a report of a case argue in the common bench before all the justice of the  same bench in Michaelmas term in the four year of the reign of king Edward the  six between lewis dive late sheriff of Bedf plaintiff and John maningham  defendant in a action of debt upon a obligation bring by the say plaintiff  against the defendant the record be as follow rot Bedf declaration John  maningham late of Baldock in the county of Hertford draper otherwise call John  maningham of Baldock in the county of Hertford draper be summon to answer  Lewis dive esquire late call Lewis dive esquire sheriff of the county of  Bedford of a plea that be render to he pound which he owe he and Plowden er p  unjust detain c and whereupon the same Lewis by Thomas Grendon his attorney  say that whereas the aforesaid John the last day of may in the thirtyeighth  year of the reign of the Lord Henry the eight late king of England t e father  of the lord the king now at Bedford by his certain write Obligatory  acknowledge himself to be bind to the same Lewis in the aforesaid to be pay to  the same Lewis on the Feast of Pentecost then next come nevertheless the  aforesaid John although often request the aforesaid pound to the same Lewis  have not yet render but the same to render to he have hitherto refuse and yet  do refuse wherefore be say that be be damnified and have damage to the value  of shilling and therefore he bring suit c and he produce here in court the  write aforesaid which witness the debt aforesaid in form aforesaid the date  whereof be the day and year abovesaid c plea and the aforesaid John by John  Poly his attorney come and defend the force and injury when c and pray oyer of  the write aforesaid and it be read to he c and also pray oyer of the  endorsement of the same write and it be read to he in these word the condition  of this obligation be such that if one Thomas maningham of Luton in the county  of Bedford yeoman save and keep harmless the within name sheriff against our  sovereign Lord the king and one Thomas Palley of London fishmonger and at all  time and time be all the commandment of the say sheriff as a true prisoner to  appear before the king justice at Westminster or elsewhere within the king  realm that then this obligation to be void and of none effect or else to stand  in its full strength and virtue which be read and hear the same John maningham  say that the aforesaid Lewis his action aforesaid thereof against he ought not  to have because be say that at a parliament of the say Lord Henry late king of  England the six from Conquest hold at Westminster the twentyfifth day of  February in the twentythird year of his reign among other thing it be enact  that no sheriff sheriff sheriff clerk steward or bailiff of liberty servant or  bailiff nor coroner shall take any thing by colour of their office by  themselves or by any person to their use of any person Plowden for make a  return or panel and for every copy of a panel d and the aforesaid sheriff and  all the other officer and minister aforesaid shall let out of prisonall and  all manner of person by they or any of they arrest or be in their custody by  virtue of any writ bill or warrant in any action personal or by cause of a  indictment of trespass by reasonable surety of sufficient person be sufficient  within the county where such person be so let to bail or mainprize to keel  their day in such place as the aforesaid writ bill or warrant shall require  such person or person as shall be or then be in their custody by condemnation  execution capias utlagatum or excommunicate surety of the peace and all such  person as shall be or then be commit by special command of any justice and  vagabond refuse to serve accord to the form of the statute of labourer only  except and that no sheriff nor any of his officer or minister aforesaid shall  take or cause to be take or make any obligation for any cause before recite or  by colour of their office but only to themselves of any person nor by any  person as shall be in their custody by course and order of law but by the name  of their office and upon condition that the aforesaid person appear at the day  contain in the say writ bill or warrant d in such place as the aforesaid writ  bill or warrant shall require and if any of the aforesaid sheriff or the  officer or minister aforesaid shall take any obligation in any other form by  colour of their office that the same obligation shall be void as b the same  Act among other thing more full appear and the same John maningham say that  after the make of the aforesaid Act of parliament and before the make of the  write aforesaid to wit the eighteenth day of may in the thirtyeighth year of  the reign of the Lord Henry late king of England the eight since the Conquest  one Thomas Palley of London fishmonger sue forth out of the court of chancery  of the say late king then be at Westminster in the county of Middlesex a  certain writ of the say late king to set free facias against the aforesaid  Thomas maningham direct to the then sheriff of the aforesaid county of Bedford  by which say writ the same lord the king recite that whereas Thomas maningham  of Luton in the county of Bedford yeoman before the reverend Edward Montague  knight chief justice of his bench depute to take recognizance of debt  acknowledge himself to owe to Thomas Palley citizen Plowden er p and  fishmonger of London two hundred mark sterling which he ought to pay he on the  Feast of easter then next to come and have not yet pay the same as it be say  the king command he by his writ to take the body of the aforesaid Thomas  maningham if be be a layman and he safe keep in the prison of the say late  king until he shall full satisfy the debt of the aforesaid Thomas Palley and  careful to extend and appraise accord to the true value thereof all the land  and chattle of the say Thomas maningham in his bailiwick by the oath of good  and lawful man of the same bailiwick by who the truth of the matter may be  better know and to cause they to be seize into the hand of the say late king  and to be deliver to the aforesaid Thomas Palley until he shall be full  satisfy for his debt aforesaid accord to the form of the statute of  Westminster for the recovery of such debt late make and provide and how the  same precept of the say late king be execute he shall certify by his letter  seal to the same late king in his chancery at ascertain day then pass  wheresoever he shall then be and that he shall have there the writ aforesaid  and the same late king command his sheriff of London Middlesex and Hertford  that they shall take the body of the aforesaid Thomas maningham if he be a  layman and he safe keep in his prison and that they shall careful extend and  appraise all the land and chattle of the say Thomas maningham in their  bailiwicks and cause they to be seize into the hand of the say late king in  form aforesaid and the same sheriff return into the chancery of the say late  king that the say Thomas maningham in the writ aforesaid name at the day and  time of the recognizance of the debt in the same writ specify and afterward be  and now be seize in his demesne as of freehold of six message four garden six  acre and a half of arable land with the appurtenance in Luton aforesaid in the  aforesaid county of Bedford and further that the aforesaid Thomas maningham at  the time of the recognizance aforesaid or at any time afterward have do any  other or more manor message land or tenement good or chattle in his bailiwick  which may in anywise be extend and appraise or seize into the hand of the say  late king which say land and tenement as also all the good and chattle  aforesaid he have cause to be