case WEDDALL against MANUCAPTORS OF jocar of the difference between plead of  performance and plead in excuse S c ante Salkeld sergeant who be counsel for  the bail in answer to the objection against the plea that have be make when  the case be speak to last insist copious modern report er p upon a difference  between plead of performance and plead by way of excuse have this be plead by  way of performance he own it will have be nought but be contend that it be by  way of excuse and therefore well the only matter that can be plead as a  performance to this recognizance be either render the body or pay the  condemnation but this be none of those ergo a plea in excuse have it be a plea  of performance it have be nought because the issue join upon it will then  accord to the objection have be material only one way a plea in excuse in the  very nature of it imply a nonperformance and it be always decisive and  effectual because the court will intend nothing in favour of he that plead it  but what be contain in the very plea and therefore the bail have plead here  that the principal die ante emanation short catalog by way of modern report  excuse the court shall never intend the death of the principal between the  emanation and the return of the writ so that if at a trial upon this issue  there have be evidence that the principal be alive at the time of the  emanation of the writ judgement must have be give for the plaintiff nor will  any evidence have be receive of his death between the emanation and return as  for the case of debt upon bind and to loosen aid they plead they be not  parallel because plead as performance a cro James Robinson be entry Yelv roll  Rep a there be no doubt but accord with satisfaction though before the day may  be plead in bar of debt upon bind and yet the objection will bold equal here  videlicet that it be possible that though this plea shall be find against the  defendant yet he may pay the money accord to the condition of the bind at the  day and therefore the issue join upon this plea be material only one way now  this be a plea by way of excuse which suppose nonperformance plead be only set  forth that fact which in law be a good discharge if therefore the death of the  principal ante emanation short catalog be such a fact as in law discharge the  bail certain the bail may plead it Mr fortescue contra what be a good  discharge may no doubt be plead but then it must be plead proper and in due  form the proper way of plead it have be that the principal die before the  return of the capias ad to give satisfaction so be Thompson entry and all the  precedent the end and design of join issue be to be final and conclusive to  determine the matter one way or the other No issue can be join on this plea  that can be material both way and it be parallel with the case of hill v Manby  atwood v Coleman and merril v Josselyn a post Mod a where to loosen ante diem  be plead and hold that the other party have no remedy but by demurrer to the  plea modern report as to the second point namely the objection take by the  counsel for the defendant to the to know facias that the to know facias be  bring not only for the cost and damage give against the principal in the  original action but likewise for the nine pound additional cost adjudge upon  the writ of error whereas it appear upon oyer of the recognizance that the  bail be only bind to pay what be give against the principal in the original  action Mr fortescue answer first that the word predict shall refer only to the  hundred and five pound and not both to the hundred and five pound and the nine  pound too second that the conclusion secundum form et execution recogn predict  do necessary tie down the word predict to such damage and cost only as can be  recover by that recognizance three that this fault may be cure by enter a  nolle attendance as to the nine pound and take out execution only for the  hundred and five pound a to know facias be in the nature of a action of debt  and therefore to be govern by the same reason if I demand too much I may  release it and this release be no falsify the writ one may release a ill  demand as well as a good one b Hobart Michaelmas term Ann incledon v crips  style thesau narrow places b Salkeld reply to this last point that be never  before beard of nolle pursue be enter upon writ that he have hear of abridge  count but never of abridge modern report er p writ that this be not only a  writ but a judicial writ which be the act of the court and must have a  foundation on which it be warrant Parker chief justice there be no doubt a  difference between plea of performance and plea of excuse in many respect but  the question here be whether you can make that time which be immaterial part  of the issue modern report it seem to be a general rule of reason as well as  law that circumstance ought never to be put in issue any further than they  touch the matter in question and whatever issue do otherwise be immaterial as  to the other point the word predict must refer to the nine pound as well as  the hundred and five pound because there be no other end or purpose whatsoever  that the nine pound be mention but only that the predict may relate to it the  word de plea predict must relate to both plead or else it be uncertain to  which a to know facias be a judicial writ find upon record and therefore if a  writ issue out not warrant by the record it must be quash Pratt justice I do  upon the first argument think the plea nought now I be somewhat doubtful there  be no doubt but the defendant may have plead that the principal die before the  return of the capias but since he have plead more to his disadvantage I doubt  he must prove his excuse in the same way that he have plead it though this or  that particular day be immaterial yet time be material and the plead of the  death of the principal general without confine it to some time will not have  be good since therefore it be necessary for he to confine it to some time and  he have confine it to this time though this be a narrow portion of time than  what he be oblige to yet since it be his own excuse he must stand and fall by  it and the court will not intend a fact in his favour which he neglect to  plead suppose a bind of a hundred pound condition for the payment of fifty  pound the defendant plead twenty pound pay in satisfaction and upon the trial  of the issue it appear that ten pound be receive in satisfaction the verdict  must go against the defendant and yet the sum of ten pound receive in  satisfaction be as good a discharge modern report in law as the sum of twenty  pound but be a plea in excuse he be bind to prove it as he plead it Parker  chief justice a difference in the sum vary the accord but so do not a  variation of time suppose a bind condition for the payment of money before  such a day and the defendant plead that he pay the money such a day accord to  the condition of the bind and suppose upon evidence the fact come out thus  that the money be pay after the day he plead payment upon but before the day  mention in the condition of the bind and this be find special what be to be do  if it be once lie down as a principle that whatever be plead by way of excuse  be necessary to be prove and part of the issue then my brother Pratt be right  Pratt justice if a person have judgement to recover two distinct sum and be  sensible that he have a right only to one be release the other and take out  execution for the one only can this judgement be reverse and yet the judgement  be the act of the court but here the to know facias though it be the act of  the court yet be not pure the act of the court but ground upon the prayer of  the party Mr fortescue have cite no precedent but I see nothing in the nature  or reason of the thing why a nolle attendance may not be enter as to the nine  pound