abbot plaintiff against johnson defendant debt in a action of debt upon a  obligation the case be this the plaintiff be bind in a bind as surety with the  defendant for payment of money upon a day to come and have a counterbond from  the defendant for save of he harmless the defendant pay not the money at the  day upon this his default the plaintiff bring his action upon his counterbond  to this the defendant plead non injure the plaintiff reply and show all this  matter and that he request the defendant to pay this money which he do not do  unde upon this the defendant demurrer in law the sole point insist upon be  whether this nonpayment of the money Bulstrode at the day by the defendant be  a present forfeiture of the counterbond or not without any other damage happen  thereby unto the plaintiff it be urge for the defendant that this be no  forfeiture of the counterbond because he be not as yet any way damnified by  reason of this default no process be sue out against he e fol this matter  there debate where the condition of the bind be for save of he harmless be  bind for the other the defendant there plead quod non to be injure the  plaintiff there show that a plaint be affirm against he so that he dare not go  out of his house about his business and so by this he be damnified it be there  urge by choke that this be no forfeiture till the sheriff have arrest he for  though a capias be out against he peradventure the sheriff will not take he  nor execute his writ and then no forfeiture it be urge therefore that he ought  in facto to show some particular matter of damnification on the other side it  be there urge by Littleton that he have notice of the capias and that  therefore he ought to appear in person or be utlage and so come to London  retain a attorney and by this damnified e fol the condition of the bind there  be that the defendant at his own cost shall warrant and defend to the  plaintiff certain land for twelve year of which he have feoff the plaintiff  and this against all person if oust by a stranger the bind forfeit by the word  defend h fol b Elizabeth dyer f and h f a b to this purpose Q h f brook title  condition plea e fol he be to show how he save he harmless Cok pars fol in  Broughlons case there be a particular damnification show the plaintiff himself  pay the money but it be urge that the nonpayment of the money at the day be no  present breach nor forfeiture for the plaintiff it be urge that this  nonpayment at the day be a present forfeiture of the counterbond that the  demurrer here be not good the defendant plead non injure the plaintiff set  forth a request by he make to the defendant to pay the money the which he do  not pay all this show by the plaintiff and to this the defendant demurrer in  law it be urge that this nonpayment at the day be a present forfeiture of the  counterbond and that for these reason S Bulstrode er p l the plea of non  injure imply in it a save harmless and he ought to have show how he save he  harmless the condition by this nonpayment be break because there be a present  penalty by this give and a loss hereby incur on the surety like unto the case  in Littleton in his chapter of condition where the condition be to make a  feoff and before this perform he take a wife or do acknowledge a statute this  be a present breach because a present loss and charge this be the reason of  the Warrantia paper which may be sue before question as appear by Fitzherbert  nat short catalog because to fear implacitari Haughton justice a damnification  will not be by a bare fear dodderidge justice this matter be very well debate  in e fol before remember and so without any further debate this case be  adjourn afterward S termin Hillar James b r this case be move again and the  book of e and Broughlons case coke pars be cite the court agree herein that  the condition be to save the plaintiff harmless the which the defendant here  have not do by his failer of payment at the day by the which he have put the  plaintiff in danger to be arrest which be a damnification unto he and so  consequent a present breach of the condition and a for Bulstrode feiture of  the counterbond and that by reason of the defendant nonpayment of the money at  the day the plaintiff have just cause of action upon his counterbond that the  action be well bring the defendant demurrer not good and so by the rule of the  court judgement be give and so enter for the plaintiff