fraud, which is the substance of the Plea, and that is proved by the said Case of Turner. And 42 Ed. 3. 14. Conspi∣racy shall be brought where it was done, and not where the Indictment was. And 44 Ed. 3. 31. Attachment upon a Prohibition lies where the summons is, although the Plea be held in another County. 1 H. 7. 15. B. Payment with Acquittance, pleaded in an Action of Debt upon a Bond, is not double, because that acquittance onely is issuable, and the payment is but evidence.

Then the Recognizance is no cause of the retaining the 100 l. as in Cook. R. 5. Harrisons Case: Green brought an Action of Debt up∣on a Bond of 40 l. against H. Administrator of Thomas Sydney, the Defendant pleaded that the Intestate was bound in a Statute, besides which he had no goods, &c. The Plaintiff replyed, that there was an Indenture of Defeasance for performance of Covenants, which hither∣to were performed; whereupon the Defendant demurred, and it was adjudged against him; for a Debt upon a Bond shall be payd before a Statute to perform Covenants, when none of them then were, nor perhaps ever shall be broken, but are future and contingent things; and therefore such possibilities, which peradventure shall never happen, shall not bar present and due Debts upon a Bond.

And although the Condition of the Recognizance be to pay mony, yet is it to be payd to a stranger, and therefore it is not any Debt, but the Debt is onely by the Recognizance.

Also it is not to be payd but upon a contingency (to wit) if the Infant comes to full age, but if he dye before, it shall never be payd. 36 H. 8. Dyer 59. One devised 20 l. to his Daughter to be payd at her marriage, or 21 years of age, and she dyed before marriage, yet it shall be payd. 7 Ed. 4. 3. and 18. 36 H. 6. 9. Cook. 9 Rep. fol. 108. In an Action of Debt against an Administratrix who pleaded Statutes, and further that she had not sufficient, &c. The Plaintiff replyed, that for one of the Statutes a lesser sum was accepted in satis∣faction; and as to the other, that it was for performance of Cove∣nants,

and that none was broken: and the Defendant demurred, and adjudged for the Plaintiff; and that the general averment of payment and acceptance, and that the Statute was for performance of Cove∣nants, was good, because the Plaintiff was a stranger thereto.

And this case was argued again by me for the Plaintiff, and by Crook for the Defendant, Saturday the 24 of May, Pasch. 15 Jacob. at which day Mountague, Doderidge, and Haughton did agree, that for the first matter Iudgment ought to be given for the Plaintiff; but as to the last Mountague held for the Defendant, but the other two on the contrary. And Doderidge and Haughton agreed that the Plea of the Defendant was naught, because he said, that a Condition was annexed to the Recognizance, and did not say, that it was upon condition; and Mountague replyed not. Vide Com. Browning and Beestons Case, 21 Ed. 4. 49. 28 H. 6. 3.

Notes

• * 1.1

  Rot. 542.
• * 1.2

  Plea.
• * 1.3

  Replication.
• * 1.4

  Rejoynder.