DEBT ON BOND. In an action of debt on bond, the plaintiff, on non est factum pleaded, must prove the execution of the bond; and where breaches have been assigned under the stat, 8 and 9 Will. III. c. 11, s. 8, he must prove the breaches as assigned. The breaches must be proved as in an action of assumpsit or covenant; but if the breaches have been suggested on the roll, after judgment for the plaintiff on demurrer, it will be necessary to give some evidence that the bond produced, and in which the conditions are contained, is the same as that on which judgment has been obtained; for this purpose it will be sufficient, if the attorney for the plaintiff swears that the bond produced is the instrument delivered to him to bring the action, and that he knows of no other of the same date, without calling the attesting witness. Hodgkinson v. Marsden, Peake Ev. 287, 5th ed., 2 Campb. 122, S. C. So where the de. fendant craved oyer, and set out the bond and condition which was for performance of covenants in an indenture of lease, and pleaded a sham plea, to which there was a replication, and then demurred; after judgment for the plaintiff, on the execution of the writ of inquiry, Lord Kenyon ruled that it was not necessary to prove the execution of the lease, as the defendant was estopped by his plea from saying that it was not duly executed. Collins v. Rybot, 2 Esp. 157. If the defendant lets judgment go by default, and the plaintiff thereupon makes his suggestion, in which he sets out the condition of the bond, and that appears to be for the performance of an award, or of articles of agreement or the like, the plaintiff must prove the condition of the bond, the award, indenture, or articles, as well as the breaches suggested. Edwards v. Stone, coram Lawrence, J., 1 Saund. 68, e (n). Defence. The defendant may plead non est factum, which will put the plaintiff upon proof of the execution of the deed, and under which the defendant may give most matters of defence in evi. dence, see ante, p. 64. Though the statute of limitations does not apply to specialties, yet the defendant may, if the deed be upwards of twenty years old, and there has been no payment or acknowledgment of his liability within that period, plead solvit ad diem, and rely upon the presumption of payment arising from lapse of time. But if there has been any pay ment of interest or acknowledgment, after the day appointed for the payment of the money, though upwards of twenty years have elapsed since the payment or acknowledgment, the defendant cannot avail himself of this presumption of payment under the plea of solvit ad diem, though he may under the plea of solvit post diem. Moreland v. Benet, 1 Str. 652, B.N.P. 174. The issue of solvit ad diem lies upon the defendant, and under that plea he may show payment before the day. B.N.P. 173. Proof of payment of the principal only, without interest, will not, as it seems, support the plea of solvit post diem; Hellier v. Franklin, 1 Stark. 291; but see Dixon v. Parks, 1 Esp. 110, contra; as to the presumption of payment, see ante, p. 15. DEBT ON BAIL BOND. In an action of debt on a bail bond, the plaintiff, whether he be the sheriff, or his assignee, will only have to prove under the plea of non est factum, the execution of the bond in the usual manner. Hutchinson v. Kearns, 1 Selw. N. P. 557. The defendant may show under non est factum, that the bond was taken after the return of the writ, Thompson v. Rock, 4 M. and S. 338. See Harmer v. Rowe, 6 M. and S. 146; or that the bond was executed before the condition was filled up. Powell v. Duff, 3 Camph. 181. If the defendant pleads ease and favour, which is traversed, little evidence will be sufficient. Lenthall v. Cook, 1 Sid. 384, 1 Saund. 163 (n). Where issue is joined on the plea of comperuit ad diem, the trial is by the record, see Austen v. Fenton, 1 Taunt. 23, Tidd, 239, and the plea is proved by the production of the recognizance roll, containing an entry of the appearance. Whittle v. Oldaker, 7 B. and C. 478. Where the defendant pleads nil debet, and the plaintiff, instead of demurring, takes Issue upon that plea, the defendant is let into any defence applicable to the plea of nil debet; Rawlins v. Danvers, 5 Esp. 38 and in such case it is said that the plaintiff must be prepared to prove, not only the execution of the bond, but also all the averments in the declaration which are put in issue by the plea of nil debet. 