case vinncent against atwood to a to know facias against bail if the defendant  plead the death of the principal before the return of the capias a replication  that the principal do not die before the return of the capias be good upon  demurrer a to know facias be bring against bail the defendant plead that the  principal die before the return of the capias ad to give satisfaction the  plaintiff reply that the principal do not die before the return of the capias  ad to give satisfaction the defendant demurrer agar for the defendant argue  that the replication be nought first because the plaintiff have not set forth  that there be any capias at all sue out but only that the principal do not die  before the return of the capias modern report second because by this  replication there be a issue form wherein the jury must at once try matter of  law matter of record and matter of fact Branthwaite for the plaintiff when the  defendant plead that the principal die before the return of the capias he  certain admit that there be a capias sue out and the only thing doubt be the  death of the principal c it be only necessary for the plaintiff to answer the  defendant plea and not to set forth that which be admit by the defendant in a  to know facias it be not necessary to set forth the award of a capias a cro  James Lutw a the condition of a bind be that h shall marry the daughter of d  before easter and in debt bring upon this bind it be hold b Yelv b that if the  defendant plead that the daughter die before easter it be enough for the  plaintiff to say in his replication that she do not die before easter without  set forth that he do not marry her the reason be because the not marry be a  fact admit and the other the only point in question have the plaintiff reply  that there be a capias sue out and the defendant have rejoin nul tiel record  the rejoinder will have be a departure from his bar how then can it in reason  be necessary for the plaintiff in his replication to set forth that which the  defendant can deny in his rejoinder without a departure in the case of Perkins  v Woolaston c Mod c in a action of debt against bail the defendant plead no  capias the plaintiff reply there be a capias the defendant rejoin that the  force of the capias be suspend by a writ of error and it be resolve that this  rejoinder be a departure from the bar judgement nisi be give for the plaintiff  d see chandler v Robert and another bail of white dougl Henderson v withy term  Rep d modern report er p