brown case Katherine yale widow plaintiff the king defendant in error that  December Mews dig v declaration upon a bind condition for the payment of all  money which I S shall receive on account of the revenue the defendant plead  general performance the attorneygeneral reply that I S or some other person or  person by his order receive etcetera hold that the averment of the receipt be  only the introduction to the breach the real assignment of the breach be the  nonpayment of the money but however this will have be on a demurrer it be cure  by the defendant rejoin that he have pay the money which be a admission of his  have receive it the above be only one and by no mean the principal point in  the case the statute Henry c say that all obligation and specialty make to the  king or his heir shall be make Payable by these word solvend eiden lord king  heir well executor nest but a bind take to the king his heir and successor be  hold to be good these word in the statute be only directory see vin ab c where  the condition of a bind be entire and the whole unlawful it be in most case  void but where it consist of different part some of which be lawful and other  not it be good for so much as be lawful and void for the rest see vin ab c  judgement of the exchequer and exchequerchamber affirm bunb viner vol p c vol  p I can Edward Pancefort esquire receivergeneral and act cashier to the  commissioner of excise in April employ sir Matthew Kirwood knight a goldsmith  in London to receive considerable sum of money relate to his majesty revenue  of excise and thereupon sir Matthew Kirwood together with Elihu Yale as his  surety enter into a bind to his majesty in the penalty of pound with a  condition thereunder write as follow videlicet whereas Edward Pancefort  esquire receiver general and act cashier to the commissioner of excise have  agree to employ the above bind sir Matthew Kirwood for receive from he the say  Edward Pancefort his clerk or agent all such sum and sum of money bill and  bill of exchange note bind and other paper as the say Edward Pancefort shall  from time to time think fit to pay or deliver to he the say sir Matthew  Kirwood or his order for or on account of his majesty revenue of excise on  beer and ale and other liquor and also the duty of malt hop soap paper silk  and calico etcetera or any of they or relate to any other revenue or payment  belong to his majesty or to the say Edward Pancefort on his own private  account if therefore he the say sir Matthew Kirwood do and shall from time to  time and at all time hereafter when he shall be thereupon require due and true  account make with the say Edward Pancefort his agent executor or assign of or  concern all such sum and sum of money bill and bill of exchange note bind and  other paper as he the say sir Matthew Kirwood or any other person or person by  his order privity or consent shall receive or that shall come to his or their  or any of their hand by virtue of the say trust repose in he and shall from  time to time and at all time hereafter when he shall be thereunto require but  more particular in every Tuesday in every week except the same be holiday if  require well and true satisfy pay and deliver or cause to be pay satisfy and  deliver in bank silver or gold unto the say Edward Pancefort his agent  executor or assign all such brown sum and sum of money as he the say sir  Matthew Kirwood or any other person or person by his order privity or consent  at any time shall have receive or collect or shall have in his or their hand  or custody by virtue of any bill or bill of exchange note bind or other paper  in anywise relate to the say revenue for the time be or any account belong to  his majesty or unto the say Edward Pancefort on his own particular account and  if the say sir Matthew Kirwood shall from time to time when he shall be  thereunto require by the say Edward Pancefort his executor administrator or  assign deliver unto the say Edward pance brown er p fort his agent executor  administrator and assign all and singular bill and bill of exchange note bind  book and book paper and all other thing whatsoever relate to the say revenue  or any of they or to the say Edward Pancefort accord to the true intent and  meaning of the say condition then the same to be void etcetera sir Matthew  continue in this employment from the that of April when the bind be execute  till the saint of September follow when he fail and abscond be at that time  indebt unto Mr Pancefort in a balance of pound and upward whereupon Mr  Pancefort sue out a extent in aid against Kirwood and by virtue thereof all  his real and personal estate be seize into the king hand in Trinity term a to  know facias ad to give satisfaction issue out of the court of exchequer  against Mr Yale upon this bind to which he appear and have crave oyer of the  bind and condition and to know facias he plead a special performance of this  condition by sir Matthew Kirwood in every part thereof to this plea the  attorneygeneral reply that after the make the say bind and during the  continuance of the say sir Matthew Kirwood in the say employment videlicet die  Augusti year king and by virtue of the trust in the say condition mention he  the say sir Matthew Kirwood or some other person or person by his order  privity or consent have and receive or have in their hand and custody of the  say Edward Pancefort he be for all that time receivergeneral and act cashier  to the commissioner of excise or of the clerk or agent of the say Edward  Pancefort money and several bill of exchange note and other paper touch the  say revenue in the condition mention belong to his majesty and that by virtue  thereof the say sir Matthew Kirwood then receive