2 Stark. Ev. 140, 5 Esp. 39. Where the defendant pleaded that there was not any assignment of the bond by the sheriff or under-sheriff, and it appeared in evidence that the bond had been assigned to the plaintiff by one of the under-sheriff's clerks, Lord Mansfield was of opinion that the seal to the assignment, being the seal of office, was sufficient to prove its validity, whoever had signed it. Harris V. Ashley, 1 Selw. N. P. 554. DEBT FOR RENT. In an action of debt for rent, the plaintiff under the plea of nil debet must prove the demise, and the amount of rent in ar rear. The demise may be proved by production and proof of the lease executed by the defendant, but if the plaintiff sues as assignee of the reversion, and the defendant has not paid rent to him, he must also prove his title as such assignee by production and proof of the mesne assignments, or by showing that he is heir, &c. See Sands v. Ledger, 2 Ld. Raym. 792. The assignee of the reversion may maintain debt against the lessee without giving him any notice of the assignment, for the action is sufficient notice; but if the rent has been paid to the original lessor before notice, it is a good defence. Watts v. Ognell, Cro. Jac. 192, Birch v. Wright, 1 T. R. 385. A variance between the demise stated, and that proved, will be fatal, but where it was alleged that the plaintiff had demised to the defendant three rooms, and it appeared in evi dence that the demise was of three rooms, and the use of the furniture, it was held to be rightly stated according to the legal effect, for the rent could not issue out of the chattels, Walsh v. Pemberton, Selw. N. P. 583, Farewell v. Dickenson, 6 B. and C. 251, Ward v. Smith, 11 Price, 19. A variance in the statement of the rent will be fatal, as where in the decla ration it was stated to be 15l. per annum, and appeared in evidence to be 15l. and three fowls. Sands v. Ledger, 2 Ld. Raym. 793. So where it was stated that the plaintiff demised .་ “ yielding and paying thereupon the yearly rent of 160l. by two even, &c." and the lease in fact was yielding and paying during the said term (except as hereinafter mentioned)," and there was a subsequent clause for the reduction of the rent in a certain case, which had not however occurred, this was held a fatal variance. Vavusour v. Ormrod, 6 B. and C. 430. Defence. Evidence under the plea of nil debet.] Whether the demise be by deed or not, nil debet is a good plea, for the specialty is only inducement to the action, B. Ñ. P. 170, and it puts issue the whole declaration. Scilly v. Dalley, 2 Salk. 562. The 'defendant therefore may show under it payment to the plaintiff, or to another by his appointment. Taylor v. Beal, Cro. Eliz. 222, Gilb. Ev. 283, or that the plaintiff has agreed that a debt due by him to the defendant shall go in satisfaction of the rent. Gilb. on debt, 443, on evid. 283. It seems that the 'defendant cannot under this plea give in evidence that the plaintiff was bound by covenant to repair the premises, and that he (the defendant) expended the rent in necessary reparations; Taylor v. Beal, Cro. Eliz. 222, B. N. P. 177, but see Gilb, Ev. 282; but if the lease be by parol, and the lessor directs the lessee to repair, and the lessee repairs accordingly, the money so laid out may be given in evidence under this plea as evidence of payment; Gilb. on debt, 442; and where the covenant for payment of rent contains a proviso, that the tenant may deduct a portion of the rent for repairs, it seems that such deduction may be given in evidence under this plea. Clayton v. Kinaston, 1 Ld. Raym. 420, Bayley v. Offord, Cro. Car. 137; see also Johnson v. Carre, 1 Lev. 152, City of Exeter v. Clare, 3 Keb. 321. The defendant may also give in evidence under this plea, that the plaintiff expelled him from the premises and kept him out, until after the rent be came due, which operates as a suspension of the rent, B. N. P. 177, Gilb. Evid. 279, 1 Saund. 