seize into the hand of the say late king as it  be command he and that the aforesaid Thomas maningham be not to be find in his  bailiwick wherefore the same late king command the aforesaid late sheriff of  Bedford that he shall deliver to the same Thomas Palley the aforesaid message  garden land and tenement with the appurtenance and also the good and chattle  aforesaid if he shall be Willing to receive they at the extent and  appraizement aforesaid to have that be to say the say good and chattle in part  of satisfaction of the debt aforesaid and also to hold the message garden land  and tenement aforesaid with the appurtenance to he and his assign as his a see  b n c a freehold until he shall be full satisfy his debt aforesaid together  with his damage cost and expense which he have sustain in this behalf and  nevertheless that he shall take the body of the aforesaid Thomas maningham if  he be a layman and he safe keep in the prison of the say late king until he  shall full satisfy the say Thomas Palley for his debt aforesaid together with  his damage cost and expense abovesaid in form aforesaid and how this precept  of the say late king be execute he shall make know by his letter seal to the  same late king in his chancery on the morrow of the ascension of our Lord then  next come wheresoever he shall then be and that he shall have then there that  writ at which say morrow Plowden of the ascension of our Lord before the same  late lord the king in his chancery the same chancery then be at Westminster in  the county of Middlesex the same late sheriff return that by virtue of that  writ direct to he he on the thirty day of may in the thirtyeighth year of the  reign of the say late king appraise and deliver to the aforesaid Thomas Palley  the message garden land and tenement above write with the appurtenance as also  the good and chattle aforesaid to have to wit the say good and chattle in part  of satisfaction of the debt aforesaid and also to hold the message garden land  and tenement aforesaid with the appurtenance to he and his assign as his  freehold until he shall be full satisfy the debt aforesaid together with his  Plowden er p damage cost and expense which he have reasonable sustain in this  behalf and also that he have take the body of the aforesaid Thomas maningham  and have keep the same in the prison of the say late king in form aforesaid  and the same John maningham further say that the aforesaid Thomas maningham at  Luton in the aforesaid county of Bedford be arrest by virtue of the aforesaid  writ above signify and for that cause be imprison by the say Lewis dive he the  same Lewis then be sheriff of the aforesaid county of Bedford at Bedford in  the same county of b rd under the custody of the say Lewis then sheriff of the  same county and the same Thomas be so imprison the same John for the delivery  of he out of prison by the aforesaid write Obligatory bind himself to the same  Lewis then sheriff of the same county in the aforesaid pound and this he be  ready to verify wherefore for that the write aforesaid be not make on such  condition as by the statute aforesaid it ought to be make be pray judgement if  the aforesaid Lewis by virtue of the write Obligatory aforesaid ought to  maintain his action aforesaid thereof against he c plaintiff demurrer and the  aforesaid Lewis say that the plea of the aforesaid John be insufficient in law  to preclude he the say Lewis from have his action aforesaid against the  aforesaid John and that he have no necessity nor be by the law of the land  bind to answer that plea in manner and form aforesaid plead and this he be  ready to verify wherefore for want of a sufficient answer of the say John in  this behalf the same Lewis pray judgement and his damage by reason of the  detain the say debt to be adjudge to he c joinder and the aforesaid John for  that he have above allege sufficient matter in law to preclude the aforesaid  Lewis from have his action aforesaid against he which he be ready to verify  which say matter the aforesaid Lewis do not deny nor thereunto in any wise  answer but the say averment whole refuse to admit pray judgement and that the  aforesaid Lewis may be preclude from have his action aforesaid against he c  and because the justice here will advice of and upon the premise before they  give judgement thereon day be give to the party aforesaid here until the  morrow of the holy Trinity to hear their judgement thereon because the justice  thereof not yet c the judgement appear after the argument the case mich term  Edward one be in execution upon a recognizance make accord to the statute of h  be bind to the sheriff upon condition that the prisoner keep without damage  the sheriff against the king and the party who sue the execution and at all  time be at the command of the sheriff as a true prisoner c this be void by the  statute of h cap the case be rehearse brief in this manner Lewis dive late  sheriff of Bedford have bring a action of debt for pound against John  maningham upon a obligation b he make to the plaintiff which obligation be  endorse upon condition that if one Thomas maningham shall keep without damage  the say sheriff against our lord the king and one Thomas Palley and at all  time shall be at the command of the say sheriff as a true prisoner to appear  before the justice of the king at Westminster or elsewhere within the realm  that then the obligation shall be void and the defendant say among other thing  it be enact c and recite three branch of the statute of h cap videlicet the  clause concern let prisoner to bail and the clause concern the exception and  the clause concern the make of obligation without condition to be void and  those also which be make to the sheriff without name he sheriff and all the  rest of this branch say further that the say Thomas Palley purchase out of the  chancery a writ of to set free facias out of a recognizance make to he by the  say Thomas maningham which be direct to the sheriff of Bedford command he to  do the content of the say writ and to certify into the chancery at a day then  pass how the writ be serve and he show also that the king bad send to the  sheriff of London Middlesex and Hertford other writ in form aforesaid and the  same sheriff return the writ into the chancery to wit that he have extend the  land and that the say Thomas maningham be not to be find c whereupon a  liberate be award to the sheriff of Bedford who Plowden er p return the  deliver and that he have take the body of the say Thomas maningham and keep he  in prison and further the defendant say that by force thereof the say Thomas  maningham be in prison under the custody of the plaintiff then sheriff of the  say county and that he the same defendant make the obligation to the say  plaintiff for the delivery of the say Thomas maningham out of prison and this  he be ready to verify wherefore inasmuch as the say deed be not make upon such  condition as by the say statute it ought to be he demand judgement if the  plaintiff by virtue of the say deed ought to maintain his action and upon this  plea in bar the plaintiff have demurrer in judgement and it be argue at the  bar for the plaintiff that the bar be not good for the defendant have recite  the record commence at the writ of a note the writ which be call in the record  a to set free facias be a to stretch out facias and these word in the end of  the writ videlicet et she a saying beforehand thomae c to set free facias be  false for it shall bend she a saying beforehand thomae c to set free facias as  it appear by the register and so the et put for ut alter the sense and this be  not well understand here make the doubt and the argument a to set