BUTLER V. WIGGE. BUTLER v. WIGGE. 1 Saunders' Reports, 64 [abridged]. Conditions of Bonds. TO support the condition of a bond, the court will transpose or reject insensible words, and construe it according to the obvious intent of the parties. In the course of the argument in this case it was conceded by Saunders, of counsel with the defendant, that if the condition of a bond be insensible or void, the obligation will be single (1). But he laid it down that if the condition consists of two distinct parts, one good and the other void, and the obligor perform the good part, or be excused by law therefrom, the bond is saved (b). And Saunders relied on a case from the book of 39 H. 6, 10 where the condition of an obligation was, that if the defendant did not pay so much money, the obligation should be void, and it was adjudged upon the words, that the obligation was saved by the non-payment of the money, though the intention of the parties was that the defendant should be bound to pay the money, and not to omit paying it, as was expressed by the words (2). (1) So is Co. Litt. 206 a. 1 Rol. Abr. 419 (C.), pl. 2. Ibid. 420 (E.), pl. 1. 3 Lev. 74, 75. Graham v. Crawshaw. With respect to impossible or void conditions, the following distinction has been taken; that where the condition is underwritten or indorsed, that is only void, and the obligation is single (a), but where the condition is part of the lien itself, (a) See Sanders v. Coward. 15 M. & W. 56, per Parke, B. and incorporated therewith (as in a recognizance by bail), if the condition be impossible, the obligation is void. 1 Salk. 172. Pullerton v. Agnew. (2) S. C. Bro. Conditions, 98. Obligation, 42, and 1 Rol. Abr. 419 (B.), pl. 1, 2. But this case has been overruled by subsequent authorities. 2 Mod. 285. Wells v. Wright. S. C. Freem. 247, pl. (b) S. P. 1 Bos. & Pull. 242. Da Costa v. Davis. Conditions of Bonds. In the course of the argument it was laid down by the court that the condition, being for the benefit of the obligor, shall be construed favourably for his advantage (3). BUTLER v. WICGE. 261. 1 Sid. 105, 106. Vernon v. Alsop. S. C. 1 Lev. 77. 11 Mod. 193. Wells v. Ferguson. S. C. 2 Salk. 463. 11 Mod. 199. 11 Mod. 199. Dougl. 383, 384. 3d ed. Bache v. Proctor (c). (3) So is Sir W. Jones, 181. Eaton v. Butter. S. C. Palm. 552. 3 Lev. 137, 138. Stanley v. Fearne. 1 Wils. 61. Box v. Day. 1 Ld. Raym. 38. Avery v. White. If there be an omission of the usual conclusion of a condition, namely that then the obligation shall be void, &c., yet the condition is good, and it is a good defeasance of the bond. Insensible and repugnant words shall be rejected. 2 Saund. 79. Mauleverer v. Hauxby. Cro. Jac. 358. Goodman v. Knight. 3 Lev, 21, 22. Langdon v. Goole. 2 Salk. 462. Cromwell v. Grunsden. S. C. 1 Ld. Raym. 335. 2 Str. 945. (c) This principle has been extended to promissory notes. Therefore a note containing the words "I I promise not to pay," was held to be a valid note. See Bayley on Bills, 4th ed. 6. (d) 4 M. & S. 66. Newman v. Newman. S. P.; and see 5 Taunt. 727. Greenwood v. Bishop of London. 1 Marsh. 292. S. C. () 3 H. & N. 572, 579, 580. Lambert v. Branthwaite. Where the condition of a bond is entire, and the whole be against law, it is void; but where the condition consists of several different parts, and some of them are lawful, and the others not, it is good for so much as is lawful, and void for the rest. 2 Bro. C. P. 381. Rex v. Yale. S. C. 5 Vin. 99, pl. 9. MSS. 2 Ld. Raym. 1459. Chesman v. Nainby, Hob. 14. Norton v. Simms. S. C. Moore, 856, 857, pl. 1175. 3 Rep. 83 a. Twyne's case. 1 Vent. 237. Mosdel v. Middleton (d). But if a bond is given with condition to do a thing against an act of parliament, and also to pay a just debt, the whole bond is void; because the letter of the statute makes it void, and is a strict law. Hob. 14 (e). Payne v. Mayor of Brecon, per Bramwell, B. But, unless the act of parliament expressly enacts, that all securities and instruments which contain matters contrary to the act shall be absolutely void, so much only of such securities and instruments as is contrary to the act will be avoided, and the rest will stand good; as in the case of the property-tax acts, which were Conditions of Bonds. repeatedly held to avoid only so much of the indenture or bond as was contrary to the acts; and that, whether the covenants and clauses were separate or not. 11 East, 165. Gaskell v, King. 13 East, 87. Wigg v. Shuttleworth. 