Where the condition is general, to pay a sum of money with interest, no demand is necessary (b); but if by the condition the money is payable on demand, a demand must be proved (c). At law the penalty is the debt, and interest cannot be recovered beyond it (d), except under special circumstances, as where the obligor has, by vexatious proceedings, delayed the obligee from recovering (e). In an action upon the bond, interest cannot be recovered beyond the penalty (f); but, after judgment recovered, transit in rem judicatam; the nature of the demand is altered, and in an action on the judgment, it is competent to the jury to allow interest to the amount of what is due, although such amount exceed the penalty of the bond and costs of the judgment; and in this respect there is not any difference between a foreign judgment and a judgment in a court of record here (g).

If a person be bound to pay a sum certain on several days, the obligee cannot maintain an action of debt until the last day be past (h). But upon a bond with a penalty conditioned to pay several sums of money at different days, debt will lie immediately on default of payment at either of the days, for the condition is thereby broken, and consequently the bond becomes absolute (i). And this rule holds, although the condition of the bond does not expressly provide, "that in default of payment at any of the said times, the bond shall be in force" (k). If A. enter into a bond to pay money on two several contingencies, the obligee may maintain debt on the happening of either contingency (1). If an instalment of an annuity, secured by bond, be not paid on the day, the bond is forfeited, and the penalty is the debt in law, for which judgment may be entered, which shall stand as a security for the growing arrears of the annuity (m).

It would not seem necessary to state in the declaration the place of date of a bond, even if made abroad (n); such an action being transitory (o); and the statement formerly held sufficient in such cases: e. g. "at Amsterdam in Holland, to wit in the parish of St. Mary in London," (p) not being traversable (q).

(b) Gibbs v. Southam, 5 B. & Ad. 911. (c) Carter v. Ring, 3 Campb. 459.

d) Branscomb v. Scarbrough, 6 Q. B. 13. The rule is the same in equity. Hughes v. Wynne, 1 My. & K. 20.

(e) Grant v. Grant, 3 Sim. 340. See Ram on Assets, 701.

(f) Wilde v. Clarkson, 6 T. R. 303. (g) M Clure v. Dunkin, 1 East, 436. (h) Rudder v. Price, 1 H. Bl. 547. But on a covenant or promise to pay a sum of money by instalments, an action of covenant or assumpsit will lie immediately on the non-payment of the first instalment, for the covenant or promise is broken as often as there is a default in payment. 1 Inst. 292, b; Milles v. Milles, Cro. Car.

241. So if money is awarded to be paid at different days, assumpsit will lie on the award for each sum as it becomes due, toties quoties. Cooke v. Whorwood, 2 Wms. Saund. 337. The same rule holds in respect of duties which touch the realty. 1 Inst. 292, b.

(i) Coates v. Hewit, 1 Wils. 80. (k) Coates v. Hewit, ubi sup. (1) Sayer v. Glean, 1 Lev. 54. (m) Judd v. Evans, 6 T. R. 399. (n) Houriet v. Morris, 3 Campb. 303. (o) Brown v. Hedges, cited 1 Str. 614. (p) Dutch West India Company v. Moses, 1 Str. 612.

(q) And see Com. Law Proc. Act, 1852. Sched. A, form 4.

Of the Pleadings.

1. General Issue, Non est factum, and Evidence thereon.

The general issue to an action of debt on bond is non est factum, because the action is grounded upon the specialty. By 10 Pl. R. H. T., 1853, “in actions on specialties and covenants, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable."-Thus coverture or lunacy at the time of the execution, or, that the bond was delivered as an escrow, or, that the defendant was made to execute it when he was so drunk that he did not know what he did, must be pleaded specially.

It is not now necessary to make profert of any deed mentioned or relied upon in pleading, nor, if made, does it entitle the opposite party to oyer (Common Law Procedure Act, 1852, sect. 55); but a party pleading in answer to any pleading in which any document is mentioned or referred to, is at liberty to set out the whole or the material parts thereof, which matter is to be taken as part of the pleading in which it is set out, sect. 56. If the deed be misrecited or not truly set out, the opposite party ought, it would seem, to pray to have the bond and condition, or either (as the case may be), enrolled (or, semble, himself to set them out ipsissimis verbis), and then demur (r), or move to quash the plea (s).

Upon the issue of non est factum, the plaintiff must prove the execution of the bond by the defendant. Proof that one, who called himself D., executed, is not sufficient, if the witness did not know it to be the defendant (t). Upon this issue, the question is, whether it was the plaintiff's or defendant's deed respectively at the time it is pleaded as such (u). Thus, where to a plea of release of the defendant, the plaintiff's replied non est factum, on which issue was joined, it was held, that the issue was proved for the defendant, by the production of the deed in a cancelled state, which had operated as a release, it having been cancelled by the releasee after plea pleaded but before issue joined (r). An objection that the bond was executed by the defendant in a name other than his own, and other than one by which he was known at the time of the execution, (if available at all,) is not available to the defendant under the plea of non est factum (y).