free facias  and this be ought not to do for before the delivery the extent be always award  and return and when the thing appear certain thereby then a liberate shall be  award for the statute of h cap of recognizance of debt refer the order of the  execution to the order of the execution of the statute staple which be refer  to the statute merchant which be refer in some point to the statute of Acton  burnel and by they it appear that a extent shall be Plowden first have and  afterward a writ of liberate shall be award and delivery shall not be make at  the beginning t h per Newdigate   Litt a and when a man plead or recite a  record in any temporal court in our law be ought to plead or recite it full  and in good order and certain which be not do here and also be ought to  commerce at the first acknowledgement of the debt and this he have not do and  for this cause the plea in bar be vicious further it be allege in the say  record that the say writ be direct to the sheriff of Bedford and it be command  he to certify into the chancery how the writ be serve at a day then pass c and  every writ appoint a day for the return which be to come and not which be pass  and so inasmuch as this word then be a word signify the time pass and the  return ought to be at a time to come this reason also prove the record bad  recite and so the plea in bar be insufficient further it be contain in the bar  that the same sheriff return the writ and there be four sheriff mention before  videlicet the sheriff of Bedford the sheriff of London the sheriff of  Middlesex and the sheriff of Hertford and then to say that the same sheriff  return the writ be quite incertain and the sheriff last name be the sheriff of  Hertford and always a stat Edward cap h h b per Cott bro return de brief ass  pl t Edward a per Genney bro above t h b per godred et Paston bro above to  know facias t h pl bro error dalt sheriff cap dalt pl et more roll r Bulst cro  c a when the writ be return the name and surname of the sheriff ought to be  put to the return and so he ought to have do here for there be a common  diversity hold at moots in court and chancery that the writ shall be direct to  the sheriff of such a county general without name his name but be ought to put  his name to the return and so here wherefore inasmuch as the name of the  sheriff be not express and also inasmuch as it be incertain to what sheriff  the return shall be refer the plea in bar be for this cause insufficient and  as to the matter the obligation be good and out of the provision of the  statute for diverse cause for first it be to be consider that the statute have  three principal branch touch this point the first be a commandment to the  sheriff to let to bail such person there express the second be to restrain the  other contain in the exception the three be to make obligation take in other  manner than the statute limit to be void but it be to be consider that the  last branch be refer only to the first for the word of the three branch be  that no sheriff nor any of his officer or minister aforesaid take or cause to  be take or make any obligation for any cause aforesaid c and these word  videlicet for any cause aforesaid Plowden er p be refer to the first branch  only videlicet to such person as be mainpernable and not to the second branch  for those in the exception which be in the second branch be not mainpernable  and then the intent of the statute be not to make obligation void for let any  at large but such only as be bailable and here Thomas maningham be in upon  execution and be one of those contain in the exception and the let he go at  large be a escape and so be out of the intent of the statute and be mere at  the commonlaw in which case the obligation stand at commonlaw and so be good  and also it be prove by other word in the last branch of the statute that the  statute do not extend to avoid the obligation here for the statute ordain that  obligation shall not be take but u on condition that the prisoner appear at  the day contain in the say writ bill or warrant c and here the prisoner have  no day to appear for which reason it appear to be out of the intent and word  of the statute and to be at commonlaw and so the obligation be good and as to  these word which be contain in the statute videlicet well multicolored duty  Himself they be refer to the say first branch of the statute that be to say  concern obligation take of those who be in by writ bill or warrant and have a  day to appear c but to refer it to those who be not bailable can never be the  intention of the statute for the sheriff will always safe keep such person for  their own indemnity that be to avoid escape and it be rare see that any who be  not bailable be let at large and statute be not make to remedy such rare  mischief but common mischief and for these cause the say word multicolored  duty Himself be only refer to those who be bailable and not other and  therefore our case where Thomas maningham be not bailable be out of the intent  of the statute and consequent the obligation for his deliverance be so too and  also for another cause the case here be out of the provision of the statute  and that be because Thomas maningham be imprison and the obligation be make by  John maningham now defendant and John maningham be not imprison and then the  statute do not extend to avoid any obligation make but only by those person  who be in their custody by course of law and here inasmuch as he that make the  obligation be at large and never imprison this be out of the word of the  statute and the statute be penal shall not be extend by equity for which  reason the obligation be at the commonlaw and not touch by the statute and so  good and therefore the plaintiff shall recover on the other hand it be argue  at the bar for the defendant that the plaintiff shall be bar and as to the  first exception which have be take for that the extent ought to be first award  and after that the liberate and now the writ of to set free facias be first  award as to that it be say that there be in the first writ a to stretch out  facias with a seizure and also with a to set free facias in which case as to  the extent the writ be good and the to set free facias be more than necessary  in the same writ for in rei in point of fact the liberate be a several writ in  itself but yet as to the extent and seizure into the king hand the writ be  good and as to the rest it be surplusage b p h pl bro action sur Le case brief  nugation b as in h in trespass upon the case by the lord of a town eastern  quod tolloneum to carry away mock to loosen object exception be take to the  writ because he can carry away the toll except it be pay before but yet the  writ be adjudge good for although the first word be void the other way z to  loosen object be sufficient so here the one part of the writ be good though  the other be not so and that which be good be sufficient and for the other  part it shall be surplusage but be the writ good or bad yet Plowden inasmuch  as it be a ancient record it shall stand in force until it be annul by error  and then the recital ought to be accord to it wherefore this exception be  sufficient answer and as to the other exception which have be take videlicet  that the writ be recite to certify the king at a day then pass as to this it  be to be know that this recital be make now when it be plead and then these  word at a day then pass stand well together with the recital for the day be  pass at the time of the recital although it be to come at the time when the  writ be award and so this exception be full answer and as to the other  exception which have be take videlicet that the same