The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

LXIV. Mountford and Catesbys Case. Mich. 15 Eliz. In the Common Pleas.

AN Action upon the Case was brought by Mountford against Catesby;* 1.1 And the Plaintiff declared, That the Defendant covenanted, assumed and promised in Consideration of a certain sum of Mony to him paid; and in Consideration of the payment of a Rent of certain Lands demised to the Lessee, That he should peaceably and quietly enjoy the same, without Interruption of any person, and he was ousted by a stranger; And the matter afore∣said was found by special Verdict: And it was argued by Love∣lace, Serjeant; and he prayed Iudgment for the Plaintiff: And he said, That there is a difference, when it is said, that a Man shall hold and enjoy peaceably and quietly; As in Case where one war∣rants Land, there if he be ousted by a stranger who hath not any Title to the Land, he shall have an Action of Trespass against him: But a Man by word, or Covenant, may bind himself to that which he is not bound to do by the Law. As, if the Covenant and

Promise be, That he shall leave the Houses in as good plight as he found them: there, although the Law doth not bind the party to re-edifie the Houses in case they be overthrown by tempest of Wind; or that they be destroyed by Enemies; yet by his special Covenant he shall be bound to re-edifie them. Meade, contrary, And that this promise shall not be taken strictly against the Lessor,* 1.2 that he shall enjoy it against all persons, but only against all persons who have Title, and not against those who have not any Title, because against them he may have his remedy. And if a Man makes a Feoff∣ment of his Lands with Warranty, and covenants, that it is discharged of all Rents,* 1.3 there it shall not extend to Rent Servi∣ces which are incident to the Lands of Common Right: In 3 H. 7. 4. the Case was, The Condition of an Obligation was, That the Obligor should make Appropriation of the Church of Dale such a day to such a House, at his Costs and Charges discharged of In∣cumbrances;* 1.4 there, although there was a Pension granted there∣out to another, it was holden, That the Obligee was not boun∣den to discharge it of that Pension; No more than if a Man be bounden to make a Feoffment of his Land, there, although that he charge the Land, yet he shall not forfeit his Bond: But if it were, that he should make a Feoffment of his Land discharged, &c. it is otherwise; but yet he shall not be bounden to discharge it of such things with which it is charged by the Law. Barham, The words are precisely, That he shall enjoy it without interruption of any person, so as be he interrupted by one that hath Title, or no Title, the Plaintiff hath cause of Action. Manwood, What if the words were, That he should enjoy it without Suit in Law? Meade, That shall be intended of a lawful Suit: And in the principal case, although the Contract be by words, yet it is upon a good Consideration; that is to say, Of a Fine and Income, and upon the payment of the Rent: And therefore as Dyer said, When Catesby the Son leased the Lands to Mountford, the now Plaintiff, and it appeared that his Father, or a stranger, made claim to it, and thereupon he made the promise as before, shall it be intended, that he should hold and enjoy the Lands peaceably without inter∣ruption of them only who had Title? And that he should not have his Remedy against the Defendant upon his promise, if a stranger who had not Title did interrupt him? Truly, he shall have his re∣medy against him: As if the Son had promised that he should enjoy it against his Father; or else that in truth if it were the Land of the Father, shall it not be intended, that the Son did presume that his Father should not interrupt his Lessee? And that he would so deal with his Father, that he should not interrupt him: and it may be, that upon the presumption of the good will of his Father, or that he had treated with him, or compounded with him; that for these, or the like causes, the Son made the promise aforesaid: And if the Father had not any Right or Title to the Land, should not the Les∣see have his Action against the Defendant, if the Father did inter∣rupt

him, for this unlawful Interruption? Truly, Yes; For by the words it is to be supposed, That the Son would so deal with his Father, that the Lessee should enjoy and hold the Lands without any manner of interruption. Mounson, You have well tasted the Opinion of the Court upon this matter before, and now you hear our Opinions again. Manwood, As I said the other day, Can∣not an Hostler take upon him, that the Goods of his Guests which are within his Inn, shall be safe, and charge himself further therewith, than he is chargeable by the Custom of the Realm, and to be chargeable against every one that taketh them away? Truly, I conceive he may. Harper, The common making of Assurance is, That he shall enjoy them without any lawful Interruption:* 1.5 And if the Law, upon the general words of Enjoying without In∣terruption, should be intended but of lawful Interruptions, It were in vain to have this word (Lawful) in the Deed, &c.

Notes

• * 1.1

  Dyer 328. Vaugh. Rep. 120.
• * 1.2

  Hob. Rep. 35.
• * 1.3

  1 Roll. 434. 1 Inst. 389. a. 1 Len. 29.
• * 1.4

  Roll. Tit. Conditions.
• * 1.5

  1 Roll. 429.