| 1468.048 |
1468 |
Common Pleas |
Debt on an obligation |
Det |
| Mich. |
8 |
Edw. 4 |
15 |
14a-15a |
Pygot, Richard Sjt Pigot (for P?)
Prysot, John CJCP1449-1461 Sir John Prisot (mentioned in cross-reference)
Bryan, Thomas Sjt Brian (for D?)
Pygot, Richard Sjt Pigot
Nedeham, John JCP Nedham
Moyle, Walter JCP Moile
Choke, Richard JCP |
|
|
|
|
|
B., donor
C., donee & husband |
St. Paul's Cathedral (Pauls) |
|
| Fitzherbert Barre 92 |
Later proceeding? 1462.006 = Pasch. 2 Edw. 4, pl. 6, fol. 2a-4a (not pl. 16)
4 Hen. 7, fol. 4
1455.034 = Pasch. 33 Hen. 6, pl. 7, fol. 16b-17a (not fol. 18)
36 Hen. 6, fol. 12
Residuum placita 16
devant 2 Edw. 4, fol. 2
1455.034 = Pasch. 33 Hen. 6, pl. 7, fol. 16b-17a
2 Edw. 4, fol. 2 (twice) |
|
| En Det sur obligation le defendant dit, que il fuit endorce sur tiel conditon, que si un B. dona certein |
54 |
Defendant pleaded that the obligation was endorsed on a condition that if another gave certain land to a husband and wife in fee tail at a certain day, that then the obligation would be void, and defendant showed that at the day the donor was ready on the land all the day to give it, and that the donee husband and wife did not come.
Plaintiff (?) replied that this was no plea.
Further argument about the plea.
Nedeham JCP and Moyle JCP and Choke JCP said that defendant's plea was good. |
Sjt Bryan (for D?): car quant il fuit que tiel home prist tiel a feme, il fuit oblige en maner que le feme luy prendroit al baron, car cel entermariage est d' estre fait per ambideux, &c.
Sjt Pygot (for P?): Per vous si jeo sue oblige que un tiel fra feoffement a un tiel, ou que un tiel doit vener al Pauls, si jeo veigne a l' un que doit faire le feoffement, ou que duist vener, &c. & luy prie de faire le feoffement, coment que il ne voit cest faire, uncore jay save mon obligacion, car jay fait tout que en moy est, &c., mes ceo n' est ley, car jeo sue oblige que il fra le feoffement, pur que il covient que il soit fait en fait, &c.
Moyle JCP: Il serra entendu que cest feoffement serra al use del plaintiff, ou que il aver benefit per cest, s. que le feoffee espousera le file del plaintiff ou que cesty que est plaintiff est oblige a l' auter que il avera cel terre, donques quant cesty que prende estate est assigne pur le plaintiff il est sa foly de assigner tiel home pur prendre estate que ne voet vener la, &c. pur que
Choke JCP: le condicion serra entendu solonque cest que per possibility & reason poet estre fait, &c. & nemy auterment, donques per reason cesty que fra le feoffement ne poet cest faire, sinon que l' auter voet prendre estate, car est impossible de faire feoffement a luy, sinon que il voiet receiver estate, &c. per que quant cesty pur que le defendant est oblige ad fait sa duty, & tout cest que en luy est, &c., il semble le condition perform en ley, mes s' il ust esre oblige que cesty B. fra le feoffement, & auxi que l' auter prendre & resceiver estate, donques si cesty que duist prendre estate ne voilet vener, &c. obligation serra forfait, coment que l' auter fuit prist de faire, &c. car il fuit oblige per ambideux expresses, s. que ambideux ferra lour party, & quant l' un ne fait sa part, l' obligacion est forfait, &c. mes icy il ne fuit oblige expresse que l' auter prendre estate, &c. pur que, &c. & sir il est diversity |
Sjt Pygot (for P?): even though he who ought to have made the feoffment (B.) was ready to do this, yet this does not excuse defendant unless he (defendant) shows that he (B.) made the feoffment in fact, because there is a distinction (diversity) where the feoffment will be made to the plaintiff himself, and where (feoffment will be made) to a stranger, because if the feoffment ought to have been made to the plaintiff, then it will be a good plea to plead (adire) that he (the feoffor) was ready to make the feoffment, becuase if the plaintiff did not want to come to take an estate, this will be called 'his own fault' (son defaut demesne), for which fault (default) he (plaintiff) will not have advantage; but I say, in this case there is no fault (defaut) in the plaintiff, so etc., and even if the stranger was not there to take the estate, this will not give an advantage to the defendant; but it will be said to be his folly that he wanted to bind (lier) himself t make a feoffment to such a person who did not want to receive an estate, etc., and Sir, this case was adjudged before Sir John Prysot CJCP1449-1461, one defendant was obliged that such another would marry such another wife, and the man wanted to marry the woman, and she did not want to (marry him), and because he did not marry the woman, the obligation was forfeited, and yet there was no default in the man, but the cause was because he (defendant) had obliged himself to do this, so here
Sjt Bryan (for D?): when one is obliged on a condition, if he does all that is in him to perform the condition, this suffices for him, and there is no distinction where he will do it to the plaintiff and where (he will do it) to a stranger, because when he who ought to have made the feoffment was ready on the land, he did all that was in him to perform the condition, and he could not have made the feoffment, unless the other (the donee) had come to take the estate, etc.; and Sir, in your case the judgment was good, because when it (the condition) was that such a one marry such another, he was obliged in a manner that woman would marry him (luy prendroit al baron), because this intermarriage is to be made by both, etc., but here he (B.) was obliged to make the feoffment, and not that another (C. and wife) take the feoffment, so, etc.