15 East, 440. Howe v. Synge. 4 Taunt. 105. Fuller v. Abbott. See 8 East, Kerrison v. Cole. 1 B. & C. 327. Biddell v. Leader. [7 Bing. 423. Collins v. Gwynne. 5 M. & P. 276. S. C. 2 Bing. N. C. 7. S. C. in error. 3 H. & N. 572, 579, 580. Payne v. Mayor of Brecon.] TURBILL'S CASE. 1 Saunders' Reports, 66a [abridged]. Foreign Attachment. AN attorney or other officer of Q. B. shall not have his privi- TURBILL'S lege against foreign attachments (1) in London. [Lodge's Case. "new surety to the plaintiff for "the said debt; and judgment shall 'be, that the plaintiff shall have "judgment against him, and that "he shall be quit against the other, "after execution sued out by the "plaintiff." 22 Edw. 4, 30 b. 1 Rol. Abr. 554, pl. 4. Godb. 400, 401, pl. 483. Hern v. Stubbs. But if no execution be sued out, the plaintiff may go on with the suit below, and the defendant may sue his debtor, notwithstanding the judgment; Dyer 83 a.; so certified by Brook, recorder, 7 Edw. 6 (6). The plaint may be exhibited in the mayor's or sheriff's court; but it is said that also 3 Dougl. 281. Tam v. Williams. 36 L. J. Exch. 235, per Willes, J., in Dom. Proc.] (b) 1 B. & B. 491. Wetter v. Rucker. S. P.; where the court held, that the custom that execution must be sued out should be strictly pursued, and that no voluntary payment by the garnishee to the plaintiff will protect the garnishee from his liability TURBILL'S Case. Foreign Attachment. case, Dyer, 287 a, in marg. Whipp and Gallows' case, 1 Leon. 189. Edwards and Tutbury's case, 1 Show. 11. S. P., the proceeding in the mayor's court is more expeditious and less to the defendant. [See also 4 Bing. N. C. 782. Magrath v. Hardy. S. P. 6 Scott, 627. S. C.] To give the lord mayor's court jurisdiction, it is not sufficient that the garnishee reside within the city; the debt due from the defendant to the plaintiff must also have accrued there. Traub and others v. Schmidt. Manning's Index, Appendix, Foreign Attachment, 350. [17Q. B. 171, 213. Wadworth v. Queen of Spain. De Haber v. Queen of Portugal, per Lord Campbell, in delivering the judgment of the court. 1 H. & Colt. 338. Cox v. Mayor of London. S. C. in Cam. Scace, 2 H. & Colt. 401. S. C. in Dom. Proc. 36 L. J. Exch. 225, 235, per Willes, J. It was decided in this last case by the House of Lords that the court of the mayor of the city of London is an inferior court of local jurisdiction, confined to the limits and liberties of the city. See 2 Law. Rep. C. P. 32. Frith v. Guppy. But if an action be brought by the defendant below against the garnishee, and payment under the foreign attachment be set up as a defence, it is a bad replication to allege that the debt sued for in the mayor's court did not arise within the jurisdiction of expensive (c). The plaintiff finds common pledges to prosecute his that court; the garnishee is safe by paying under the judgment of the court. 17 Q. B. 213, per Lord Campbell. 2 E. & B. 605. Westoby v. Day, post, 91, n. (f). But where an action was brought by an administrator for a debt due to the deceased, and payment under foreign attachment was pleaded as a defence, it was held a good replication to allege that before the time of affirming of the plaint in the lord mayor's court the defendant below was dead. 18 C. B. N. S. 657. Matthey v. Wiseman. In this case the court distinguished it from Westoby v. Day, on the ground that there was no defendant in the mayor's court who could appear and plead, and the proceedings were all null and void. And the court further held that it made no difference that the letters of administ ation were granted before execution had, and that (as was suggested) by the custom the administrator might have appeared in the lord mayor's court and dissolved the attachment. For the non appearance of the administrator cannot give life to a suit which was a nullity from its inception.] (c) An attachment in the mayor's court, if there be no op |