this case. And therefore if the obligee release
before the second delivery, the release is void, and
will not bar the party obligee of the fruit of his
obligation (58). [It should seem that this inchoate
or imperfect obligation might be released by appro-
priate language. If it be not released as an obli-
gation, the reason is, because, in fact, there is not
any obligation till the second delivery. But, at
this day, it would probably be decided, that the
release, even by these inartificial terms, was effec-
tual.]

If a man, that is party or privy in estate or
interest, or one that doth justify in the right of one
that is such a party or privy, shall plead a deed in
any court; although he claim but parcel of the
original estate, yet in this case, he must show the
original deed to the court; and the reason of this
is, to the end that the legal part of the deed (the
trial whereof belongeth to the judges) may approve
itself; i. e. that it may be seen whether the com-
position of words be sufficient in law or not; and
then that it may appear whether the estate be with
condition, limitation, or with power of revocation,
&c. to the end that if there be any such thing in it,
and there be no other part of it, the other party
may take advantage of it; and then that it may
appear to be without rasure, or interlining, and the
like; and also that it may appear to be well sealed
and delivered, (the trial whereof doth now belong
to the country.) [To this general rule there is an
exception. When the deed is lost, or is in the
hands of the adverse party; under these and the
like circumstances, the party may aver the loss of
the deed, or the possession by the adverse party,
as a reason for not making the profert. So, in
case of rights depending on presumable releases,
&c. the practice now is to plead such a release,
&c. and to aver that it is lost, and to go before
the jury to try the facts on which the presumption
is grounded. But strangers in estate, that are
neither parties nor privies, shall not be compelled
to show the deed, though they make use of it (59).

(58) In what cases subsequent acts shall bind by reason of their relation to precedent ones. See Vin, Abr. Deeds (O.) Relation (E.) Com. Dig. Bargain and Sale (B. 9.) Confirmation (D. 5.)

(59) See fully in what cases it is necessary to show the deed or not. Com. Dig. Pleader (0.) (P.) Wils. Rep. 1 vol. part 1. p. 121. 2 vol. p. 1. Vin. Abr. Faits (M. a.) But in cases of great and notorious extremity, which have occasioned the destruction of the deed, as by

Dyer, 315. 12 H. 6. 1.

Co. 2. 4, 5.

And when a deed is thus showed in court, it must
remain in that court, all the term wherein it is
showed, in the custody of the custos brevium; [on
a profert, the practice now is to give a copy,] and at
the end of the term, if the deed be not denied,
the law doth adjudge the possession of the deed in
him to whom it doth belong. But if the deed
be denied, then it is to be kept there until it be
determined. Also when a deed is showed in
court, the adverse party may take any advantage
by it that it will afford him; as if a feoffment be
made by deed poll on condition, and the feoffee
doth break the condition, and the feoffor doth
enter, and the feoffee doth sue him, and makes his
title by that deed, the feoffee may take advantage
of the condition [by pleading it.]

10. Where one was delivered at another time, or

may suy his deed

in another place.

Any man that hath occasion to use or plead a
deed, may set forth the delivery thereof to be at
any time [before or] after the date of the deed [by
averring the time of delivery;] and in some cases
he must do so, if he will have any advantage by
it, [since in the absence of such averment the op-
posite party might demur.] As if he plead a re-
lease to an obligation, and it [the release] beareth
date before the obligation; in this case he must
aver, that it [the release] was delivered after [the
obligation, or show the error in the date of the
obligation,] or it [the release] will not avail him.
But a man may not, in pleading, set forth the de-
livery of a deed to be before the date of the deed.
[Why not? The text proceeds on a mistake of
law. 2 Rep. 5.] And yet if it be so that a deed be
dated after the time of the delivery of it, the deed
is good; and therefore if he that doth use such a
deed, do plead and set it forth as a deed made
before the time of the delivery, [read as bearing
date before the day on which the deed is delivered.
Goddard's case, 2 Rep. 5.] and the party that
made it plead Non est factum to the deed, a jury
upon the trial may find the truth of the case; but Estoppel.
if he by his pleading set forth the deed to be de-
livered before the time of the date, then the jury

casualty of fire; in that case, he who suffers so great a loss, may be permitted upon the general issue to prove the deed in evidence to the jury by witnesses, in order that affliction may not be added to affliction. 10 Co. 92. b. The evidence on a casual destruction of a deed, is the same in a court of equity, as in a court of law. 1 Ves. 235. In what cases relief may be had in equity on the destruction or loss of a deed, see 1 Ves. 392.

