Willoughby against Swinton
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1805 |
| Date | 27 June 1805 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 1398
IN THE COURT OF KING'S BENCH.
[550] willoughby against swinton. Thursday, June 27th, 1805. A bond, conditioned for the payment of a certain sum by instalments, is within the stat. 8 & 9 W. 3, e. 11, s. 8: and after judgment obtained upon default of payment of one of the instalments, if a subsequent instalment be in arrear, the plaintiff cannot sue out execution for it, though within a year after such judgment, without first suing out a scire facias to revive it. A rule called upon the plaintiff to shew cause why the writ of fieri facias issued in (a) 5 Term Eep. 661. 6 EAST, 551. WILLOUGHBY V. SWINTON 1399 this cause, and all subsequent proceedings should not be set aside on payment of costs, and 531. 6s. paid to the sheriff under the writ be restored to the defendant, &c. The defendant gave a bond, dated the 30th May 1801, to the plaintiff, in the penal sum of 10801. conditioned for the payment of 4941. 4s. 5d. by yearly instalments of 501. each: and the condition concluded in the common form, that if default should be made in the payment of any of the instalments, the bond should be in full force. At the same time the plaintiff gave the following written memorandum to the defendant, signed by him and attested by the witnesses to the bond: " Memorandum, whereas A. D. Swinton (the defendant) hath this day given and executed to me a bond in the penal sum of 10801. conditioned for the payment of 4941. 4s. 5d. by instalments at the rate of 501. a-year; now I do hereby declare that nothing in the said bond contained shall authorize me to proceed upon any default of payment for any sum which shall not have become actually due at the time, nor tend in any manner to accelerate any of the other payments mentioned in the said bond, or the condition thereof; as witness," &c. After payment of part of the instalments, the defendant was arrested in Michaelmas term last in an action of debt for the whole penalty, but was only holden to bail for 751. then due on the bond; to which he pleaded that the bond was obtained by covin; and on issue joined the plaintiff obtained a verdict without defence, and had judgment as of [551] last Hilary term, and in Easter term the costs were taxed at 611. which, together with 801. 5s. 6d. the amount of the instalments, and interest due thereon, were paid to the plaintiff's attorney. On the 1st of June last a further instalment of 501. became due, for which the...
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