Fletcher v. Lord Sondes, wherein it was decided with the concurrence of a majority of the judges, (there being eight against four,) that a bond conditioned to resign at the request of the patron for the purpose of enabling him to present one of his two younger brothers, when capable of holding it, was simo- *757 niacal and void under the 31st Eliz." made be As the effect of this decision would be to invalidate all special bonds of resignation previously entered into, and to avoid all presentations founded thereon, and to subject the parties to penalties, in order to relieve persons who entered into such contracts on the faith of their being legal from such inconveniences, it was enacted, by 7 & 8 Geo. IV, c. 25, that no Contracts presentation to any spiritual office made before the 9th of April to resign 1827, should be void on account of any agreement to resign fore 1827, when another person specially named should be qualified to to be valid take the same, and that persons having made such agreement should not be subject to any penalty on account thereof; but that such agreements made before the above-mentioned period should be valid in law. And a subsequent statute legalised Engageall engagements to resign any benefice in favor of an uncle, ments to son, grandson, brother, nephew, or grandnephew, of the patron favor of resign in or of one of the patrons by blood or marriage, not being merely relatives. a trustee, provided the engagement is entered into before the presentation, nomination, or collation, or appointment of the party entering into the same; and provided that one part of the instrument or writing, by which the engagement shall be made, be deposited, within the space of two months, in the office of the registrar of the diocese wherein the benefice is situate. presenta On the purchase of an advowson in fee, the incumbent being Purchase in extremis, but without any privity of the clerk, the next of the next presentation was held not to be void, as being upon a simo- tion when niacal contract. So, the sale of the next presentation, the the incumincumbent being in extremis within the knowledge of both bent is in contracting parties, but without the privity or with a view to extremis is the nomination of the particular clerk, has been held not to be not void. void on the ground of simony within 31 Eliz. c. 6.e The sale of the advowson of a church which is full is not simoniacal by reason of the incumbency being at the time of the sale voidable at the election of the patron; and a conveyance under such a sale will pass the right of immediate presentation; but if the living be actually void, the right to the next presentation will not pass by a sale or conveyance, for it is no part of the advowson; it is disannexed." Fletcher v. Lord Sondes, 1 Bligh, N. S. 144. 3 Bing. 598, (13 Eng. C. L. 64,) overruling S. C. in 5 B. & A. 835. (7 Eng. C. L. 276.) 9 Geo. IV, c. 94. Error,) 6 Bing. 1. (19 Eng. C. L. 11.) 1 overruling S. C. in 2 B. & C. 635. (9 Eng. Alston v. Atlay, 6 Nev. & M. 686. 2 H. & W. 166. ན་ཟླ་མང་རྒེ%, *In an action for use and occupation by an incumbent against a tenant of the glebe lands, who has paid him rent, the defendant cannot give evidence of a simoniacal presentation of the plaintiff, in order to avoid his title. Where the occupier of land has entered into an agreement for a composition for tithes, he cannot set up as a defence to an action on such agreement, that the incumbent was simoniacally presented." S.-What will discharge a bond.] In general whatever will discharge a covenantor from his covenant will have the same effect in respect of the obligor of a bond. The obligor of a bond therefore may be released from his obligation, if the performance of the condition was possible at the time of the execution of the bond, and afterwards became impossible by the act of God. So he may be excused by the act or omission of the obligee, as by a release. By an alteration or cancellation of the instrument without his knowledge or consent. And if a material alteration is made after the execution is perfected, even with the consent of all parties, a new stamp will be required to render it valid. But a new stamp will not be required by reason of an alteration made with the consent of all parties, before the execution be perfected. If the bond be joint, tearing off the seal of one obligor will avoid it as to all; but if several, tearing off the seal of one will not discharge the others. So, the obligor will be discharged by the performance being prevented through the conduct of the obligee. By the intermarriage of the obligor and obligee. If there be two *759 obligors *and the obligee marry one of them, the debt is extinWhen a guished, for a discharge of one joint and several obligor is a bond will discharge of all. But a bond, conditioned for the payment of a Coxe v. Loxley, 5 T. R. 4. Brooksby v. Watts, 6 Taunton, 333. (1 Eng. C. L. 404.) Matson v. Booth, 5 M. & S. 223. Bathe v. Taylor, 15 East, 146. Collins v. Prosser, 1 B. & C. 682. (8 Eng. C. L. 