sheriff return the writ  and he have not show what sheriff in certain nor have recite his name or  surname as to this it shall be intend that the sheriff of Bedford now  plaintiff do it for the Plowden er p process be direct to he and it appear by  the return that be return the extent of the land in the county of Bedford and  no other sheriff than the sheriff of Bedford can do it wherefore there be  sufficient intendment hereof and perhaps the first record have not his name  certain but have these very word here and do other and then we can vary from  the record but we ought to recite it as it be a wing Max ring pl a and be it  good or bad it shall stand in force until it be reverse by error as be  aforesaid wherefore these exception be of no weight and as to the statute  there be three branch in it as bath be say and the last branch which say that  no sheriff nor any of his officer or minister aforesaid shall take or cause to  be take or make any obligation for any cause aforesaid c bath relation as well  to the exception as to the first clause for this word aforesaid have the  meaning of beforementioned and the exception be as well mention before as the  first clause be and this word aforesaid be general and have relation to  boththe clause extend to the case here and if it shall not yet the other  clause in the last branch videlicet multicolored duty Himself will extend to  it well enough for it can be deny but that Thomas maningham here be in the  custody of the plaintiff as sheriff and he let he to mainprize as sheriff and  he take the obligation as sheriff and by the name of sheriff and if so then it  be multicolored duty Himself and consequent within the word of the statute b m  h b Fitzherbert obligation bro   b post b and in proof thereof in h moil  justice be of opinion that if the sheriff let we one to mainprize who be  except the statute a not bailable and take a simple obligation it shall be  void quod some justice there to go away c Inst post c and sir these word  multicolored duty be always take in evil parten and differ from the word army  duty or ration duty which be always take in bonan parten and where the office  be the just cause of the thing and the thing be pursuant to the office but  multicolored duty imply that the thing be under pretence of office but not  duly and the office be no more than a cloak to deceit and the thing be ground  upon vice and the office be as a shadow thereto and that be the case here for  the obligation be not take lawful for it be take for the let he go at large  who be not bailable and be let he go at large as sheriff and so it be  multicolored duty and the colour of the office be most proper see here and  then inasmuch as this word aforesaid have relation to the exception and also  the obligation be here make by colour of his office there be nothing more to  be consider but whether the obligation be make in other form than the statute  limit and this it be for two cause the one be because he have no day to appear  by the condition for the statute appoint that this shall be contain in the  condition which it be not here for he have no day in court appoint the second  cause be for that there be other thing also contain in the condition for if it  be contain in the condition that be shall appear at the day c and also that be  shall do other d S p   b cro e Mod post d thing then be it in other form than  the statute limit for the statute limit the condition to contain only the day  and place of appearance and therefore inasmuch as this word aforesaid and also  these word multicolored duty have relation to the exception in the statute and  the obligation here be take for one contain in the exception and be in other  form than the statute limit it follow ex consequent that the obligation shall  be void and sir if the obligation be not touch by the statute yet it shall be  void by the course of the common e S p die t bendl bath v salt   b hob Bulst  go Freem wing Max ring pl e law for as it have be confess the prisoner here be  not bailable in which case the let he go at large by mainprize be a tort and a  thing contrary to law and then the obligation be make to aid the sheriff in  the do of a tort in which case by the course of the commonlaw the obligation  be void f m h b per Thirn Fitzherbert obligate bro condition Perk   Litt b I  roll Abr you pl cro c vide t h a bro condition f as if the obligation be to  save one harmless if be kill such a one or do such a trespass c the obligation  shall be void so shall it be here for the obligation be to save Plowden er p  the sheriff harmless for do a tort and a thing contrary to law in which case  the obligation be void by the course of the commonlaw g m h bendl roll Abr you  pl hob cro c lev vin Abr title condition z a pl g and therefore there be this  case in one of our book that where the plaintiff in replevin have a withernam  out of the common bench by force whereof one of the sheriff bailiff take four  ox of the defendant in name of withernam and afterward deliver they to the  defendant again and the defendant become bind to he to keep he without damage  concern the say four ox and afterward be be damnified bring a action of debt  upon the obligation and it be hold by the better opinion that the obligation  be void for the writ of withernam be h Fitzherbert withernam bro king a h  capias in withernam c et she detine until what time c so that the sheriff  ought to have keep the cattle and not to have deliver they to the party and  then the delivery of they to the party be a tort and the obligation be make to  aid he in that tort and therefore void so be it in our case for which reason  the plaintiff shall be bar afterward Molineux hale and brown justice argue to  the same purpose but I be not present till the latter end of brown argument  Montague chief justice it seem to I also that the plaintiff shall be bar first  as to the Plowden exception before move videlicet that the Act be a particular  Act and ought to be recite at large and not as it be recite videlicet inter  alian enactatum to be c sir as to this I agree that be ought to recite the Act  a die pl pl Leon more   b hob sand side Freem donc Pla heath Max a for the Act  be particular in a generality that be it be universal to all sheriff and  officer contain therein and inasmuch as it be not general to all the king  subject but only to all the say officer it be well call a Act particular in a  generality b and vin Abr title statute e pl b as if a Act of parliament be  make that all bishop or all justice shall do such a Act or have such a benefit  this Act be call a Act particular in a generality and ought to be plead for  inasmuch as it operate against some particular person that be to say officer  and not against all for this reason the justice be not bind to take notice of  it c p Edward pl Fitzherbert office de court bro parliament plead die pl donc  Pla   b Leon and vin Abr title statute c pl c and therefore in Edward in the  Lord say case it be hold that a Act of parliament by which all corporation and  licence grant by king Henry shall be void ought to be plead and the court be  not bind to take notice of it no more than of a particular Act touch a  particular person and so in our case the Act be particular in a generality or  it may be call general in a particularity in which case the Act ought to be  plead but if it be a general Act which concern all the king subject it needs  not be plead but the justice ought to take notice of it and so be the  diversity then inasmuch as the Act here ought to be plead it be to be see  whether it be well plead or not see the whole Act be not show but only part of  it which be recite in this manner