| 1489.007 |
1489 |
Common Pleas |
Debt on an obligation |
Debte
Diversite
Curia
Diversite
Diversite
Curia |
Jay, Richard Sjt
Rede, Robert Sjt
Fyneux, John Sjt Fineux
Bryan, Thomas CJCP Brian
Kebell, Thomas Sjt Keble
Bryan, Thomas CJCP Monmaistre Brian (mentioned)
the Court
Vavasour, John Sjt Vavisor
Fysher, John Sjt Fisher
Haugh, Johh Sjt Haws
the Justices
Townshend, Roger JCP
all the Court
Kebell, Thomas Sjt Keble (mentioned)
Bryan, Thomas CJCP Brian
Haugh, John Sjt Haws (mentioned)
the Justices |
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Abel
A., hypothetical groom
B., hypothetical bride |
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Fitzherbert Barre 133
Brooke Condicions 127, Feffements de terres 38 |
case of one Abel
Pasch. 2 Edw. 4, fol. 2
Mich. 8 Edw. 4, fol. 14
Pasch. 33 Hen. 6, fol. 16, accord
33 Hen. 6, fol. 17 (twice)
2 Edw. 4, fol. 2?, accord
12 Hen. 4, fol. 23
Perkins, Profitable Boke 146 (twice)
Perkins, Profitable Boke 160
39 Hen. 6, fol. 11
40 Edw. 3, fol. 6
2 Edw. 4, fol. 3 (twice)
14 Edw. 4, fol. 3
21 Edw. 3, fol.12
33 Hen. 6, fol. 17 (twice)
9 Edw. 4, fol. 25 (twice)
22 Edw. 4, fol. 25 (twice)
Perkins, Profitable Boke 149
40 Edw. 3, fol. 12
39 Hen. 6, fol. 11
10 Hen. 7, fol. 18
16 Hen. 7, fol. 10
Perkins, Profitable Boke, 146, 149
22 Hen. 6, fol. 51
28 Hen. 6, fol. 8
40 Edw. 3, Lib. Ass. pl. 13
19 Hen. 6, fol. 76
20 Hen. 6, fol. 34
39 Hen. 6, fol. 10, 11, 12
Perkins, Profitable Boke 140, 139, 142, 146
21 Hen. 7, fol. 24
14 Hen. 7, fol. 32
15 Hen. 7, fol. 2
14 Hen. 8, fol. 32
2 Hen. 4, fol. 15 |
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| Un Action de Dette sur un obligacion fuit porte. Et le condition fuit tiel, que si l' obligor apres la mort |
72 |
Plaintiff brought Debt on an obligation with a condition that was that if defendant obligor within three months after the death of defendant's father, made a sufficient and sure estate in certain tenements to a woman, then (the obligation would lose its force) and the obligation was made to a stranger (plaintiff) and not to the woman.
Defendant obligor showed that the same woman married defendant obligor during the lifetime of defendant obligor's father, that the marriage (espousels) continued between the woman and defendant obligor afer the death of defendant obligor's father for three months, so that defendant obligor could not make feoffment.
Sjt Jay, Sjt Fyneux, Sjt Vavasour, Sjt Fysher, and Sjt Haugh spoke for plaintiff's position that defendant husband could have performed the condition to enfeoff his wife, so defendant husband forfeited the obligation.
Sjt Rede and Sjt Kebell spoke for defendant's position that defendant husband was excused from performing the condition.
Townshend JCP and Bryan CJCP said that defendant's plea was no plea.
So the Justices held clearly that defendant's plea was no plea. |
Sjt Kebell: Et n' est a or plus mes al' temps de fesance del' obligacion l' condition fuit possible, & or est fait impossible, et donq le party est excuse: Come si la feme mourrust, ou enter in Religion, &c.
Sjt Vavasour: Et Sir, in le cas d' un Abel fuit adjuge autrement, & fist oustre sa reason, &c.
Sjt Haugh: obligor per son acte demesne ad fait le condition estre impossible, & pur ceo est reason que il forfetera sa obligation; Car si on soit oblige a un que A. mariera B. si obligor in ceo cas prend B. a feme, a or A. ne poit marier, mes ceo est per l' acte l' obligor: purque il forfetera sa obligation
Townshend JCP: Et Sir, quand une condition extende a un estrange persone estre performe, l' obligor covient cest faire a son peril, ou auterment il ad perdu s' 'bond', car quand il est oblige a faire condition a un estranger, il enprend sur luy que estranger sera rule per luy, & auxi que il ad science de ses conditions, et issint tout ceo est implie en tiel condition d' un estrange persone, &c. mes l' act de Dieu poit causer que la condition ne sera performe, come si ele morust, &c.