183.) i Ante, 652. Anle, 655. A bond conditioned for the payment of an annuity to the wife of the obligor unless she should at any time molest him on account of her debts, or for living apart from her, is not discharged by a subsequent cohabitation, unless there appears a clear intention that it should be avoided in the event of a reconciliation. Wilson: v. Mushett, 3 B. & Ad. 743. (23 Eng. C. L. 175.) * Co. Litt. 264, b. A bond given to a single woman does not upon her marriage vest absolutely in her husband, but being a mere chose in action, it must first be reduced into possession, and therefore he cannot sue alone upon it, but his wife must be joined. Bac. Ab. Feme. (K.) Rumsey v. George, 1 M. & S. 180. Milner v. Milnes, 3 T. R. 627. If the husband neglect to reduce it into possession during his life, his wife, if she survives him, and not his personal representatives, will be entitled to it. Co. Litt. 351, a. If the bond be given to the wife during coverture, or to the husband and wife, he may sue alone, or they may both join. Coppin v. 2 P. Wms. 497. And if he does not sue upon it in his lifetime, it will survive to her. Philliskirk v. Pluckwell, 2 M. & S. 393. 1 Rol. Ab. Bar. & Feme, (H.) And if a bond given to the wife alone be not put in suit during her life, the husband can sue upon it only as her administrator after her death. Bac. Ab. Obl. (D.) riage. money after the obligor's death, made to a woman in contem- be displation of the obligor's marrying her, and intended for her charged benefit if she should survive, is not released by their marriage. by marAnd if the marriage be pleaded in bar to an action of debt on the bond against the heir of the obligor, a replication stating the purposes for which the bond was made will be good, for they are consistent with the bond and condition." If several are jointly and severally bound, the obligee makes If the obone of them his executor, and he administers, this will operate ligee as a release of all, for a personal action once suspended by the make the obligor his voluntary act of the party entitled to it is gone for ever. But executor, if the obligee make the executor of one of the obligors his exe- it will discutor the debt is not discharged, for the executor holds it in charge the another right, and he may sue the surviving obligor. bond. If one of several joint and several obligors make the obligee Obligee executor, and he administers and has assets, it operates as a made exedischarge of all. But if he has no assets, the debt is not ex- cutor of tinguished, and he may sue the heir if bound. And if the the obliobligee does not administer, the debt is not released, and there- gor. fore where one of two joint and several obligors appointed the *obligee and another person his executors, and the latter ad- *760 ministered, but the obligee did not, and having died, he left the person who had administered his executor also; it was held that the executor might sue the obligor. In debt on a joint bond by three, it was held, that a release given by the obligee to the representative of one of the obligors, who died, was no answer to an action against the surviving obligors.i of the ob ligor. The bankruptcy of the obligor and a certificate will operate Bankruptas a discharge of his liability under the bond, if the debt could cy or inbe proved under the commission. So does a discharge under solvency the insolvent debtors' act, if the bond is forfeited and inserted in the schedule, for when the bond is forfeited the penalty becomes a debt, from which the insolvent is entitled to be relieved by the order of the court. To an action against husband and wife, on a bond given by the wife before marriage, the husband's discharge under the insolvent act is a good plea; and his discharge is a discharge of the wife for ever. * Milbourn v. Ewart, 5 T. R. 381. * Rawlinson v. Shaw, 3 T. R. 557. b Needham's case, 8 Co. 136. Dorchester v. Webb, Sir W. Jones, 345. J. 548. Bac. Ab. Obligation, (D.) h Dorchester v. Webb, ante, 759. i Ashbee r. Pidduck, 1 Mees. & Wels. 564. 5 See ante, 320. Clements v. Langley, 5 B. & Ad. 372, (27 Eng. C. L. 97,) and the cases there referred to. Salmon v. Miller, 3 B. & Ad. 596. (23 Eng. C. L. 151.) (27 Eng. C. L. 82.) SECTION X. THE DECLARATION. As most of the rules to be observed in framing the declaration in covenant are equally applicable to cases of debt upon a bond, a few observations only are required in this place. We have seen that at common law the obligee, on proof of a breach of the condition of a bond, might enforce the payment of the penalty, however disproportioned it might be to the damage actually sustained, and that the obligor could be relieved only by resorting to a court of equity; to remedy this inconvenience, it was enacted, by the 8 & 9 W. III, c. 11, s. 8, The plain- that "in all actions upon bonds, or any penal sum, for non-pertiff may formance of any covenants or agreements in any indenture, assign several deed, or writing contained, the plaintiff may assign as many