videlicet cum inter alian enactatum to be c  and sir as to this I take a diversity when a man shall plead a record for  parcel inter alian and when not d p Edward pl bro plead hob heath Max post per  Harper I vide Carth Hool v Burgoign d and therefore in Edward in a to know  facias to have execution of acre of land the tenant plead that after the to  know facias sue one I b bring a formedon of acre inter alian and recover and  bad execution c judgement of the writ for that parcel and there the opinion be  that the plea be do good for this be not the right form of plead such a  recovery for every recovery have in our law ought to be plead certain to every  intent and these word inter alian be certain to no intent but there it be hold  that he ought to have plead that I b bring a formedon of acre whereof the acre  now in demand be parcel and recover and have execution and there the tenant by  licence of the court amend Plowden er p his plea by which it appear that to  plead a recovery inter alian c be not good and the reason thereof be because  every recovery be entire and there be one original and one judgement upon it  and so the recovery be one entire matter and therefore to say that inter alian  be recover c be not good but he ought to plead certain e side hob vide Bulst e  but sir to say that inter alian enactatum to be be well plead for the say Act  of parliament make year h be several and have several branch one in restraint  of let county to farm another for not return officer or servant c the three  for the fee c the four for let man to bail c the five for restrain some person  the six for make obligation void so that these branch though they be contain  in one chapter be several act of parliament and concern several matter and  then where one branch only serve a man purpose it be sufficient for he f die  pl vent post t Jones per cur lie down as a rule in the recital of statute f to  recite that only for the recital of that only be a recital of a entire and  several Act of parliament but otherwise it be of a recovery for all that be  contain in the record be but one recovery and therefore all ought to be recite  and so be the diversity and then here the Act be particular in a generality  and which of necessity ought to be recite be well recite and so this exception  be answer another exception be take videlicet that diverse sheriff be name and  at last it be say that the same sheriff return the writ c which be say to be  incertain sir as to this g wing Max ring pl g it be certain enough that it  shall be refer to the sheriff of Bedford for the return contain a extent of  the land in the county of Bedford and none can do this but the sheriff of  Bedford and the whole sum of the execution be refer to he and so it can be  otherwise intend but that the sheriff of Bedford make the return wherefore the  law say that this be certain enough another exception have be take because the  defendant have not begin at the commencement of the record but begin first at  the liberate sir admit this h and wing Max ring pl heath Max h yet it be well  enough plead and therefore I take a difference when a record ought to be  entire and certain recite and when not as to which I hold I S p   Litt a donc  Pla Mod I that if a record be plead in bar it ought to be entire and certain  recite because the record only be the matter of the substance and effect of  the bar which ought to be full and perfect but here the recital of the record  be only conveyance to the benefit of the statute and be not the effect of the  bar but a inducement and conveyance to it and then it be not necessary for  king   Litt a donc Pla Hardr Poph Bulst cro e cro c heath Max Mod post king  such conveyance and inducement to be as certain plead as the substance itself  ought to be l t h Fitzherbert avowry bro to point out de faits heath Max l and  therefore there be a case in h where tenant by elegit make avowry in replevin  because he have execution as tenant by elegit and lease acre parcel of the  land to the plaintiff for three year render S per annum c and for the rend in  arrear he avow and there it be argue whether he ought to plead the whole  record in certain by which he become tenant by elegit and it be there hold by  the better opinion that it be not necessary but that it be sufficient to plead  that heretofore he recover damage against the party and have a elegit and this  land be deliver to he without plead the whole record entire how he bring his  first action and what answer the defendant make or the like but it be  sufficient to commence at the execution for the lease make by the avowant  render rend be the effect of the avowry and of the execution by elegit and the  record from whence it issue be only a conveyance to the effect and therefore  it be not necessary to recite the entire record but that part only which prove  the execution be sufficient m m h pl Fitzherbert Disceit bro bill heath Max m  and in h a bill of disceit be sue against two atorneys of the common bench for  embezzle and withdraw a writ of habeas Plowden er p corpora in plea land upon  a formedon between the plaintiff and another there judgement be demand of the  bill because it do not contain the original the certainty of the land and  Plowden the whole record in certain but there the bill be award good  notwithstanding it do not recite the record certain because the record be only  conveyance to the suit of disceit but it be there hold that if the record have  be plead in bar the certainty of the land ought to be show and the whole  record for there the record may be deny inasmuch as it be the substance of the  bar but in the other case to say nul tiel record be no plea because it be but  conveyence as be say before so in our case the record be show to no other  intent than to make Thomas maningham a prisoner and that be not show but as a  conveyance to the benefit of the statute videlicet to make the obligation void  and then although the record be do full nor entire recite yet it be well  enough further it seem to I that the defendant have not well nor wise conclude  his plea for he have conclude unde ex quo scribe prediction non to be factum  sub tali condition wicker basket per to cause to stand become to withhold  petit judgment which special conclusion have so straiten the defendant that if  the obligation be void for any other cause than for that which the defendant  have mention in the conclusion he shall not by course of law have benefit of  it a m h b per Prisot a and therefore in h one devise a reversion of tenant  for life to another in fee by the name of all the earth et property who in  shades of dead of the devisor adtunc to be and the heir of the devisee bring a  action of waste recite in his count the special grant ut above and the  defendant say ex quo per narrative prediction that this only is apparent that  the devisor do not devise the reversion but by the say word ut above and the  tenant for life then hold the tenement and nothing of the reversion pass by  the general word to the devisee he demand judgement c and upon this the  plaintiff also demurrer and there it be hold that inasmuch as the defendant  have demurrer upon a special point and have rehearse the cause of his demurrer  if there be any other matter in the declaration whereof the defendant may have  have advantage he shall not now take any advantage of it so here in our case  if there be any other cause which will make the obligation void beside the  condition of the obligation as it seem to I there be which I shall show  hereafter yet the defendant by his special conclusion have lose the advantage  of it so that there appear little policy in the conclusion b vin Abr