Bryan CJCP mit diversite quand le condition est fait impossible per l' acte les parties, &c.; si le condicion soit encontre l' Ley, adonq tout est void: auterment est, si est impossible |
assumption that a husband could not enfeoff his wife
Sjt Jay and Sjt Fyneux and Sjt Vavasour and Sjt Fysher and Sjt Haugh spoke for plaintiff's position (defendant husband could have performed the condition to enfeoff his wife, so forfeited the obligation); Sjt Rede and Sjt Kebell spoke for defendant's position (defendant husband was excused from performing the condition)
Sjt Jay: it seems that he (defendant husband) has forfeited his obligation, because he has not performed the condition so far as he could (entant come il poit); as if one be enfeoffed to enfeoff twho, if one (of the two feoffees) dies, yet he will enfeoff the other (survivor), and so here defendant ought, notwithstanding the marriage (espousels), to cause the feoffment to be made
and Sjt Rede (to the contrary) said that now the woman is in such a case that she cannot receive the feoffment, so the party (defendant) is excused, etc.
Sjt Fyneux (to the contrary): and I understand that the obligation is forfeit, because he (defendant husband) is bound (lye) to make his feoffment toa woman who is a stranger to the obligation, so he (defendant) ought to do this at his peril; because if I am obliged to marry someone's daughter, and she does not want to marry with me, I will forfeit my obligation, and this has been adjudged
Bryan CJCP said to Sjt Fyneux: if the daughter be of tender age (tendre d' age), that she does not want to have him, but (this) will cause him to forfeit his obligation, etc.
Sjt Kebell (to the contrary): and Sir, the condition of an obligation is made for the obligor's advantage, notwithstanding that one be obliged to do a thing, albeit to a stranger or to him who is a party (obligee), I understand that all is the same reasoning, because if he does all that is in him, he is excused, because when he is obliged to make a feoffment, as well as he (obligor) will make the obligation, one (feoffee) ought to receive, and receipt ought to be on the part of the stranger who accepts the feoffment, which he (obligor) cannot do unless he who would have the feoffment wants to receive this, so by his reasoning if there be no fault in him (obligor) on his part, but he (obligor) is always ready to do this, he (obligor) is excused of this obligation, (and) whether it be against one who is a stranger to the obligation, or a party (part), it is all the same (tout est un); and to say that he will be bound to do all that is done and contained in the obligation on the condition, this is not so, because if he (obligor) be obliged to make a feoffment to his obligee by a certain day, he tenders the feoffment, and the other (obligee) refuses, he (obligor) is excused, and the reason is because he (obligor) cannot do more for his part, and yet if it would be as has been said, he (obligor will cause him (obligee) to take (feoffment) by these words of the obligtation, or otherwise he will forfeit it, and the law is contrary, and so the construction (of the words) by reason will issue to this point, that he will do to all his power, and if he does this, he (obligor) is excused; but if I am obliged to one that my master Bryan CJCP take a feoffment from me in such lands, etc. now if he (Bryan CJCP) does not want to take it, my obligation is forfeit, because there I am obliged by express words that he (Bryan CJCP) will do such thing (take the feoffment), and so a distinction; and (Sjt Kebell) said that if one be obliged to pay a certain sum at a certain day to a stranger, if the stranger does not want to take it, he (obligor) is excused because this (offer to pay) pertains to him (obligor) to do, and the receipt (pertains) to the stranger, and so the condtion is severed by reason, part to one (the obligor), and part to another (the stranger); Sir, so here in the case at bar the husband (defendant) is not at fault (in defaut), because he (defendant obligor) is able, and has power to make a feoffment, but the feoffee on her part is disabled to receive this, so the husband is excusable; and it is not now more, but at the time of making of the obligation the condition was possible, and now is made impossible, so the party is excuse (impossibility excuses nonperformance); as if the woman died, or entered into religion (professed), etc.; and to what is said, that she will cause an estate to be made (to her), this is not so, because it is not delimited (n' est limite) by the words that he ought to be feoffor, and so the conditions done in another manner are not perofrmed
and this was admitted by the Court, etc.
and Sjt Vavasour (to the contrary) said (that) if one be obliged to do a thing that is in his advantage, he ought to do it at his peril; and (Sjt Vavasour) said also that the condition can be performed, because he (defendant husband) can cause a stranger to sue a writ of Covenant against him (defendant husband) and his wife, etc. and to levy a fine, etc.; and Sir, in this Court (Place) it has been adudged, that when a condition has been (to be) performed to a stranger, he ought to do this at his peril, or he will forfeit his obligation notwithstanding that he does all that is in him; and Sir, in the case of one Abel it was adjudged otherwise, and (Sjt Vavasour) developed further (fist oustre) his reasoning (reason) (?) etc.
Sjt Fysher said that he (defendant husband) can perform the conditions in the case here, because he can within the three months make a lease for a term of one month, the remainder to the woman (his wife), and this will be good; and so by this means (voye, way) he can perform the condition, etc.
and Sjt Haugh (to the contrary) said that this was no plea because an obligor by his own act had made the condition to be impossible, and so it is reasonable (reason) that he will forfeit the obligation; because if one be obliged to another that A. will marry B., if the obligor in his case marries B., now A. cannot marry her, but this is by the act of the obligor, so he will forfeit his obligation,
which was granted by the Justices
(Sjt Haugh, continuing:) so here; so etc.