breaches. breaches as he may think fit, and the jury upon trial of such *761 action shall and may assess, not only such damages and costs of suit as have heretofore been usually done in such cases, but also damages for such of the said breaches so to be assigned as the plaintiff upon trial of the issues shall prove to have been broken; and that the like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions; and if judgment shall be given for the plaintiff on demurrer, or by confession of nil dicit, the plaintiff upon the roll may suggest as many breaches of the covenants and agreements as he shall think fit, upon which shall issue a writ to the sheriff of that county where the action shall be brought, to summon a jury to appear before the justice or justices of assize, or nisi prius, of that county, to inquire of the truth of every one of those breaches, and to assess the damages that the plaintiff shall have sustained thereby; in which writ it shall be commanded to the said justices, that they shall make a return thereof to the court whence the same shall issue, at the time in such writ mentioned; and in case the defendant, after such judgment entered, and before any execution executed, shall pay unto the court, to the use of the plaintiff, his executors, or administrators, such damages so to be assessed, by reason of all or any of the breaches of such covenants, together with costs of suit, a stay of execution of the said judgment shall be entered upon record; or if, by reason of any execution executed, the plaintiff, or his personal representative, shall be fully paid or satisfied all such damages, with costs of suit, and all reasonable charges and expenses for executing the said execution, the body, lands, or goods of the defendant shall be thereupon forthwith discharged from the said execution, which shall likewise be entered upon record; but, notwithstanding, in each case such judgment shall remain as a further security to answer to the plaintiff and his personal representative, such damages as shall be sustained for further breach of any covenant in the said indenture, &c., upon which the plaintiff may have a scire fucias, upon the said judgment against the defendant, or against his heir, terre-tenant, or his personal representative, suggesting other breaches of the said covenants or agreements; and to *762 summon him or them respectively, to show cause why execution shall not be had upon the said judgment; upon which there shall be the like proceeding, as was in the action of debt upon the said bond, for assessing damages upon trial of issues joined upon such breaches, or inquiry thereof, upon a writ to be awarded as aforesaid, and upon payment or satisfaction as aforesaid, of such future damages, costs, and charges, all further proceedings are again to be stayed; and so toties quoties; and the defendant,his body, lands, or goods, shall be discharged out of execution as aforesaid." d must be Before this statute the plaintiff could only assign one breach In what of the condition; for if he assigned more, the declaration would cases breaches have been bad for duplicity; because a forfeiture was incurred equally as much by one breach as by several. This enactment assigned is calculated to give relief to the plaintiffs to the extent of the pursuant damage sustained, and to protect defendants against the pay- to the sta ment of further sums than what are in conscience due. It has tute. been held that the statute is compulsory on the plaintiff to proceed in the manner which it prescribes. The statute is not confined to cases where the covenants or agreements are in a distinct instrument from the bond; the condition of the bond is an agreement in writing within the statute. It extends also to a bond for the performance of an award. Where a bond upon the face of it appeared to be conditioned for the payment of a sum certain, but by an indenture of the same date, declaring the purposes for which the bond was executed, it was agreed that it should be lawful for the obligees in the bond to commence an action and to proceed to judgment whenever they should think fit, and upon judgment being obtained to issue execution, and that the judgment should be a security for the payment to the obligees, on demand, of all sums of money which then were or might thereafter become due to them. A judgment having been entered up by virtue of this deed, the obligees issued execution *without assigning breaches or execu- *763 ting a writ of inquiry. Held, first, that this was a bond substantially conditioned for the performance of an agreement within the statute, and that the obligees ought to have assigned breaches. So a bond conditioned for the payment of a certain a King v. Gole, Freem. 156. Symons v. Smith, Cro. Car. 176. Barnard v. Mitchell, 1 Vent. 114. 3 Salk. 108. 377. Hardy v. Bern, 5 T. R. 636. Roles v. Rosewell, id. 538. Drage v. Brand, 2 Wils. • Collins v. Collins, 2 Burr. 820-6. a Welch v. Ireland, 6 East, 613. • Hurst v. Jennings, 5 B. & C. 650. (12 Eng. C. L. 343.) |