Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

The residue of Trinity Term 22. Jac. C. P.

NOw the case of Sir Robert Napper and Sir Thomas Earsefield, was moved again in which the Plantiff assigned the breach, because that after Sir Tho∣mas and his wife did live asunder, the land was not open nor subject to distress of Sir Robert Napper, and upon the opening of this to the Court, the Court con∣ceived that this rent was granted to be paid immediately, and to distrain for that, but afterwards there is a clause, that it shall not begin in point of payment, till Sir Thomas and his wife did live asunder, and then it shall be paid the first day which was limited after: and Crawley Serjeant said, that the intent was, that it should begin presently, and that it should be subject to distress, and therefore to make that an entire covenant, is against the very intentions of the parties, for co∣venants in nature are several, also if they shall be construed, otherwise the partie shall be without the remedy which was intended (S.) a distress, but the Lord Ho∣bert and Winch were of opinion, that if Sir Thomas Earsefield had received his estate truly, that he had but a reversion expectant upon a term for years, and then had made such a grant and such covenants, then in this case the covenant had not been broken, and then the meaning would be, that he should not have any rent till he had one to grant, but it doth not appear here, and therefore is a difference, and the covenant is broken, and Winch said, that the intent was, that the wife shall have that, for her maintenance when they did live asunder, so that then it shall be paid to the use of his wife, for this was in trust for her, and for that reason they ought to be several covenants of necessitie, for the state of the Mother of Sir Tho∣mas Earsfield did not appear in those indentures, and then he ought to take that as it is at this time, and the appearing of that now is not material: and if any other construction shall be made, then the parties to the indentures shall be defram∣ed: Hutton of the same opinion, that they are several covenants in the intent and meaning of the parties, and they are of several natures, for the first covenant is in the affirmative, the second is in the Negative, and the third is in the affirma∣tive, and it is all one, as if the word covenant had been to every clause in express words, for he did not say, that this should be alwayes open, and lyable to distress according to this estate, for then it had been but one covenant, and it had been o∣therwise, for if no estate had appeared, he shall not be chargable in law, nor per∣chance he would not deal with him, and we ought not to take notice of any thing, but that which is upon record; nay, his own plea proves that they are several co∣venants, for to the negative covenant he pleads negatively, and to the other he pleads in the affirmative, and so the very intent proves them to be several covenants,

and Hobert of the same opinion, that it shall be taken as a present grant to charge the present possession, and so judgement was commanded to be entred for the Plan.