i bond on defendant to certainly ill, but then fo is their plea, and the declaration must bent condi- ftand, for if the plaintiff had gone to iffue upon the plea, the verdict must have been fet afide, as in the cafe of Merrill v. Jocelyn, 10 Mod. 147. 7 Vin. Ab. 377. Fernegan v. Harrison, certain,plead Trin. 6 G. 1. Str. 317. tioned to pay folvit ad diem, if he prove payment before the day, it is fufficient, for he could not plead it. Winch v. Pardon, Mich. 1 G. 1. Bull. Ni. Pri. 174. S. C. Kel. A bond was conditioned 2. Debt on bond; the defendant pleaded payment before the day and it being found for the plaintiff, the court inclined to award a repleader according to the cafe of Merrill v. Jocelyn, Trin. 12 Ann. But it being observed at another day, that the time of payment was only alleged under a fcilicet, the court held it a good plea, on the act for the amendment of the law, as a a day. The payment before the exhibiting the bill, and then the iffue joined was material. The plaintiff had judgment. Cowne v. Barry, ment of mo- before fuch defendant pleaded pay- day, to which there was a replication, and a verdict for the plaintiff. But a repleader was awarded, as being an imma. terial iffue, for it finds no breach of the condition, because it might be paid before that day, and then the condition is performed; and it is not like the cafe where a condition is to pay upon fuch a day, for then there can be no legal payment till that day, an actual payment before being but in the nature of a depofit till the day. But here it would be a legal payment at any day. Tryon v. Carter, Mich. 8 G. 2. Str. 994 S. C. of Tryon v. Carter, Bull. Ni. Pri. 162. and Cunn. 71. 106. where it is faid the replication was, that the money was not paid on that day. And per C. Juft. wherever a particular act of performance is pleaded, and not a collateral matter, it is not fufficient for the plaintiff barely by his replication to meet the defendant's plea, but he must go on and affign a breach; and therefore, as the defendant has here pleaded a strict performance, the replication ought not only to have met the defendant's plea, but it should likewife have gone on further, and fhewn that the money was not paid at all. The cafe of Tryon v. Carter is faid by Lord Mansfield to be a very material cafe. "A bond conditioned for payment of money on or before the 25th December. Plea of payment on the 5th December. Replication, iffue and verdict for the plaintiff." This, faid his Lordship, was holden to be an immaterial iffue, and a repleader was therefore awarded, though it would have been conclufive if found for the defendant, but it did not conclude when found for the plaintiff. Vide Burr. 302. Vide Jernegan v. Harrifon, Str. 317. ante, pl. 1. Colborne v. Stockdale, Str. 493. Fletcher v. Hennington, Burr. 944. Blackft. 210. Anon. 2 Wilf. 173. 3. The condition of a bond was, that the obligor would leave to his children jointly 2007. The obligor died, leaving four children, and an action being brought on the bond, it was pleaded that the obligor, by his will, gave to the eldest son an eftate in land of more than the value of 50%, and to the other three children 50l. a-piece, to be paid to them as they should attain their respective ages of 21. Upon demurrer the plea was held ill, the matter pleaded being no performance of the condition of the bond. Taylor v. Bird, Mich. 24 G. 2. 1 Wilf. 280. 4. A bond was given for fecuring the payment of money by inftalments of certain fums on three particular days, and the condition ftated, that upon the payment of the faid fums on the faid days refpectively, the bond was to be void. Two of thofe days being paft, and neither of the two first fums paid, an action was brought on the bond; and the queftion was, whether it could be maintained? The court held clearly that it might, and cited a cafe, Coote v. Horvell, Mich. 18 G. 2. where it was holden upon a like condition, that an action lay upon 3. the failure failure of paying the firft fum. Hallet v. Hodges, Eaft. 25 G. 2. Sayer, 29. 5. An action of debt was brought upon a bond, conditioned that the defendant fhould, within three months after the expiration of fix years from the date of the bond, at the request of the plaintiff, refign and deliver up a certain vicarage into the hands of the proper ordinary, whereby it might become vacant, and the plaintiff prefent anew. The defendant pleaded that he did, within three months, &c. at the request of the plaintiff, offer to refign and deliver up into the hands of A. B., the proper ordinary, the faid vicarage; but that the faid ordinary refufed to accept the refignation. Upon demurrer the plea was holden to be bad, because it was not averred that the ordinary accepted the refignation. The ordinary was a ftranger to the obligee, and being fo, it was incumbent on the obligor to procure his acceptance of a refignation. Hesketh v. Gray, Hil. 28 G. 2. Say. 185. 6. In an action of debt on bond, oyer being prayed, it appeared, by a recital in the bond, that W. R. had by will be queathed to the defendant the remainder of an eftate for three lives, which the teftator had in a certain garden; and to the plaintiff he bequeathed a hogfhead of cider, to be paid him every year that apples enough fhould grow in the faid orchard to make two hogfheads of cider. The condition of the bond was, that the defendant fhould deliver to the plaintiff a hogfhead of cider every year, according to the true intent and meaning of the will. The defendant pleaded, that upon a certain day he fold his intereft in the orchard; that thereupon he agreed to deliver a hogfhead of cider to the plaintiff every year that apples enough fhould grow in the faid orchard to make two hogfheads of cider, in fatisfaction of the hogfhead bequeathed, although the hogshead of cider to be delivered by the defendant fhould be made of apples which did not grow in the orchard mentioned in the condition; that in purfuance of fuch agreement the bond was entered into, and that the defendant had performed the condition. The plea was held ill. For if the condition of a bond be in general and affirmative terms, it is fufficient to plead general performance of the condition. But if the condition. of the bond be fpecial, performance must be pleaded in the words of the condition, it must be pleaded of every thing comprifed in the condition. Rennell v. Rennel!, Trin. 29 & 30 G. 2. Say. 316. the cafe of 7. Action on a bond; the condition of which (reciting that A. Buller, J. had been appointed treafurer to the poor of the parish