204 (n); and an apportionment of the rent may be given in evidence under nil debet. Hodgkins v. Robson, 1 Vent. 276, Gilb. on rents, 189. An eviction by a third person under a title paramount, should, it is said, be pleaded specially. Wing field v. Seckford, 2 Leon, 10, 2 Phill. Ev. 143, but see Gilb. on debt, 429, contra, and quære. A release may, it seems, be given in evidence under this plea. Per Holt, C. J., Gallaway v. Susach, 1 Salk. 284, 394, Anon. 5 Mod. 18. Paramour v. Johnson, 12 Mod. 377, but see Gilb. Ev. 281, 283, Gilb. on debt, 443. Where the demise is by deed, the statute of limitations does not apply. Freeman v. Stacy, Hutt. 109. Where it was not by deed, was formerly held that the statute might be given in evidence under the plea of nil debet. Anon. 1 Salk. 278, Draper v. Glassop, 1 Ld. Raym. 153, Com. Dig. Pleader (2 W. 16), but it is now decided that it must be pleaded. Chappel v. Durston, 1 C. and J. 1. Evidence on plea of assignment.] In debt for rent against the lessee, who has pleaded an assignment and acceptance of the assignee before the rent incurred, the assignment must be proved and also the acceptance of the assignee as his tenant by the lessor; Marsh v. Brace, Cro. Jac. 334; if the action is against the assignee, he may plead the assignment without any statement of an acceptance; Tongue v. Pitcher, 3 Lev. 295, Com. Dig. Debt (F.); and an assignment by the assignee before the rent incurred, may, it seems, be given in evidence under nil debet. Skin. 318, Vin. Ab. Ev. (Z. a.) pl. 49. DEBT FOR DOUBLE VALUE. In an action of debt for double value, the plaintiff must prove the demise, the determination of the term, the holding over, the demand and notice in writing given to the defendant, and the amount of the double value claimed. By statute 4 Geo. II. c. 28, s. 1, in case any tenant or tenants for life, lives, or years, or other persons who shall come into possession of any lands, tenements, or hereditaments, by, from, or under, or by collusion with such tenant or tenants, shall wilfully hold over any lands, &c. after the determination of their term, and after demand made, and notice in writing given for delivering the possession thereof by his or their landlord or lessor, or the person or persons to whom the remainder or reversion of such lands, &c. shall belong, his or their agents, thereunto lawfully authorised, such persons so holding over shall for and during the time he or they shall so hold over, or keep the person or persons entitled out of the possession of the said lands, &c. pay to the person or persons so kept out of possession, their executors, administrators, or assigns, at the rate of double the yearly value of the said lands, &c. for so long time as the same are detained. Proof of determination of term, and of the demand.] In general the determination of the term will be proved by evidence of the service of a notice to quit upon the defendant, see post in Ejectment, and if a notice to quit be proved, it will not be necessary to show a demand, for the notice includes a demand. Wilkinson v. Colley, 5 Burr. 2694. The notice must be in writing. Where the defendant has held over, after the deter mination of a term certain, a demand of the possession must be proved, but it need not appear that the demand was made, on or before the expiration of the tenancy; Cobb v. Stokes, 8 East, 361; though the plaintiff will only be entitled to the double value from the time of the demand made, Ibid.; and where the rent is reserved quarterly, and the demand is made in the middle of a quarter, the plaintiff cannot recover the single rent for the antecedent fraction of the quarter. Ibid. Where the notice was served upon the tenant, a feme sole, who married before the expiration of the year, it was held that the landlord might maintain debt against the husband, without making a demand of the possession from him, and that in such action it was not necessary to join the wife for conformity. Lake v. Smith, 1 N. R. 174. A person appointed by the court of Chancery, to receive the rents and profits of the estate, is a sufficient agent within the statute to make the demand. Wilkinson v. Colley, 5 Burr. 2694. Defence. The defendant may show that the plaintiff has waived the notice to quit and demand of possession; and where the plaintiff has accepted rent from the defendant, after the expiration of the notice to quit, it is a question for the jury, whether such rent was received in part satisfaction of the double value, or as a waiver of it; Ryal v. Rich, 10 East, 52; and where the landlord declared in debt, 1st for the double value, and 2d for use and occupation, and the tenant pleaded nil debet to the first count, and a tender of the single rent before action brought to the second, and paid the Court, which the plaintiff took out of court and proceeded, it into money was held that this was no waiver of the plaintiff's right to the double value, so as to be ground of nonsuit, but that it was a |