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razure or interlineation, the execution ought to be proved, although the bond be above thirty years old, by the subscribing witness, if living, and if he is dead, by proving his hand-writing, in order to encounter the presumption arising from the razure, &c.
In the case of a joint bond, if one obligor only be sued, he must plead the matter in abatement", for he cannot take advantage of it in evidence on the general issue non est factumo, although it appear upon the declaration that there are other obligors P; nor can he demur upon oyer 4. So where the bond is executed by three obligors, and two only are sued". (See the new provision as to pleas in abatement under stat. 3 & 4 W. 4. c. 42. s. 8. ante, p. 467. n.] But where it appears on the record, the objection may be taken in arrest of judgments.
2. Accord and Satisfaction.
It appears from some of the bookst, that to debt on bond an accord executed before the day of payment may be pleaded. I am not, however, aware of any case, in which this point has been expressly determined. If such plea can be pleaded, the following rules ought to be attended to; first, that the thing given in satisfaction be of some value in contemplation of law u; hence, a release of an equity of redemption is not
n Watts v. Goodman, Ld. Raym. 1460. o Whelpdale's case, 5 Rep. 119. a.
Stead v. Moon, Cro. Jac. 152. p South v. Tanner, 2 Taunt. 254. q Gilbert v. Bath, Str. 503. r South v. Tanner, 2 Taunt. 254. Gaul.
ton v. Challiner and Wilkinson, 1
Wms. Saund. 291. e. n. s Horner v. Moor, B. R. M. 24 Geo. 2.
cited by Aston, J. 5 Burr. 2614. t Anon. Cro. Eliz. 46. cited in Com.
Dig. Accord, (A. 1.) u Preston v. Christmas, 2 Wils. 86.
or the deed must be rejected. And he said, a deed being produced in B. R. and going to be read, it appeared that Sir J. Jekyll was a subscribing witness ; upon which the court said, they knew he was alive, and if he did not come to prove it, plaintiff must be nonsuited. It was mentioned to have been said by Yates, J. on a former circuit, that, for the sake of practice, the witness should not be admitted to prove an old deed, even if he attended for that purpose ; but Perrot, B. retained his opinion, and said, that an old deed is admitted, only on a presumption that the witnesses are dead; but when the contrary is made to appear, they must be called. Sed quæ. And see Doe d. Oldham and Wife v. Wolley, 8 B. and C. 24 contra.
sufficient: secondly, if the debt arises by the performance or breach of the condition, and not by virtue of the bond, the accord and satisfaction must be pleaded in discharge of the condition, and not of the bond; lastly, if the debt arises upon an obligation without a condition , satisfaction by deed only can be pleaded; for the bond itself cannot be discharged without specialty.
Accord and payment of part before the day, with a promise to pay the residue at a future day, which promise the obligee accepted in full satisfaction of the debt, is not a good plea; because the promise to pay is executory.
Although one bond cannot be pleaded in satisfaction of another a, yet payment of a less sum before the day in full satisfaction, and acceptance thereof in full satisfaction, may be pleaded in bar to debt on bond; because parcel of the debt, before the day, may be more beneficial to the obligee than the whole, at the day, and the value of the satisfaction is not material. But care must be taken in this case to plead the
payment of part to have been made in full satisfaction b; for if the plea states the payment of part generally, it will be bad.
To debt on bond the defendant may plead, that it was obtained by duress of imprisonment (10). This plea admits the deed, and the proof of the issue lies on the defendant. If the defendant can prove that he was compelled to execute the bond, when he was under an arrest, without legal process, or by the process, or warrant of a person not having legal authority", it is sufficient. So if the arrest was by warrant from a justice of the peace, on a charge of felony, where there had not been any felony committed e; or if the defendant having been arrested under legal process, was forced by tortious usage in prison, it will be construed a duress. The duress
x Neale v. Sheffield, Yelv. 192. b Id. Resolved.
Car. 85. Admitted in Pinnel's case, 5 Rep. 117, a.
(10) See the form of this plea in the Clerk's Assistant, 77.
must be of the person (11) of the defendant or his wife8; one, who is a surety only, cannot plead that the bond was obtained by duress of the principal h, where the bond is joint and severali. To the plea of duress the plaintiff may reply that the defendant was at large at the time of the execution k, and that he sealed and delivered the bond voluntarily, and not by duress of imprisonment.
4. Illegal Consideration,
1. By the Common Law— Immoral—In
Restraint of Trade, &c. 2. By Statute-Gaming-Sale of Office
1. By the Common Law—Immoral. A bond may be avoided, if it has been made upon an immoral consideration; as where the condition of the bond was, that the obligee and obligor should live together in a state of fornication bond given by a single man m, or a married man", in consideration of past cohabitation with an unmarried woman, is good; because it shall be intended as a compensation for the wrong done (12).
In Restraint of Trade.—With respect to bonds made in. restraint of trade, it may be observed, that wherever a sufficient consideration appears to make it a proper and useful contract, and such as cannot be set aside without injury to a fair contractor, it ought to be maintained, provided the restraint is limited to a particular place; but, if the restraint is
g Bro. Abr. Duress, pl. 18.
187. Adjudged on demurrer.
1 Walker v. Perkins, 3 Burr. 1568. 1
BI. Rep. 517. S. C. m Turner v. Vaughan, 2 Wils. 339. n Nye v. Moseley, 6 B. and C. 133.