12 H. 6. 1. [5 Rep. 8.]

Co, super Lit. 6.

is concluded as, well as the party himself, [to find *P. 74.
contrary to that fact;] for a jury is estopped to
find any thing contrary to that which is apparently
admitted in the record. In debt brought by an
executor, the defendant pleaded the release of the
testator, which did bear date after the death of the
testator; but he did aver the delivery of it in the
life-time of the testator, and the court did not allow
of this plea. [The law is so stated in 2 Co. 5,
Goddard's case, and the court agreed to it; but as
it is admitted that such a release is good, there
seems no reason for over-ruling the plea, since the
plea puts the material fact of the case in issue.
At this day such plea would, it is apprehended, be
allowed; for the date of a deed is not an estoppel
against stating and proving the time of delivery.
The averment of the time of delivery is perfectly
consistent with the statement, that by indenture
bearing date, &c. But Goddard's case proves that
such special declaration is not necessary, since the
jury may find the fact, and of course it admits of
proof. The proper way is to plead the deed, as
bearing date, &c.: with an averment, if the occa-
sion requires it, of the time of delivery. But if,
in describing dates, there be a material error, the
deed, when produced, will not support the issue;
and therefore a deed, bearing date the 1st of Ja-
nuary, cannot be given in evidence to support an
issue or a declaration, which describes the deed as
bearing date the 2d of January. And yet in God-
dard's case, 2 Co. 5, it is said, that the mistaking
of the date of a deed will not hurt, upon a plea of
non est factum pleaded; but there is nothing in
that case which warrants this general conclusion,
and it is in opposition to the rules of evidence: for
as far as the court or jury can judge, the bond
produced in evidence may be, and apparently, is a
different instrument from the deed pleaded. But
this objection does not exist when a deed is
pleaded as bearing date (for that is the fact) on one
day, and as first delivered on another day; for in
such case the issue is on the time of delivery, and
not on the apparent date.]-

Sometimes antiquity added the place where the
deeds were made, as datum apud B. and this was
in disadvantage of him to whom the deed was
made; for if the deed be in general, and without this

N

Non est factum;
Quid.
And where this
may be pleaded

to a deed, or

not.

addition, he may allege the deed to be made where,
[viz. in any county, &c.] he will [so as to fix the

venue.] An obligation made beyond the seas Co. super Lit.
may be sued here in England in what place the 261.
obligee will, and if it bear date at Bourdeaux in
France, it may be alleged to be made in quodam
loco vocat. Bourdeaux in France, [viz.] in Isling-
ton, in the county of Middlesex, and there it shall
be tried; for whether there be such a place in Is-
lington or not, the fact is not traversable [Fines
of lands in the colonies are frequently levied in
the courts of Westminster-hall, on this suggestion,
and such fines are allowed to be effectual in the
local jurisdictions of the island. Lord Eldon, when
C. J. of C. B. at first thought such a fine ought
not to be permitted to pass; but, on consideration,
he gave it his allocatur; still objecting to the fine
on principle, as coram non judice; but the true
ground on which such fines ought to be allowed, is,
not because they are records in this country, but
because they are a species of assurance recognized
by the local jurisdiction in the colonies.]

Non est factum is an answer to a declaration,
whereby a man denieth that to be his deed where-
upon he is impleaded. [The plea of non est factum
puts sometimes the identity, and sometimes the
validity of the deed in issue; and the identity or
validity of the deed, is the only point to be tried.
Thus in covenant, if the defendant plead non est
factum alone, there is no occasion to prove the
breach of covenant, except for the purpose of as-
certaining the damages.]

If any deed or writing be used against a man in any court, and it want writing, [on paper, vellum or parchment,] sealing, or delivery; or it be not sealed, written, and delivered as before is set forth, the party that is sued upon it, or against whom it is pleaded, may plead this plea to it. So also if a deed, by any alteration of rasure, &c. become void; in this case the party may plead this plea to avoid it. So also where a deed doth become void, or lose its virtue by the not reading, or not true reading of it to an illiterate man, or by refusal or disagreement, as in the cases before, the party may plead this plea to avoid it; [but sometimes the plea must state all the special circumstances, and conclude sic non est factum.] But

in all cases where the deed is voidable, and so re-
maineth at the time of the pleading; as if an infant,
or man of full age by duress, seal and deliver a
deed; or if an obligation be well sealed and deli-
vered by two, and the deed be joint, and the ob-
ligee sue one of them [solely, in the life of the
other, or after his death, and without averring his
death;] in these, and such like cases, the party
bound by the deed may not plead Non est factum;
for in the first, and such like cases, he must avoid
it by special pleading, with conclusion of judgment
si actio, &c.; and in the last he must plead in
abatement of the writ, &c. And if an obligation,
or any other deed, be by any special Act of Par-
liament made void, the party that is bound by it
cannot plead this plea of non est factum to it; but
he must avoid it by special pleading of the matter,
and taking advantage of the statute, and so with
conclusion of judgment si actio, &c. (60).

And now we come to the exposition of deeds.

Co. saper

Lit. 6. 7. Co. 11.51.

1

2.55

Plow. 196.

CHAP. V.

Exposition of Deeds.

IT is further to be observed, that deeds for the
most part consist of these things, [i. e. parts,] viz.
the premises, habendum, tenendum, reddendum, or
reservation, condition, warranty, and covenant.
And in the premises there is sometimes a recital,
and sometimes an exception contained; but all
these are not essential parts of a deed: for a deed
may be good, albeit it have not all these parts, or
it be not so formal and orderly drawn and made.

The premises of a deed are all the foreparts of 1. Premises.
the deed before the habendum. And yet this Quid.
word is sometimes taken for the thing demised, or
granted, by the deed. [In this sense, the word
premises hath reference to the things demised, and

(60) Accordingly 5 Co. 119, 11 Co. 27, a. See further by whom the plea of non est factum may be had, in what cases, and at what time, Vin. Abr. Faits, (N. a.) N. a. 2.) Com. Dig. Pleader, (2 W. 18.)