and have several sum of money  amount in the whole to pound S d which money the say sir Matthew Kirwood do  not well and true satisfy pay and deliver or cause to be pay satisfy and  deliver to the say Edward Pancefort his agent or assignee accord to the tenor  of the say condition but that the same be then unpay although the say sir  Matthew Kirwood be thereunto require by the say Edward Pancefort and that sir  Matthew Kirwood brown altogether refuse so to do contrary to the condition of  the say bind hereupon the defendant Yale rejoin that sir Matthew Kirwood pay  the say pound S d to one conrade de goll by order and for the use of the say  Edward Pancefort accord to the say condition to this the attorneygeneral  surrejoined and take issue but Mr Yale in order to bring the validity of the  bind into question demurrer general and this demurrer have be several time  argue the court in Michaelmas term give judgement in favour of the bind  whereupon Yale bring a writ of error in the exchequerchamber and the cause be  twice argue there the judgement be in Trinity term affirm soon afterward Mr  Yale die and thereupon his widow and administratrix bring a writ of error in  parliament to reverse both these judgement and on her behalf it be contend c  Phipps t Bootle that the say Mr Pancefort not be such a officer as by law be  enable to take a bind in the name of the king his take the bind in question in  his majesty name for secure what sir Matthew Kirwood shall receive as well on  Panceforts private account as on account of the public be void that the  proceed upon this bind to affect body land and good all at the same time and  to have all the privilege and benefit give and allow to the crown by the stat  Henry c be not warrant by that statute or any other law consequent be void  that as the king be no way concern in the event of the suit the debt due to  the crown be secure in all event there be the less reason to extend the power  and privilege of the prerogative in this particular case that if this bind and  the proceed thereupon be allow and establish the consequence will be the  establish a method whereby the ancient and settle rule these rule be contain  in the follow order Scaccarium boundary consecrated Hilar year king caroli  Mercury die of purifying whereas upon complaint make of abuse former touch  assign of debt to his majesty and in cause of debt to be find by inquisition  upon bind take in his majesty name for the payment of money to some of the  king farmer receiver or other accountant the Lord treasurer Lord cottington  and Lord chief baron and the rest of the baron of this court and sir John bank  knight his majesty attorneygeneral have confer together and take mature  consideration for reform the say abuse in the future have think fit and do  order that no debt be assign to the king or find by inquisition for the king  debtor or accountant in aid save such as be original due unto they good fide  without any matter of trust accord to the direction and instruction hereafter  follow videlicet he who assign any debt to the king shall take the oath  videlicet the withinnamed a b make oath the day of the date within write that  the debt hereby assign be just and due debt and have not former be put in suit  in any other court and that the same be his own proper debt original due unto  he good fide without any trust and that he have not receive the same nor any  part thereof except etcetera he who desire any debt or debt to be find by  inquisition in his aid shall take this oath the say b make oath the day and  year above write that he be just indebt unto a one of the farmer of his  majesty custom etcetera and that the same debt be a just and due debt original  due to the say a good fide without any manner of trust and that the say debt  have not be put in suit in any other court and that he have not receive the  same nor any part thereof except so much etcetera and that c be just indebt  unto he the say b original and good fide without trust and that c be much  decay in his estate so that unless a speedy course be take against the say c  the say debt by he owe be in great danger to be lose that no far inquisition  shall be take for debt in aid than to inquire and seize the land debt and  personal estate of he that be debtor to the king debtor or accountant unless  it be by special order make in open court No debt without specialty shall be  assign to the king in case of debt in aid No debt without specialty shall be  find by inquisition for debt in aid unless it be by order upon motion in open  court and except it be for debt due to the king farmer that no immediate  process of extent be award for debt in aid but in case of extremity and upon  oath to be take as aforesaid that every to know facias for such debt shall be  award into the proper county where such debtor be mention in the specialty to  reside unless upon a to know facias return in London or Middlesex that where  bind be take in the king name Payable to the king farmer receiver etcetera  they shall before any extent go forth make oath or testify it under their hand  to the court that such bind be and at the time of take such bind be for just  and true debt original owe to themselves good fide and that they be not in  trust or for the benefit of any other that receiver collector and bailiff have  no more deputy than be necessary for the king service and that such deputy be  neither tradesman nor scrivener dom thesaur dom cottington capital baron baron  Treavor baron Weston baron Hendon Johan bank Mil of the court of exchequer  brown in issue prerogative process will brown er p be elude and that as all  such bind if allow to be good will bind and affect the land from the date  