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.

Easter 20. Jac. C. P.

Hill against Waldron. Easter 20. Jac. C. P.

HIll against Waldron in an action of debt upon an obligation, the condition was that I. S. shall levy a fine to the obligee before such a day of such land, the Defendant pleaded that the obligee had not sued forth any writ of covenant, the replication was that before the obligation made I. S. had made of feofment in fee of the same land to I. S. and that the feoffee continued in possession at the time of the making of the obligation: and upon this the Defendant demurred: and in this case two points were moved; first, when I am obliged that I. S. who is a stranger, shall levy a fine to the obligee, whether in this case the obligee is bound to sue a writ of covenant, and it was argued by Serjeant Harvy that not, yet he agreed that if the condition was, that the obligor shall levy a fine to the obligee, in this case the obligee ought to do the first act, viz. to sue a writ of covenant, as Palmers case Cooke 5. but otherwise when the fine is levied by a third person, for there the obligor had took all upon him 4. H. 7. 15. E. 4. if I am bound to marry the daughter of I. S. and she will not marry me, yet I have forfited my obligation, and so here he ought to leavy a fine at his perill, and at his own costs, or at the costs of the obligor. But admitting that the obligee ought to sue a writ of cove∣nant, because it appears by the replication that before the obligation made, I. S. had made a feofment over, and that the feoffee did continue possession at the time when the fine was to be leavied; and therefore the obligee needs not to sue forth any writ of covenant, because he who is to leavy the fine had disabled himself to perform that; and he urged Sir Anthony Maines case where Cooke 5. the party needs not to tender a Surrender because that he who had the reversion had granted that over before the Surrender was to be made.

Serjeant Hendon to the contrary, for he argued that the obligation is not forfeit, except the obligee sue a writ of covenant, and there is no difference between this case, and when the obligor himself was to leavy a fine, for the obligor had not undertaken for the whole fine, but only that I. S. shall acknowledge a fine, and if the obligor shall be compelled at his perill to sue a writ of covenant, then you will construe the condition to extend to an unlawfull act, for it shall be maintenance in him to sue forth a writ of covenant, & he vouched a case P. 4 Iac. Rot. 1548. Burnell against Bowle: the condition of the obligation was, that I. S. shall acknowledge a judgement in this Court to I. D. and in debt upon this obligation the Defendant pleaded that the Plantiff had not sued forth any orginall writ, and it was holden a good plea: and for the second point he held that the obligee ought to sue this writ of Covenant, though that I. S. had dismissed himself of the land, for the words are general that I. S. shall leavy a fine, and this he ought to do, though no estate pass by the fine, for a fine upon release shall be a good performance of the Condition, but otherwise if it had been to make a feofment in fee, for a man cannot make a feofment except he be seised of the land at the time, as 31. E. 3. debt. 164. a man was obliged to present the obligee to such a Church, and the obligee took a wife by which he had disabled himself to be a person, yet the obligor ought to present him, for otherwise he shall forfeit his obligation, and so in this case Ho∣bert and Hutton as to the first point held the barre to be good, and that the obligee ought to sue forth the writ of Covenant, for Hobert said he ought to do that, for it is no reason to compel the obligor who is a stranger to the estate which passeth by the fine to sue a writ of Covenant, and for that reason, if I am bound to compel you to come upon such land to take a feofment, I am not bound that the other make a livery of seisin, but if the case was that I was obliged to you, that I. S. shall leavy a fine to I. N. in such case the fine ought to be leavied at my peril, though that I. N. will not sue a writ of Covenant; Hutton according, but Winch doub∣ted of the case, and as to the second point Hutton and Hobert agreed that the obligee as this case is needs not to sue a writ of Covenant, because that I. S. had made a feofment of the land before, and so had disabled himself at the time of the obliga∣tion, for now it is impossible to leavy a good fine, for if he should enter into the land and put out the feoffee, this were not good within the condition; and Hutton said, it ought to be agreed that if I. S. had made a feofment after the time of the making of the obligation, and so had disabled himself afterwards, and the obligor is bound that a fine shall be leavied, this is to be understood of a good and a lawfull fine, and not a fine in name only; and he put the case; that I let for years, and after Covenant to make a feofment to I. S. this lease for years is a breach of the Condition, though at the time of the Covenant made the lease for years was made. Iustice Winch thought the contrary, for this disability is by the act of a stranger, and for that the obligor may not take any certain notice of that, and there∣fore if I am obliged to you, that I. S. shall enfeoffe you of his Mannor, and at the time I. S. had made a feoffement of two or three acres of the same Mannor, yet if he enfeoffe you of that which he was seised at the time of the obligation, this is a good performance of the Condition, though that 2. or 3. acres were disjoyned from that before, and so in this case the obligor being a stranger to the estate of I. S. if I. S. make such an estate as he had at the time of the obligation made, this is sufficient, upon which he concluded, that the Plantiff shall not have judgement, but afterward judgement was commanded to be entered for the Plantiff according to the opinion of Hobert and Hutton.

Hoels case.

HOels case upon a special verdict, was to this effect, a man was seised of 2. acres of land in fee, and had 2. sones, and he devised both the acres to his

wife for life, the remainder of one acre to his eldest son in fee, the remainder of the other acre to his youngest son in fee, upon this condition in manner and form following, if either of my sonnes die before my depts and legacies are paid, or before either of my sonnes enter into their part, that then the longest liver shall have both parts to him and to his heires in fee, and the devisor died, and Hoel the Plantiff being the eldest sonne in the life of his mother released all his interest and his demand in this to his younger brother, and the doubt was, whether this condi∣tion was gone by this release, and Attoe argued that it was gone, for Littleton saith, that every land may be charged one way, or other: see Anne Mayowes case, Release, Coo. 1. Albaines case, power of revocation released: see more of this afterwards.