title  demurrer t pl b but when a man conclude or demurrer general be shall have  benefit of every thing mention in the record or of every point which the law  give he and so be the diversity where the conclusion or demurrer be general  and where special and here inasmuch as the conclusion be special although the  obligation be void for other cause than for the condition as in truth it be  yet the defendant shall not take advantage thereof but it be further to be see  whether the conclusion here videlicet judgement si action be proper or not and  it seem to I that it be not c quaere for the current of the book be against  this opinion p Edward pl Edward bro non be factum   b   b hob jenk Leon hetl  Mod donc Pla pale yellow l of e c but be ought to have conclude such non be  factum for the statute say if a obligation be take in other form than be  contain in the statute it shall be void and from what time shall it be void I  say from the beginning and if it be void from the beginning then it never be  his deed and if it never be his deed then be ought to have conclude non be  factum d h Edward pl per Brian bro non be factum p I h b per Keble winch donc  Pla Kitch pale yellow l of e d as if a man will plead in avoidance of a deed  that he be a man not letter and that the deed be read to he in other form or e  p h a per brook bro general issue p Edward b per choke Sav Mod e that he  deliver it with his own hand as a escrow to be deliver over after the  performance of a condition as his deed and that before the condition perform  the bailee deliver it over there be ought to conclude non be factum because  the matter prove that it never be his deed f same diversity dal pl per Plowden  ibidem pl more Sav Kitch f but if it be once his deed and afterward the  Plowden er p duty thereof become extinct then he ought to demand judgement si  action g p h b per Keble g as if a release of the duty be plead he ought to  demand judgement si action for there it be once his deed and therefore he can  say on be factum but judgement si action because the duty be now extinct so if  a h m h a per choke p I h b per Keble p h a per pollard dal pl   a Inst Perk  roll r comb Kitch donc Pla h infant or a man by I p h b per Keble p h a per  pollard   a Inst donc Pla I duress make a obligation they shall demand  judgement si action because the delivery of the deed be not void and so be the  diversity where a man shall say non be factum and where he shall demand  judgement si action but here inasmuch as upon the matter it never be his deed  he ought to have conclude non be factum and not judgement si action as he have  do for which reason the conclusion be bad further inasmuch as the conclusion  lip this point be bad it be to be see what shall be do if it appear to we  judge that upon the matter in law the deed be void and it seem to I that we by  our office ought to give judgement against the plaintiff for although the  defendant may not take the advantage yet inasmuch as it appear to we that the  plaintiff have no cause of action king S p hob and cro e pl die pl king we  ought to give judgement against he l h Edward Fitzherbert judgement die pl hob  roll r lev l and therefore in Edward where a action of trespass be bring  against Tilly and Wode for take five box with charter c Tilly plead not guilty  and Wode make title to he self by a gift and the plaintiff traverse the gift  and upon these matter they be at issue and Tilly be find guilty and the issue  be find for Wode against the plaintiff and although the issue be find against  Tilly yet by clear opinion in a manner the plaintiff shall not have judgement  against he for it be find between the plaintiff and Wode that the plaintiff  have no title and then inasmuch as it appear to the judge by the record that  the plaintiff have no title they ex duty ought to give judgement against the  plaintiff m p Edward pl Fitzherbert office de court bro more Sav cro e touch  of prece post m and in Edward there be a like case videlicet in a action of  trespass by lessee for year for cattle take the defendant say that the lessor  hold of he by the service c and for so much in arrear he take the cattle the  plaintiff reply rien arear c and upon this they be at issue and it be find for  the plaintiff and the opinion of all the justice there be that notwithstanding  the defendant bad accept the writ good yet the plaintiff shall not have  judgement but the court shall abate the writ for it appear to the court that  the defendant be lord against who a action of trespass lie not for the statute  say non therefore puniater c n Leon post n and in a appeal by a woman of the  death of her father although the defendant affirm the writ yet the court ex  duty ought to abate it for it appear to the court that by the statute oh mag  Charles cap oh no woman may have a appeal of death of any but of her husband  so that always if it Plowden appear to the court that the plaintiff have no  title be shall not have judgement although the defendant admit his title so  here although the defendant by his bad conclusion have conclude himself of his  advantage the plaintiff shall be bar by the court ex duty if so be it appear  that he have no title then it be to be see here whether the statute make the  obligation void or not and it seem to I that the obligation here be void by  the letter of the statute the statute among other thing have three notable  branch which have be rehearse the first be a command and authority to sheriff  to let to bail such person as be bailable and this be no new provision a  contra resole   a a for the commonlaw have be always so before for the  commonlaw which be common reason do ever allow that such person as be take by  writ bill or warrant in any action personal or indict Plowden er p mean for  trespass may be let at large upon surety for it stand indifferent in a manner  whether they be guilty or not and then if they be not guilty and shall be  restrain of their liberty it will be a great inconvenience which the commonlaw  will never suffer and therefore as to this first branch it be make in  affirmance of the commonlaw the second branch videlicet the exception be also  make in affirmance of the commonlaw for such person as be in by condemnation  execution capias utlagatum and such other cause contain in the exception be  not bailable before as any one may easy judge by the inconvenience that will  follow from it but the provision be only in the three branch videlicet in  avoidance of obligation take in other manner than be express in the statute  and this branch have relation to avoid obligation make for let to mainprize as  well those who be contain in the second branch as those in the first for these  word in the three branch videlicet for any cause aforesaid have relation to  all that be speak before b vide l job skin b for aforesaid contain that be  before mention and be in Latin praerecitata and this word praerecitata have  the same meaning as infra content to press out or to send forward which have  relation to all that be as well to thing except as otherwise c S p cite accord  cro e Leon but roll r this case deny to be law by coke CJ and there say to be  adjudge p Elizabeth Russel v Gulwel that if a man upon such a lease and  exception covenant not to cut down any tree on any of the premise that to send  forward and praedimissa be all one and therefore the covenant do not extend to  the thing except c and therefore if one make a lease for year of a manor  except a close c render annual a rend c and the lessee be bind to perform all  grant covenant and agreement he who disregards to press out or read aloud in  the indenture if he disturb the lessor in the occupation