thereof and the process thereon will be attend with all the power and  privilege of the prerogative purchaser of land can never be secure against  such sort of encumbrance there be no certain mean of come at the knowledge or  discovery of these pocket security and hence all common creditor will be  postpone in the recovery of their debt landlord will likewise be deprive of  that security and precedence which the law have provide for the obtain their  rend and even the right and privilege of the lord of parliament may thereby be  evade on the other side it be say r Raymond p York that the point principal  insist upon in the several argument of this case on the behalf of the  defendant do not regard the justice of the demand but be only matter of form  as I that this be not such a bind to the king as that a to know facias can lie  thereon it not be take pursuant to the statute Henry c which require that the  penalty in the obligation shall be make Payable to the king his heir or  executor whereas in this case the penalty be make Payable to the king his heir  or successor and the word executor be omit the act be not pursue and without  the aid of that act this particular method of proceed by to know facias can  brown er p not be maintain upon a bind execute to the king two that this bind  be not within that statute because it be not take by a proper authority Mr  Pancefort to who by the condition the payment be to be from time to time make  not appear to be a officer of the crown but of the commissioner of the excise  and consequent have no power to take a bind in the king name III that the  condition of the bind require sir Matthew Kirwood not only to account for and  pay all sum of money brown and bill that shall be deposit in his hand on  account of his majesty revenue but also such as belong to Mr Pancefort himself  whereas a bind can not be take in the king name for Mr Panceforts own money  within the abovementioned statute and IV that the breach of the condition  assign in the replication be too general and uncertain be uncertain both as to  the person of who the money be receive and by who the receipt be and involve  together several fact of different nature to the first of these objection it  be answer and so resolve by the judge in both court that those word in the  statute Henry be only directory and it be not necessary to insert in the bind  all the word mention in the act that the principal intention of the  legislature be that bind take to the king which be to have so great a  privilege beyond other bind shall be for some matter concern the king interest  and shall be make to he in his regal name and not in the name of common person  to his use which be the mischief design to be prevent by the statute and that  this have be former so adjudge in answer to the second objection it be insist  and so hold by the court that it neither do or be necessary to appear by what  authority the bind be take the only requisite which the statute have make  necessary be that the bind shall be make to the king by his regal name and for  a cause or cause touch or concern the king majesty that these requisite  sufficient appear in the present case the money secure by this bind be mention  in the condition to arise from the revenue of excise it be likewise insist  that Mr Pancefort appear upon this bind to be a officer of the crown  sufficient for this purpose be describe in the condition to be receivergeneral  and act cashier to the commissioner of excise that the commissioner of excise  be know officer of the crown and that a subordinate officer under they be  appoint by a authority derive from the crown may proper enough be say to be a  officer of the king beside if this objection prevail it will avoid most of the  bind take on account of the revenue to the three objection it be say that  though where the condition of a bind be entire and the whole unlawful it be in  most case void yet it be a know and allow distinction that where the condition  consist of several different part and some of they be lawful or such for which  the bind may be take and the other not it be good for so much as be lawful and  void for the rest that therefore this bind be good for so much as concern the  king revenue and the only breach assign in the cause be for the nonpayment of  money receive by sir Matthew Kirwood on account of that revenue and in answer  to the last objection it be urge that the replication be sufficient certain  because it be allege in the conclusion of it that by mean of the several  particular before mention sir Matthew Kirwood receive several sum of money  brown amount to pound S d and in case of bind of this kind it have often be  hold that it be not necessary to show of what person in particular the several  sum be receive but however that be the averment of the receipt be only the  introduction to the breach the real assignment of the breach be the nonpayment  that whatever force there may have be in this objection have the case stand  upon a general demurrer to the replication yet it be now supply by the  defendant rejoinder who by pass over the receipt and take issue upon the other  fact videlicet that he have pay the say sum of pound S d have admit the  receipt of the money and of this opinion be the whole court it be therefore  pray that both the judgement and affirmance may be affirm with cost accord  after hear counsel on this writ of error it be order and adjudge that the say  judgement give in the court of exchequer and the judgement give in the  exchequerchamber affirm the same shall be affirm and that the record shall be  remit to the end execution may he have thereupon as if no such writ of error  have be bring into the house jour vol p brown er p