3ig MARYLAND COURT OF APPEALS

Richard Bennett to recover against the said Frisby for want of Sufficient mat-
ter in barr pleaded by them they having pleaded a bond for performance of
Conditions in barr which they pretend not in their plea ever to have been ever
broken, nor is it Alledged therein that ever the ballance pretended to have
been due from the Estate of the said James Frisby Esq^r deced was distributed
or Disposed by the Judge in the Condition of the said Bond to her late Maj-
esty Queen Ann mentioned to the said James and Peregrine or to either of
them without which it Could be no breach of the Condition that the said
Thomas paid not that Summe and so the said Bond not pleadable in barr
And for that the said plea Contains not an averment that the Assetts Con-
fessed are chargeable with the said Debt Pleaded in barr and for that the
same is wholly insufficient both in Substance and form.

It........In that it appears not by the said Record that the Def^ts prayed

the plantiff in the Original Action shoud reply and yet Judgm^t is given on the
Plantiffs not prosecuting which appears to be only for want of replication.

It...... In that the said Def^ts alledges the said Action cou'd not be con-
tinued till another Court by Act of Limitation etc: whereas it appears not
but the said Action might well have Continued so long.

It...... In that the said Bennett is called and his Default Entered for

want of Replication without any day given after the plea to reply thereto or
further to prosecute.

It........In that it Appears by the said Record that the delays that hap-
pened were on the Def^ts part by the Several Imparlances to further days so
that if the said Act of Limitation had taken place it appears to have been by
the Def^ts own Act and therefore Judgm^t ought to have been given ag^st him as
well for that and for his bad Plea
[477] It........That that there is no Entry of the Cause that moved the

Court to give the said Judgm^t by the Common Course of Entrys nor is the
Judgm^t warrantable as Enterd being for Costs against the Plf¹ without Al-
ledgeing it to be of his Assent or According to the forme of the Statute.

For all which Errors and many Others in the Record and Process af^d be-
ing the said Richard prays that the Judgm^t afs^d may be reversed Annulled
and altogether held for none and that to all things which thereby he hath lost
may be Restored etc. Th Bordley.

And the afs^d Richard Bennett having insinuate to the Court here that
the said James one of the Adm^rs afs^d is Dead therefore Prays his L^aships Writ
to forewarne the said Peregrine Frisby the surviving Adm^r of s^d Thomas
Frisby to be before his said Lordships Gov^rn: and Councill at Annapolis to
hear the Record and prosess afs^d and it is granted to him Therefore Com-
mand is given to the Sherriff of Cecill County that he shou'd make known to
the afs^d Peregrine Frisby the Surviving Adm^r of the said Thomas Frisby that
he should be before us in Our High Court of Appeales to be held at the City
of Annapolis the fourth Thursday of September then next to hear the Errors