query, because there seems to be no distinction (diversity)
Sjt Pygot (for P?): According to you (Per vous), if I am obliged that such a one will make a feoffment to such another, or that such a one ought to come to St. Paul's (al Pauls), if I come to the one who ought to make the feoffment or who ought to come, etc., and (I) ask him to make the feoffment, even if he does not want to do this, yet I have saved my obligation, because I have done all that is in me, etc. (according to Sjt Bryan), but this is not law, because I am obliged that he will make the feoffment, so he ought to do it in fact, etc.
Nedeham JCP: when he (B.) has done his part and his duty, and he who is obliged by this (defendant) has done what was in him to perform the condition, this suffices for him, because you agree if the feoffment ought to be made to the plaintiff himself, that thus he would take advantage by this, that the plea would be good, and Sir, in this case it will be understood that this feoffment will be to the use (al use) of the plaintiff, or to the use of he who ought to take an estate, and if it be to the use of the plaintiff himself, it will be his duty to make the other come to take an estate, becuase this is for the plaintiff's advantage, and if he does not (do it), this is the plaintiff's fault (default), so he (plaintiff) will not have advantage from this, etc.; and if feoffment will be to the use of he who will take an estate, then when he will not come, this is his default, so etc. and it will be understood that this obligation was made in surety of the making of the feoffment, thus when he (B.) was there to make a feoffment he did his duty, etc.
Moyle JCP: it will be understood that this feoffment will be to the use (al use) of the plaintiff, or that he (plaintiff) will have benefit of this, that is, that the feoffee will espouse the plaintiff's daughter (marriage settlement) or that he who was plainiff was obliged to the other that he would have this land, etc. thus when he who takes estate is assigned by the plaintiff it is his (plaintiff's) folly to assign such a one to take an estate who does not want to come there, etc., so
Choke JCP: the condition will be understood according to what can be done by possibility (probability?) and reason, etc., and not otherwise, thus by reason he who will make the feoffment cannot do this unless the other (the donee) wants to take an estate, because it is impossible to make a feoffment to him unless he wants to receive an estate, etc., so when him for whom the defendant is obliged has done his duty, and all that is in him, etc., it semes that the condition is performed in law, but if he (defendant) had been obliged that this B. will make the feoffment, and also that the other (C. and wife) will take and receive an estate, then if he who ought to take an estate does not want to come, etc. the obligation will be forfeit, even if the other was ready to do this, etc., because he was obliged by both expressly, that is, that both will do their part (party), and when the one does not do his part, the obligation is forfeit, etc., but here he (defendant) was not obliged expressly that the other (C. and wife) would take an estate, etc., so etc., and Sir, there is a distinction where I am obliged that one will do a thing that cannot be done without agreemenf of another person, and where it could be done by him himself, so I am obliged, etc., because if I am obliged that such a one will make a recognisance here (cieins) to one 'ob.' that he will come to such a place, etc., he for whom I am obliged ought to make the cognisance in fact, etc., because those things can be done without agreement of another person, etc.; but if the condition be that such a one will make feoffment or will pay certain money to another, if he tenders the money or feoffment, etc, and the other refuses, the obligation is saved, etc., because by no reasoning can this feoffment or payment be made without the agreement of the otehr, etc. so here, etc. |
|
|
1468.048 = Mich. 8 Edw. 4, pl. 15, fol. 14a-15a |
|
Obligation
Endorsement
Condition
Gift
Certainty
Wife
Fee Tail
Day
Voidance
Void Obligation
Showing
All Day
Readiness (prist)
Plea
No Plea
Making Feoffment
Feoffment
Excuse
In Fact
Fact
Distinction (diversity)
Stranger
Good Plea
Estate
Taking Estate
Fault
Default
His Own Fault
Advantage
Having Advantage
Case
Giving Advantage
Folly
Binding (lier)
Person
Receipt
Receiving Estate
Adjudging
Judgment
Knight
Marriage (prist a feme)
Forfeiture
Cause
Contrary
All That Is In HIm
Performance
Performance Of Condition
Sufficiency
Sufficing
Good Judgment
Manner
In A Manner
Husband
Intermarriage
Both
Query
Seeming
Asking (prie)
Saving
Saving Obligation
Part
Duty
Agreement
Taking Advantage
Use (use)
Understanding
Surety
Ad Idem
Benefit
Espousal
Daughter
Assignment
Possibility
By Possibility
Reason
By Reason
Otherwise
Reasonableness
Impossibility
Receipt
Receiving Estate
Doing His Duty
In Law
Expression
Expressly
Without Agreement
Recognisance
Making Recognisance
Cognisance
Thing (choses)
Payment
Money (money)
Tender
Refusal
Saving Obligation
No Reason
Residuum |
|