of B.) de- refembled clared, that if A. from time to time, and at all times while he con- Bache and tinued in that office, fhould, and did, render to the plaintiffs a others v. true, juft, and perfect account in writing, of all and every fum Proctor, to and fums of money that he fhould receive for the relief and c. B. where maintenance of the poor of the faid parish, the bond fhould be the condition void; the defendant, after oyer and plea of non eft factum, pleaded fecondly, that A. from time to time, and at all times while he should be continued void if the one in the of the bond was, that it obligor did not pay; and performance being of the literal the court held that not defeat continued in the office, did render to the plaintiffs a true, juft, and perfect account in writing, &c.; and a third plea not differing materially from the fecond, the plaintiffs replied, that by the pleaded on laft account rendered by A. to them, there appeared to be duethe ground from him, as fuch treasurer, a certain fum of money, and that expreffion, he was afterwards requested to pay that fum according to the form and effect of the faid condition, which 'he neglected and the palpable refused to do; and fo the plaintiffs faid, that A. did not from mistake of a time to time render to the plaintiffs a true, juft, and perfect acword fhould count in writing of all and every fum and fums of money, &c. the true in- according, &c. The replication to the third plea was nearly of the fame purport, only concluding that the faid A. did not render a true, juft, and perfect account of all and every fum and fums of money, without faying in writing. To this replication the defendant demurred fpecially; and it was infifted in fupport of the demurrer, that the non-payment and refufal was not a breach of the ftipulation to render an account in writing. But it was held by the court, that it was clearly the intention of the parties, and the fair conftruction of the condition, that the money fhould be paid by A., or, in default, by the defendant. Bache and others v. Proctor, Eaft. 20 G. 3. Doug. 382. tention of the parties. Vide Doug 384. [For more of Conditions in general, fee Accord, Actions of Affumpfit, Apportionment, Arbitrement, Covenant, Devise Entry, Grants, Heir, Mortgage, Notice, Obligation, Pleadings, Policy of Infurance, Rents, Refervations, Tender, Tout Temps Prift, and other proper titles. [A] 5Viner 344. [B] ¿Viner 356. Confeflion. See Abatement, Evidence, Nient Dedire, Traverse, and proper titles. other Confirmation. See Baron and Feme, Eftopple, Exchange, Tayle (D), and other proper titles. Conqueft. I THE conqueft by William of Normandy was like that of Canute before; a forcible transfer of the crown of England into a new family: but the crown being fo translated, all the inherent properties of the crown were with it transferred alfo. For the victory obtained at Haflings not being a victory obtained over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to was, the right to poffefs the crown of England, not to alter the nature of the government; and therefore as the English laws ftill remained in force, he must peceffarily make the crown fubject to those laws, with all its inherent properties. 1 Black. Com. 199. cites Hale's Hift. G. L. c. 5. Seld. Review of Tithes, c. 8. 2. A country conquered by the British arms, becomes a dominion of the king in right of his crown, and therefore neceffarily fubject to the legislature, the parliament of Great Britain. 3. The conquered inhabitants once received under the king's protection, become fubjects, and are to be univerfally considered in that light, not as enemies or aliens. 4. The articles of capitulation upon which the country is furrendered, and the articles of peace by which it is ceded, are facred and inviolable, according to their true intent and meaning. 5. The law and legiflative government of every dominion equally affects all perfons, and alfo properties within the limits thereof; and is the rule of decifion for all queftions which arife there. Whoever purchases lives or fues there, puts himself under the law of the place. An Englishman in Ireland, Minorca, Ile of Man, or the plantations, has no privilege diftinct from the natives. 6. The laws of a conquered country continue in force until they are altered by the conqueror. The abfurd exception as to Pagans mentioned in Calvin's cafe, fhews the univerfality and antiquity of the maxim. For that diftinction could not exist before the Chriftian æra: and in all probability arose from the mad enthusiasm of the Croifades. 7. If the king without the concurrence of parliament has a power to alter the old and introduce new laws in a conquered country, the legislation being fubordinate to his own authority in parliament, he cannot make any new change contrary to fundamental principles: he cannot exempt an inhabitant from that particular dominion; as for instance, from the laws of trade, or from the power of parliament, or give him privileges exclufive of his other subjects. Per Lord Mansfield, delivering the judgment of the Court of K, B. in Hall v. Campbell, Corup. 208. [D] 5 Viner 401. 8. But when a country is conquered, and ceded afterward by treaty, and the king by proclamation, reciting to be made for the purpose of inviting fettlers and fubjects, and that they might think their liberties and properties more fecure, declares, that he has given express power and direction to his governor, as foon as the state of circumstances of the colony will admit, to call an affembly, enact laws, &c., and afterward another proclamation to fettlers and inhabitants to become purchafers, three months after which a commiffion is made out to the governor to call an assembly as foon as the state of the ifland would admit thereof; the king by thefe acts has immediately and irrecoverably granted to all who were or fhould become inhabitants, or who had or fhould acquire property in the island of Grenada, and to all whom it might concern, that the fubordinate legiflation over the island fhould be exercised by fuch an affembly, with the confent of the governor and council. The crown therefore can no longer exercife fuch legislative powers over this country as it might have previously done. Hall v. Campbell, B. R. 15 Geo. 3. Cowp. 204. ¿Viner 402. Confent. See Authority, Conditions, Powers, Trial (S. a. 2), and other proper titles; and fee Maxims, beginning with the word Confenfus. [A] Confequential Confequential Lofles or Damages. 5Viner 403. See Actions (B), &c. and (H), &c. and other proper titles. |