To prove the execution of a bond, the sealing and delivery must

(r) Com. Dig. Pleader, P. 1; Ferguson v. Mackreth, 4 T. R. 371, n.

(s) Kepp v. Wiggett, 6 C. B. 280. It was held in Gunter v. Smith, Peake Ad. Ca. 1, that where the plaintiff omitted to take either of these courses, and replied generally, the defendant was entitled to a

verdict for the variance, under the plea of non est factum.

(t) Memot v. Bates, Bull. N. P. 171. (u) Whelpdale's case, 3rd Res. 5 Rep. 119; Michael v. Scorkwith, Cro. Eliz. 120. (x) Todd v. Emly, 11 M. & W. 1. (y) Williams v. Bryant, 5 M. & W. 447.

be proved. Proof of the sealing only is not sufficient. Hence, in a case (2) where the jury found that the defendant sealed the bond and cast it upon the table, and the plaintiff took it without any other delivery, or any other thing amounting to a delivery, the court were of opinion, that this was insufficient; observing, that it was not like the case which had then lately been adjudged (a), where the obligor had sealed the bond, and cast it upon the table, saying, "This will serve," which was held a good delivery; because, from the expressions used by the obligor, it appeared to be his intention that it should be his deed. If the obligor says to the obligee, "It is sufficient for you," or, "Take it as my deed," or the like words, it is a sufficient delivery (b). In Talbot v. Hodson, 7 Taunt. 250, however, it was held, that evidence of signing by the party by whom the deed purported to be sealed and delivered, was evidence sufficient to warrant the jury in inferring the sealing and delivery.

If a person deliver a writing sealed to the party to whom it is made, as an escrow, that is, to be his deed upon certain conditions, that is an absolute delivery of the deed, being made to the party himself (c). But a deed may be delivered to a stranger as an escrow (d). It is not necessary that the delivery of a deed as an escrow should be by express words; although it is in form an absolute delivery, yet if it can reasonably be inferred from the facts attending the execution, that it was delivered, not to take effect as a deed until a certain condition was performed, (which is a question of fact for the jury (e),) it will operate as an escrow (f). Where, therefore, A. agreed to let premises to B. for a term of years, B. paying 1001. for the fixtures, and a lease was prepared and engrossed, but B. only paid 501. down, and it was then agreed that B. should be let into possession as tenant from year to year, on the terms of the intended lease, until he paid the balance of the 1007.; at the same time A. signed, sealed, and delivered the lease, without using any words qualifying the delivery in any way, retaining it, however, in his own possession; it was held, that the circumstances warranted an inference, in fact, that it was agreed between the parties at the time of the execution of the instrument, that it should not operate as a lease until the payment (g).

Where a party to any instrument seals it, and declares, in the presence of a witness, that he delivers it as his deed, but keeps it in his own possession, and there is nothing to qualify that, or to show that the executing party did not intend it to operate imme

(z) Chamberlain v. Stanton, Cro. Eliz. 122; 1 Leon. 140.

(a) 1 Inst. 36, a.

(b) Ibid.

(c) Ibid. But see Gudgen v. Bessett,

(d) 1 Inst. 36, a.

(e) Murray v. Earl of Stair, 2 B. & C. 82.

(f) Bowker v. Burdekin, 11 M. & W. 147.

(g) Gudgen v. Bessett, 6 E. & B. 986. The objection that it was delivered to the party himself does not seem to have been argued by counsel.

diately, except the keeping the deed in his hands, it is a valid and effectual deed; and delivery to the party, who is to take by the deed, or to any person for his use, is not essential (h). So delivery to a third person for the use of the party in whose favour the deed is executed, where the grantor parts with all control over the deed, makes the deed effectual, although the person to whom the deed is so delivered be not the agent of the party for whose benefit the deed is made. S. C.