Townshend JCP: it seems that it is no plea; and Sir, when a condition extends to a stranger (estrange persone) to be performed, the obligor ought to do this at his peril, or otherwise he has lost his 'bond', because when he is obliged to make a condition (should be feoffment) to a stranger, he undertakes (enprend) upon himself that the stranger will be ruled by him, and also that he has knowledge (science) of his (ses) conditions, and so all this is implied in such a condition for a stranger (estrange persone), etc., but the act of God can cause that the condition will not be performed, as if she (the wife) dies, etc.
and this was granted by all the Court
(Townshend JCP, continuing:) and Sir, I am obliged to B. that one such his servant will serve him well and lawfully during 10 years, and afterwards his servant enters into religion, and is professed (a monk), the obligation is forfeit, because I have taken on myself the charge of him (servant), that is of the third person (le iii persone), and so in the case here, notwithstanding that the woman had entered into religion (professed) , he has forfeited his obligation; so I understand tha tif the third person (l' iii persone) to whom the obligation will be performed does not want to do what is in him to perform the conditions, the obligation is forfeit, because he is, in a manner, a surety for him that he will do this, an if this was true, this goes to Sjt Kebell's reasoning (al' raison del' Keble), and on the other hand if the obligee be not the cause that the condition is not performed, then the obligation is not forfeit, etc.c
Bryan CJCP: it seems (that defendant's plea is) no plea; and (Bryan CJCP) put a distinction (diversite) when the condition is made impossible by the act of the parties, etc.; and in the case that Sjt Haugh put, if the obligation be between strangers that A. will marry B. by a certain day, and the obligor marries B. and the marriage (espousels) continues until this day, there is no doubt but that the obligation is forfeit; but on the other hand if the obligee marries B. before the day, now the obligation is not forfeit, because the obligee is party (to the impossibility), etc.; and if I am obliged to an abbot that A. (will) enfeoff him (abbot) by a certain day of certain land, etc. if A. enters into religion (professes), I have forfeited my obligation, but if A. enters into religion (professes) under (desous) the same abbot to whom I am obliged, now my obligation is not forfeit because he (abbot) is a party to this (fact) that the condition cannot be performed, etc.; and (Bryan CJCP) said that if the condition be against the law (illegality), then all is void, (and) it is otherwise if it is impossible
and so the Justices held clearly that it (defendant's plea) is no plea
contract to marry a daughter
Kallender: Abel, & son Cas, 4 Hen. 7, fol. 4 |
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Fitzherbert Barre 133, fol. 118r, dated this Mich. 1488 |
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Action
Obligation
Condition
Obligor
Death
Father
Month
Sufficiency
Sureness
Sufficient and Sure Estate
Estate
Certainty
Tenements
Woman (feme)
Stranger
Strange Person
Person
Showing
Marriage (prist a baron)
Husband (baron)
Life
Lifetime
Espousals
Continuation
Feoffment
Making Feoffment
Seeming
Forfeiture
Forfeiture Of Obligation
Performance
Performance Of Condition
Inasmuch As
Death (devie)
Notwithstanding
Cause
Contrary
Case
Receipt
Party
Excuse
Understanding (entends)
Binding (lye)
Stranger To The Obligation
Peril
At His Peril
Marriage (marier)
Daughter
Adjudging
Tender
Tender Age
Advantage
Thing (chose)
Reason
Reasoning
Doing All That Is In One
Part
Side (part)
Acceptance
Acceptance Of Feoffment
Fault (defaut)
Default
Always
Readiness
Contents
Containing
Obligee
Day
Certainty
Tender Of Feoffment
Refusal
More
Word (parols)
Otherwise
Construction
Issuance
Point
Power (pouvoir)
Master
Expression
Express Word
Distinction (diversite)
Payment
Sum
Taking
Belonging (appertient)
Pertaining
Severance
Severance Of Condition
By Reason
In Default
Ability
Able
Feoffee
Disability
Disabled
Excusable
Time
Making Of Obligation
Possibility
Possible
Impossibility
Impossible
Death (mourrust)
Entry
Religion
Entry Into Religion
Delimitation (limite)
Feoffor
Manner
Admission
Suit
Covenant
Writ Of Covenant
Levying Fine
Fine
Lease
Term Of One Month
Remainder
Good Lease
Means (voye)
Way
Plea
No Plea
Act
Own Act
Grant
Extension
Loss
Bond
Losing His Bond
Undertaking (enprend)
Rule
Knowledge (science)
Implying
Implication
Act Of God
God
Servant
Service
Serving Well
Lawfulness
Good And Lawful Service
Duration
Year
Profession
Charge
Third Party
Third Person
Surety
Truth (voier)
Reasoning (raison)
Act Of Party
Doubt
No Doubt
Abbot
Under (desous)
Against The Law
Illegality
Note
Reporter (R.)
Sight (Vide)
Folio
Accordingly |
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