(11) In 1 R. Abr. 687. pl. 3. it is said, that if a person executcs a deed by duress of his goods, he may avoid the deed; and 20 Ass. pl. 14. is cited, where a release made by an abbot, by duress, of his cattle, was holden void. But in Sumner and Feryman, Hil. 1708. cited in 2 Str. 917. it is said to have been holden, that a bond could not be avoided by duress of goods. See also Bro. Abr. Duress, pl. 16. S. P.
(12) See Marchioness of Annandale v. Harris, 2 P. Wms. 432.--Priest v. Parrot, 2 Vez. 160. and Gray v. Mathias, 5 Ves. Jun. 286. general, that is, not to exercise a trade throughout the kingdom, the bond is void (13). In debt upon bond, the defendant prayed oyer of the condition', which recited, that the defendant had assigned to the plaintiff a lease of a messuage and bakehouse in Liquorpond Street, in the parish of St. Andrew, Holborn, for the term of five years; and provided, that the defendant should not exercise the trade of a baker within that parish, during the said term: or, in case he did, should within three days after proof thereof made, pay to the plaintiff the sum of 501., then the bond should be void. The defendant then pleaded, that he was a baker by trade, that he had served an apprenticeship to it, by reason whereof the hond was void ; wherefore he traded, as it was lawful for him to do. On demurrer, the court adjudged the bond to be good, on the ground, that from the particular circumstances and consideration set forth, the contract appeared to be lawful and useful, and that the restraint was a particular restraint, founded on a valuable consideration. See also the case of Chesman v. Nainby, 2 Str. 739. 3 Bro. P. C. 349. in which the Courts of Common Pleas, King's Bench, and House of Lords, successively recognized the same principle, viz. that contracts entered into between two persons, to restrain one of them from setting up or exercising a particular trade or employment within a certain limited district and for a valuable consideration, were valid in law. o Mitchel v. Reynolds, 1 P. Wms. 181. cited in Homer v. Ashford, 3 Bing. 328.
(13) “The general rule is, that all restraints of trade (which the law so much favours,) if nothing more appear, are bad. This is the rule which is laid down in the famous case of Mitchel v. Reynolds, (which is well reported in 1 P. Wms. 181.; in which Lord Macclesfield took such great pains, and in which all the cases and arguments in relation to this matter are thoroughly weighed and considered.)But to this general rule there are some exceptions; as first, that if the restraint be only particular in respect to the time or place, and there be a good consideration given to the person restrained, a contract or agreement upon such consideration so restraining a particular person, may be good and valid in law, notwithstanding the general rule, and this was the very case of Mitchel v. Reynolds.” Per Willes, C. J. in the Master, &c. of Gunmakers v. Fell, Willes, 388. See further on this subject Gale v. Reed, 8 East, 86. “ By common law, any person may carry on any trade in any place, unless there be a custom to the contrary, and if there be such a custom, then a by-law in restraint of trade warranted by such custom will be good; but if there be no such custom, a by-law in restraint of trade will be bad.” Per Bayley, J, in Clark v. Le Cren, 9 B, and C. 58.
As to the limits within which a person may restrain himself from exercising his trade, it is impossible to lay down any rule for ascertaining in what cases such limits are reasonable and what not. În Chesman v. Nainby, the distance within which the obligor agreed not to exercise the same trade with the obligee, was half a mile only from the place where the obligee resided. In Clerk v. Comer, Cas. Temp. Hardw. 53. and 7 Mod. 230. 8vo. edit. S. C. by the name of Colmer v. Clark, the condition was, not to carry on trade within the city of Westminster, or bills of mortality, and the bond was holden to be good. And in a more recent case of Davis v. Mason, 5 T. R. 118. where the defendant had bound himself not to practise as a surgeon within ten miles of the plaintiff's residence, the court did not think the limits unreasonable, and on the authority of Mitchell v. Reynolds, the bond, being founded on a valuable consideration, was adjudged good (14). In Leigh v. Hind, 9 B. and C. 774. where the assignor of the lease of a public house in London, had covenanted that he would not keep a public house within the distance of half a mile from the premises assigned; it was holden, that the true principle of admeasurement was, to take the nearest mode of access.
It is impossible to enumerate every species of illegality for which a bond may be avoided : but, before I close this head, I cannot forbear to mention one case relative to it, which underwent a long and serious discussion. The case alluded to is that of Collins v. BlanternP, reported in 2 Wils. 347. It was an action of debt on bond, dated the 6th of April, 1765, in which defendant was jointly and severally bound with A. and B. in the penal sum of 7001. conditioned for the payment by A. and B. and the defendant, of the sum of 3501. on the 6th of May following. The defendant, having prayed oyer of the bond and condition, pleaded that two of the obligors, A. and B. and three other persons, stood indicted by John
Rudge, on five several indictments, for wilful and corrupt perjury, and had severally pleaded not guilty; that the several tra
p Cited in 5 East, 298.
(14) In Bunn v. Guy, 4 East, 190. an agreement entered into by a practising attorney in London, to relinquish his business and recommend his clients to two other attornies, and that he would not himself practise in such business within London and 150 miles from thence; and that he would permit them to make use of his name in their firm for one year; was holden to be a valid agreement.