| 1325.045 |
1325 |
Common Pleas |
Covenant |
Covenant |
| Pasch. |
18 |
Edw. 2 |
[8] |
599-600 |
Hillary, Roger Sjt (for P)
Ingham, John de Sjt (for D)
Westbury, Richard de Sjt
Ingham, John de Sjt
Cantebrigge, John de Sjt (for P)
Denum, John or William de Sjt (for D)
Herle, William JCP
Denum, John or William de Sjt Devom
Westbury, Richard de Sjt
Denum, John or William de Sjt Devom
Toutheby, Gilbert de Sjt Tond (for P)
Denum, John or William de Sjt Devom
Herle, William JCP
Bereford, William de CJCP Berr'
Denum, John or William de Sjt Devom
Aldburgh, Richard de Sjt
Denum, John or William de Sjt Devom |
Riz |
Thomas |
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C., Robert of, debtor
Richard, creditor |
Chancery
London |
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| Thomas Riz porta son brief de Covenant vers John Hauteyn & counta p' Hillary qe |
64 |
| cesti breve est compris contre ley de terre |
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A John Hauteyn was Sheriff of London from Mich. 1327 to Mich. 1328. |
Summary: In a writ of Covenant, plaintiff counted that defendant had not fulfilled a covenant between them by which defendant would acquit and defend plaintiff as well against the king and his heirs as against all others of all manner of debts demanded by reason of a house in London that defendant had sold to plaintiff, in that the sheriff had delivered half of the house to the creditor of a prior holder of the house, to hold until the debt was paid, and defendant had not wanted to acquit and defend. Defendant alleged that the writ was bad because it spoke of defending against all manner of debts and demands and did not specify what he was to answer to, as required by law. Plaintiff said that the writ spoke in general terms because the specialty was general, and then in the count he had gone into the specifics of how defendant had breached the covenant, for which he sought damages. The defendant insisted that it was necessary that when he was summoned, he should be instructed by the writ of what he should answer to when he came into Court.
Thomas Riz brought his writ of Covenant against John Hauteyn and counted that wrongfully he did not fulfill (tient) a covenant made between them to acquit and defend him as well against the king and his heirs as against all others of all manner of debts demanded by reason of a house sold to him in London, and for that reason wrongfully that, where John sold to Thomas on a certain day in the 12th year a house in a certain place in London and bound himself and granted by his deed that was here that he would acquit and defend Thomas of all manner of debts demanded by reason of the house, there Robert of C., who was seised of this house in the seventh year, made a recognisance in the Chancery to Richard of 40 pounds to pay on a certain day, and because he did not keep his day Richard sued to have half of his lands and of his chattels. The sheriff returned that he had nothing, so that Richard sued to have half of the lands that he had on the day of the recognisance in whose hands they had come, so that the sheriff on a certain day in a certain year delivered to him half of this house to hold in the name of freehold until the debt was levied, so that Thomas came to John and prayed him that he acquit and defend him of this demand, and he did not want to acquit, so he had breached the covenant to him wrongfully and to his damages of so much. The defendant said that the Court saw plainly how the plaintiff had counted that wrongfully he did not fulfill to him a covenant to acquit him, so he joined in his count a plea of covenant and of acquittance, which were of different natures; judgment of the count. The plaintiff said that this was the breach of covenant that the defendant had not acquitted him. The defendant again demanded judgment of the writ and of the count, because by the writ and also in the narration of his count the plaintiff should state in particular (en especialty) his action for which he wanted to summon damages, and then declare how he had an action, as in a writ of Mesne to say that wrongfully he did not acquit him of services that a certain person demanded of him, and he did not do this here, so that the defendant demanded judgment. The plaintiff said that he had taken his action in his writ in accordance with the specialty and then he had declared by count the point where he was damaged, so that etc. The defendant said that the writ stated, command John Hauteyn that he fulfill the covenant to Thomas Riz as well against the king and his heirs as against all others of all manner of debts demanded that could be demanded by reason of a house sold to him and then it said, (Latin begins) unless he does so, that he be etc., to show why he will not do it (Latin ends), so the writ comprised in general terms and supposed as well that he should answer to this that could be demanded as that which was demanded, which was against the law, so that etc. Herle JCP said that the writ was in accordance with the specialty, which spoke in general terms, and then by his count the plaintiff descended into particulars (en especialty) of which he wanted to assume his damages. The defendant said that if he were bound to the plaintiff to fulfill a covenant of 20 houses, and he had breached the covenant solely of one, the plaintiff should bring his writ solely of this. The plaintiff said that then there would be a variance between the specialty and the writ. The defendant said that when one would be summoned to come into Court, it was necessary that the writ be such that the party could be instructed to what he should answer when he came into Court, but it could be that he had an acquittance from the plaintiff of that which he demanded, although he did not have it here, the Court could not render judgment against him because he was not instructed by the writ when he was summoned to what he should answer, so that this writ by law could not be maintained. And on the other hand, now by the count the plaintiff did not compel the defendant to answer to that which the writ said, because the writ said, of all manner of debts and demands. The plaintiff said that the action of a party would be comprised in the words that bound the other party, and this writ in its nature would terminate in the recovery of damages, and by his count he had descended to a certain matter in which the defendant had breached the covenant, and he wanted to aver damage of this, so that etc. The defendant said that this writ was comprised against the law of the land, because by this writ he could not be instructed to what he should answer, and the law did not provide that when he had a day to give a final answer, that he would have a day over as this was (Latin begins) a day to (deliberand') (Latin ends), and this was the reason why the Audita querela would not be granted. Herle JCP said, of this that the defendant said that this writ by law could not be maintained, nevertheless his covenant that he had made would maintain it, because by the words of his covenant he was bound against the plaintiff in an action and this in general terms, where if the plaintiff had taken his writ in particular (en l'especialty) and the deed spoke in general terms there would have been a variance for him, as if the defendant had bound himself to fulfill him a covenant of a manor to acquit and defend etc., which matter was in demand against him by reason of the manor, which took its origin from an earlier time than was the defendant's obligation, he would have his recovery against the defendant by a writ that would say that the defendant should fulfill to him a covenant of the manor, and to say in his count in what point the covenant was breached. Bereford CJCP asked, if several demands fell on the tenements, would he have a writ that the defendant fulfill the covenant of acquittance of T. against a certain person, and of 10 pounds against another, and thus of others? as meaning to say, no. The defendant said that to the plaintiff's writ he had a day to answer, which did not determine on anything certain to which he should answer, so that etc. A serjeant said that if the defendant enfeoffed him of certain tenements and bound himself and his heirs to the etc., and then he was impleaded by an Assize of Novel disseisin and he brought his writ of Warranty of charter against the defendant, the writ would not say against whom the defendant should warrant him; no more in this case. The defendant said, but there the writ would mention of how much he wanted to be warranted. Then they reached an agreement. |
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