of the close except  he have forfeit the obligation for when be except the close the other be  content with it and that the lessor shall occupy it and then this be a  agreement and the say word videlicet he who disregards to press out et read  aloud do each of they go as well to the exception as to the rest d h Edward pl  Fitzherbert bar d and in Edward where a vicar have lease his church to three  by indenture and diverse contract be comprise in the deed and at the end of  the deed there be these word et ad in all respects et one in prediction scribe  he who disregards bene et with reliance on God to make to bind up our et who  nostrum in solid figure per present circumstance there it be hold that this  word he who disregards reach to every covenant and so do praerecitata  wherefore it seem to I clear enough that this word aforesaid and in Latin  praerecitata reach well enough to the second branch videlicet the exception  and sir the intent of the statute be accord so e dalt Sh appendix cap e for at  the commonlaw before this statute where a man be condemned in any sum and in  execution for it the sheriff or other officer will let he at large upon  condition to save they harmless as if he have be condemned in pound the  sheriff or other officer will take a obligation of pound and suffer he to go  at large and then the party plaintiff have no other remedy but only to sue the  sheriff or other officer upon the escape and he shall recover no more Chan his  first debt or very small damage and perhaps it will be one or two year before  the plaintiff can recover it against the sheriff or gaoler and in the mean  time the prisoner be at large and will increase the sum in which he be  condemned more than the sheriff or other officer shall render in damage and  sometime the sheriff or other officer will for such favour gain a piece of  land sometime he will compound with the prisoner by this mean to get his son  and heir marry to his own daughter and he never be without great reward for  such favour and so sheriff and other officer by such craft and device be  enrich and be sure to be keep without damage by such obligation for the sum in  which they shall be condemned for the escape and thus their bribery have safe  conduct for this cause the statute be make to avoid such obligation so that if  sheriff or other officer will let prisoner at large they must do it at their  peril for by this statute their safe conduct that be to say the obligation to  save they harmless be cut off and destroy and therefore see the mischief be so  great it can be take but that it be the intent of the maker of the statute to  cure it and this be one of their principal Plowden er p view in this statute  and be a thing that have the great need to be remedy and sir I do it see to  what intent this exception be put or mention in the statute if it be not to  make void obligation take for let they go at large who be not bailable for to  restrain they from bail be in vain for the commonlaw bad do that before and  then the exception be not put in the statute for such frivolous purpose but  upon great consideration and that be to make obligation take for let they to  bail who be not bailable utter void by the relation of this word to the say  clause f m h b Fitzherbert obligation bro   b ante f and sir in the say case  of debt in h bring by a sheriff upon a single obligation make by one who be in  his custody for suspicion of felony and which be there hold void it be put  obiter by moil that if the sheriff bad let one to mainprize who be except in  the say statute as not bailable and take a simple obligation it shall be void  quod some justice there to go away which prove that they be near to the  statute than we be take it that a obligation take for one not bailable and  make in other form than the statute limit shall be void and that I believe and  so as it seem to I the word of the statute and the intent of the statute make  the say word aforesaid to have relation to the second branch and consequent to  make the obligation if it be take in other form than the statute limit to be  utter void and further if the obligation be not void for this cause it seem to  I that if it be take in other form than the Plowden statute limit these word  videlicet multicolored duty will make it void for it be to be consider that  Thomas maningham be in execution and no man can be in execution but under some  officer and here he be in execution under the custody of the plaintiff not as  Lewis dive but as sheriff for the writ to take Thomas maningham be direct to  he as sheriff and so as officer he have the custody of he then when be take  the obligation be take it as officer but be take it undue for he be not bail  able but yetbe take it as sheriff ergo he take it multicolored duty Himself  for this word multicolored duty Himself be always take a Inst ante a in evil  parten and signify a act bad do under the countenance of a office and it bear  a dissemble visage of duty and be proper call extortion as if a officer will  take more for his fee than he ought this be do multicolored duty Himself but  yet it be not part of his office and it be call extortion b   b   Litt b b  which be no other than robbery but it be more odious than robbery for robbery  be apparent and always bath the countenance of vice but extortion be equal as  great a vice as robbery carry the mask of virtue and be more difficult to be  try or discern and consequent more odious than robbery wherefore here inasmuch  as the obligation be make for the deliverance of Thomas maningham who be in  the custody of the plaintiff as officer it can be deny but that be take the  obligation for his deliverance multicolored duty although it be do army duty  Himself and as to what be say it the bar that if the sheriff or other officer  take a obligation of a prisoner for his meat and drink that this be  multicolored duty and yet out of the statute sir I utter deny this c   b dalt  Sh Mod vin Abr title condition u pl c for the obligation be void d S p Mod d  for if one be in execution be ought to live of his own and neither the  plaintiff nor the e roll Abr b pi Mod per holt CJ and the opinion in   b to  the contrary be there deny to be law e sheriff be bind to give he meat or  drink no more than if one distrain cattle and put they in a pound for there  the f dr Stud cap c p Edward pi per choke bro distress Bulst b n c   Litt b  Inst finch finch roll Abr pi Kitch f owner of the cattle ought to give they  meat and not he that distrain they no more be the party or the sheriff who  have one in execution bind to give meat to the prisoner but he ought to live  of his own good although he be in for felony until he be attaint and this by  the course of the commonlaw g Bracton foe b Britton b t h foe ult pl  Fitzherbert coroner bro forfeiture m Edward pl per Finchden Fitzherbert  trespass bar bro coroner forfeiture officer Reseiser ass pl bro forfeit saint  pi cor b Pulton a b Inst dalt just cap Freem Kitch g for before attainder the  Plowden er p good be his and in his hand and the commonlaw in this point be  confirm by a h stat r cap h statute and if he have no good he shall live of  the charity of other and if other will give he nothing let he die in the name  of God if be will and impute the cause of it to his own fault for his  presumption and ill behaviour bring he to inasmuch then as the sheriff or  other officer be not bind to at a obligation take for meat be void for it be  multicolored duty and a obligation of his prisoner but in a small number of  case for his ability in this point be straiten by this statute and so of all  other officer except the warden of the fleet and of the king palace