If there be a subscribing witness to the bond who is living, can be found, and is capable of being examined, such witness is alone competent to prove the execution (i); because he may know and be able to explain the circumstances of the transaction, of which a stranger may be ignorant. The confession or acknowledgment of the party executing the bond will not dispense with this testimony (j). Even the admission of the obligor of the execution of a bond, in an answer to a bill in Chancery filed for the express purpose of obtaining such admission, has been held insufficient without evidence to account for the non-production of the subscribing witness (k). Nor can this rule be dispensed with, even where the instrument is not the foundation of the action, but only given in evidence collaterally. See Per Lord Alvanley, C. J., in Manners v. Postan, 4 Esp. 240. And it is not sufficient ground for receiving evidence of the handwriting of a witness (which would be receivable if he were dead) that he is unable to attend the trial from illness, and lies without hope of recovery. Harrison v. Blades, 3 Campb. 457; Doe v. Erans, 3 C. & P. 221 (7). But in a case where the defendant's attorney had admitted the signature of the defendant, and the subscribing witness to the bond, Lord Ellenborough ruled, that this must be taken as a presumptive admission of all the subscribing witness professed to attest, and would have been called to prove, and consequently, that it was not necessary to bring proof of delivery. Milward v. Temple, 1 Campb. 375. It is not necessary that the subscribing witness should actually see the party execute the bond; for where the witness was in an adjoining room, and the obligor, after the execution, brought the bond to the witness, and said that he had executed it, and desired the witness to subscribe his name as a witness, which he accordingly did, this was held sufficient (m). If there be two or more subscribing witnesses, it is only necessary to call one of them.

If it can be proved that the subscribing witness is at the time of

(h) Doe v. Knight, 5 B & C. 671.

(i) i. e., in the absence of the party executing the deed, who may now be examined, whether he be a party to the suit; 14 & 15 Vict. c. 99, s. 2; or interested therein; 6 & 7 Vict. c. 85, s. 1. Subject to this remark the above observations are

VOL. I.

still applicable.

(j) Abbott v. Plumbe, Doug. 215.
(k) Call v. Dunning, 4 East, 53.
(1) Application to postpone the trial
should be made in such a case.

(m) Parke v. Mears, 2 B. & P. 217.

PP

a

trial dead, or has become insane (m), or blind (n), or is absent in a foreign country (o), whether domiciled abroad or only absent for temporary purpose (p), or is out of the jurisdiction of the court, e. g. in Ireland (q), or is serving in the navy somewhere (r), or that a commission of bankruptcy has issued against him, to which he has never appeared (s), or generally that intelligence cannot be obtained of him, after reasonable inquiry has been made (t) (and semble, that circumstances evidencing the bona fides of the transaction may render a slighter search sufficient than would be required under circumstances of suspicion (u)), proof of his handwriting will in such cases be sufficient.

In debt on bond, without defence; Willes, C. J. "If both witnesses to the bond are dead, one would think the plaintiff ought to prove the obligor's hand; but the established rule of evidence is otherwise, and it is sufficient for the plaintiff to prove both the witnesses dead, and the hand of one of them." Tomlins v. Talbot, London Sittings, C. B. M. 18 Geo. II. MS. 10 Leeds, 202, part of Serjt. Hill's collection in Lincoln's Inn Library. So where a bond is attested by two witnesses, and one is dead, and the other beyond the reach of the process of the court, proof of the handwriting of the witness that is dead is sufficient (x). And the rule holds, even where the party executing the deed signs by a mark only, for of secondary evidence there are no degrees. Mitchell v. Johnson, M. & Malk. 176. In Wallis v. Delaney, 7 T. R. 266, n., Lord Kenyon held it necessary, in cases of this kind, to prove the handwriting of the obligor, as well as the handwriting of the subscribing witness. In a subsequent case, a nonsuit directed by Lord Loughborough, on the ground that the handwriting of the obligor was not proved, was set aside by the court, and a new trial granted (y); and in Adam v. Kerr, Í B. & P. 360, Buller, J., held, "that the handwriting of the obligor need not be proved; that of the subscribing witness, when proved, is evidence of every thing on the face of the paper, which imports to be sealed by the party." In neither of the above cases, however, does the question of identity seem to have been discussed, and the same may be said of Cunliffe v. Seton, 2 East, 183, and Prince v. Blackburn, ibid. 250, where the only point made was, whether, if the subscribing witness were abroad or could not be found after reasonable inquiry, evidence of his handwriting was admissible, and it was held that it In Page v. Mann, M. & M. 79, and Kay v. Brookman, ibid. 286, where the objection that evidence of the subscribing witness's

was.

(m) Currie v. Child, 3 Campb. 283.
(n) Wood v. Drury, 1 Ld. Raym. 734;
Pedler v. Paige, M. & Rob. 258; but
see Crank v. Frith, 2 M. & Rob. 262.

(0) Coghlan v. Williamson, Doug. 93.
(p) Prince v. Blackburn, 2 East, 250.
(q) Hodnett v. Forman, 1 Sta. 90.
(r) Parker v. Hoskins, 2 Taunt. 223.

(s) Wardell v. Fermor, 2 Campb. 282. (t) Burt v. Walker, 4 B. & Ald. 697. (u) Crosby v. Percy, 1 Taunt. 364. (x) Adam v. Kerr, 1 B. & P. 360. (y) Gough v. Cecil, C. B. Trin. 24 Geo. III., Serjt. Hill's MS. 21, p. 78; 1 Luders on Elections, p. 317, S. C.