Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust.

IN an Action upon the Case, upon an Assumpsit between Sharp, Plaintiff, and Walter Rust Defendant, upon non-Assumpsit pleaded, it was found for the Plaintiff, and it was moved in arrest of judgement upon these words in the Declaration, the Defendant (being Father to the Plaintiffs Wife, for whom the Apparrel was bought) said to the Plaintiff, deliver the Apparrel to my Daughter, and I will pay for them, and saith not to whom the pay∣ment

shall be made: And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement, for by necessary implication and reference of the words precedent, the certainty of the pers on appeareth to whom the payment ought to be made. And he observed that in our Law the time, the estate, the thing, and the person not being sufficiently expressed, * 1.1 yet by necessary coherence and relation to matter precedent, they are some∣times made certain enough: 1. For the time, Perkins. P. 496. puts the Rule, if a condition hath relation to an act precedent, and no time is limited when it shall be done, yet if ought to be done when the act precedent is done, and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre, that then he wil pay me 10 l. &c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwith∣standing there be no time limited when it should be payd. 2. For the thing being put incertainly, yet the communication precedent makes this certain, 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe, where it is a∣greed, that albeit it is not shown what thing is granted, yet it shall be the Land of which the communication was. 3. For the Estate, although it be incertain, yet sometimes it is made certain by the matter precedent, as in the Case Co. lib. 8. A Stewardship was granted for life, and afterwards an Annuity was granted for the exercise of that Office, without declaring what Estate he should have in that Annuity, and resolved that he should have the Annuity for life, because he had the Office for life. 4. For the person, the consideration sometimes ascertains the person, and therefore if land he given to one by Deed, habendum sibi una cum filia donatoris, in frankmariage, this shall enure to both, because the Feme is Causa donationis, and by in∣tendment of law the Land and the feme shal be given together to the man for the advancement of the Feme, as it is Mich. 2. & 3. Ph. & Mary. Dyer 126. a 4. E. 3. 4. Plow. Com. 158. enfeoff him & another, and bind him and his heirs to warrant, & doth not say to whom he shall warrant, yet the Feoffee and his heirs shall have advantage of this warranty, for it cannot have any other in∣tendment: 6. E. 2. Voucher. 258. 22. E. 4. 16. & Kelleway 108. & Co. lib. 8. Whitlocks Case, In a Lease for years reserving rent, it is the surest way to make the reservation to no person in certain, but to leave it to the general intendment of the Law, 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts, and doth not say by whom, they shall be sold by his Executors, because they are lyable for the payment of his debts, but if one devise that his land shall be sold, & saith not for the payment of his debts, the devise is void, because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota, if a man be bound in debt or Covenant by writing, and puts such a clause in the writing. Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot. & in solido se obligavit, that although none speak there but the princi∣pall in the writing, if the others put to their seals, they accept that which the principal spake, & so become principal: 2. E 4. 20. and here in our Case it appeareth that the Deed was so, & therefore it is reason that the Declara∣tion should be so, for there cannot be a material difference between the Decla∣ration & the deed, & especially being upon an agreement which is to be ruled according to the intention of the parties, as it is in Plow: Com. 140. a. In our Law if any parties be agreed upon a thing, and words are expressed or written to make the agreement, although they be not apt words, yet if they have substance in them tending to the effect intended, the Law shall take * 1.2 them of the same substance as words usuall, for the Law regards the inten∣tion of the parties, and here the intent appeareth that the assumption shall be m••de to the Plaintiff, although there want expresse words, and therefore he prayed Iudgement for the Plaintiff. And afterwards the same Term Iudgement was given for the Plaintiff.

Notes

• * 1.1

  Where a thing incertain may be made certain both in time, estate, and person.
• * 1.2

  Intention of parties to be observed.