at  Westminster I see hetl I who be except by the statute king p Edward pl  Fitzherbert debt bro non be factum   b king and therefore in Edward one be in  custody of the sheriff by a capias upon a indictment of trespass and the  sheriff let he to mainprize and he make a obligation to another upon condition  to keep his day c and this he do for the surety of the sheriff and there it be  hold that the obligation be void because the last branch of the statute  prohibit any sheriff from take a obligation for any cause aforesaid or by  colour of their office but only to themselves and there inasmuch as it be take  to another it be void and also there the court hold that if the obligation  have not the condition express in the statute it be not the deed of the party  ex quo sequitur that he ought to conclude non be factum and hereto the opinion  there tend which confirm my opinion that the conclusion ought to be as I have  say before and so the capacity of sheriff or other officer be abridge and  straiten in this point and thus be my mind perceive in these matter for I  apprehend that this word aforesaid have relation to the second branch and to  make the obligation here void and if it shall not yet these word multicolored  duty will make it void if so be the obligation be take in other form than the  statute limit to which point I be now to argue and as it seem to I it be take  in other form than the statute limit for the statute contain that it shall be  in the name of their office and upon condition to appeal and here it be not so  for he have no day in court wherefore it be void and the last part of the  condition of the obligation be if he shall be at the command of the sheriff as  a true prisoner and then the sheriff may command he not to escape and he may  go to bed and sleep there safe but it never be the intent of the statute to  give he such ease and such condition be never intend by the statute and if any  will argue that the last part of the condition be accord to the statute yet  the first part be not so for the first part be if Thomas maningham keep  without damage the say sheriff against our lord the king and one Thomas Palley  c and it do not say for l S p Perk l what he shall keep be without damage so  that it be general and shall be take most strong against he and that be for  all thing as for felony for treason for the sheriff account in the exchequer  and for all other charge nor do it say how long he shall keep he without  damage and then it shall be take for ever and so it shall be construe for  every thing and for ever et such per in all respects world a race and sir I  apprehend that if the obligation have be condition accord to the statute and  have have another m see ante d and the book there cite m thing also in the  same condition that the obligation by reason of this condition will be utter  void as a formedon and action of waste be give by statute there if a man will  add other word in the writ the whole be void n finch finch wing Max ring pl n  and if the king licence one to alien the three part of his land and be alien  the whole the licence be total void and I be of opinion in the first statute  of devise which give authority to devise two part that if he have devise the  whole the whole shall be void and so if another thing be add to a thing give  by statute it shall make all void so here although the last part of the  condition be Plowden er p accord to the statute yet the first part be not and  that shall make the whole obligation void and sir the obligation vary from the  form of the statute in another point for in the first branch it be command  Plowden to the sheriff to let the person therein mention to mainprize upon  reasonable sure of sufficient person have sufficient within the county where  such person be so let to bail or mainprize so that the statute be of  sufficient person ut above and be in the plural number in which case there  ought to be two see the contra adjudge drury case cite   b a cro Elizabeth per  Popham ibidem pl ibidem pl ibidem pl cro James cro car Hardr Mod Mod surety at  least and here there be but one surety videlicet John maningham only and this  be not accord to the word nor intent of the statute for the more and the more  able the surety be the soon will they cause he to appear who be let to  mainprize and so justice will be more speedy do and therefore the plural  number of surety be well consider and put into the statute but here there be  but one surety videlicet the defendant only and the let they to bail who be  mention in the second clause ought to be upon like surety and in the same  manner as be contain in the first branch and therefore see there be but one  surety here it be in other manner than be contain in the statute and then if  the obligation be take in other form than be limit in the statute the statute  say it shall be void but the defendant have lose the advantage of the  obligation in its variance from the order of the statute in this point by his  special conclusion and reliance upon it that it be not make upon such  condition as be limit in the statute as I have show before yet because the  condition vary from the statute he shall have benefit by the office of the  judge notwithstanding his bad conclusion to the action as I have say before  and so for these cause the plaintiff shall be bar note reader that as to what  be move for the plaintiff that the obligation here shall be out of the danger  of the statute because it be not make by he who be imprison but by the  defendant who be at large this seem no matter for two cause the first be  because the first branch require that the surety shall be of sufficient person  have sufficient within the county where c and so the word and also the intent  of the statute by these word appear to extend to those surety at large take  for they in prison so that they have sufficient within the county the second  cause be for that the three branch ordain that no sheriff shall take any  obligation for any cause aforesaid or by colour of their office but only to  themselves of any person nor by any person that be in their custody c so that  these word videlicet of any person be general and extend to all person  videlicet at large or not c or all least they extend to all that be at large  and these word by any person that be in their custody extend to all prisoner  only and these word which be in their custody be only to be refer to the  person last name and not to these word of any person first name and then these  word will also make a obligation take of he at large to be void as well as if  it be take of the prisoner himself and perhaps for these cause it be hold so  clear that it be not answer by the other side nor by the Lord Montague at  which day here come as well the aforesaid Lewis as the aforesaid John  maningham by their atorneys aforesaid and thereupon the premise be see and by  the justice here more full understand it seem to the same justice here that e  plea of the aforesaid John above in bar plead be good and sufficient in law to  preclude the aforesaid Lewis from have his action aforesaid against the  aforesaid John maningham therefore it be consider that the aforesaid Lewis  take nothing by his writ aforesaid but be in mercy for his false claim therein  and that the aforesaid John go thereupon without day c inquire the name of the  pledge c and also it be consider that the aforesaid John recover against the  aforesaid Lewis shilling adjudge to the same John by the discretion of the  justice of the lord the king here accord to the form of the statute therein  make and provide for the cost and expense of the aforesaid John by reason of  the premise c Plowden er p