The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

Hollis versus Carre, in Cancellaria.

THE Lord Chancellor Finch having called to his assistance Iustice Wild and Iustice Windham, to give their Opinions what relief the Plaintiff was to have for the recovering of 6000 l. which was his Ladys Portion. After those Iudges had spoken shortly to the matter, he put the Case: Viz. The Plaintiff by his Bill demands 6000 l. due to him for his Wives Portion, with Inte∣rest for non-payment, according to the purport of certain Arti∣cles of Agreement, dated in August 1661. and mentioned to be made between old Sir Robert Carr (the Defendants Father) his Lady and Son (the now Defendant) and Lucy Carr his Daughter, on the one part, and my Lord Hollis and Sir Fran∣cis his Son (the now Plaintiff) on the other part.

The Articles mention an Agreement of a Marriage to be had between the said Sir Francis Hollis and Lucy Carr, with Co∣venants on the Plaintiffs side to settle a Ioynture, &c. and on the other side to pay 6000 l. and 'tis agreed in the Articles, that a Fine was intended to be levied of such Lands, &c. for securing the payment of 6000 l. &c.

The Marriage takes effect, but old Sir Robert Carr did never Seal these Articles; the Lady Carr Seals before, and the Defen∣dant after Marriage.

Sir Francis had Issue on his Lady Lucy, one Child since dead; the Lady is likewise dead; the Ioynture was not made, nor the Portion paid.

Afterward, viz. Anno 1664. an Act of Parliament was made for setling old Sir Robert Carr's Estate, whereby the Trusteés therein named, are appointed to sell it for payment of Debts, and raising this Portion; by which Act all Conveyances made by old Sir Robert Carr, since the year 1639. are made void, except such as were made upon valuable considerations; but all those made by him before the said year, with power of revocation (if not actually revoked) are saved; and in the year 1636. he had executed a Conveyance, by which he had made a Settlement of his Estate in Tayl, with a power of revocation; but it did not appear that he did ever revoke the same.

The greatest part of the Lands appointed by this Act of Par∣liament, to be sold by the Trustees, are the Lands comprised in that Settlement; and now, after the death of Sir Robert Carr, the Plaintiff exhibits his Bill against the Son, (not know∣ing that such a Settlement was made in the year 1636. till the Defendant had set it forth in his Answer:) and by this Bill he desires that the Trustees may execute their Trust, &c. and that he may have relief.

On the Defendants side it was urged, that after the Marri∣age there was a Bond given for an additional Ioynture, and it was upon that account that the Defendant was drawn in to execute these Articles: And if the very reason and foundation of his entring into them failed, then they shall not bind him in Equity; and in this Case it did fail, because the Plaintiff had disabled himself to make any other Ioynture, by a Pre-convey∣ance made and executed by him, of his whole Estate; and if this agreement will not bind him, then this Court cannot en∣large the Plaintiffs remedy, or appoint more than what by the Articles is agreed to be done; neither can the Defendants seal∣ing incumber the Estate Tayl in Equity, because the Lands were

not then in him, his Father being Tenant in Tayl, and then living; and the subsequent descent by which the Lands are cast upon him, alters not the Case; for the very right which descends is saved by the Act from being charged.

But on the other side it was argued, that though the Marri∣age did proceed upon the Defendants sealing, yet the Assurance which was to be made, was a principal Motive thereunto; and it being agreed before Marriage, though not executed, it was very just that he should Seal afterwards; and though the additional Ioynture was not made, yet there was no colour that the De∣fendant should break his Articles, for that reason; because if the Bond be not performed, 'tis forfeited and may be sued; and no∣thing appeared in the case, of any Conveyance made by Sir Francis, whereby he had disabled himself to make an additional Ioyn∣ture, and he hath expresly denied it upon his Oath. And though it was was objected, that the Money was raised by the old La∣dy Carr, and by the direction of the Trustees lodged in the hands of one Cook, who is become insolvent; It was answered that there was no proof of the consent of the Trustees, and therefore this payment cannot alter the case.

After the matter thus stated, the Lord Chancellor delivered his Opinion, That the 6000 l. is doe to the Plaintiff, unpaid and unsatisfied; for though the Marriage had not taken effect, yet the Covenant binds the Defendant, because a Deed is good for a Duty, without any consideration.

2. The Plaintiff has remedy against the person of the De∣fendant at Law, for this 6000 l.

3. He has remedy against such of the Defendants Lands, which are not comprised in the Settlement made 1636. for as to them the Trustees may be enjoyned to execute the Trust.

And he desired the Opinions of the two Iustices, if any thing more could be done in this case.

Iustice Windham was of Opinion, that nothing more could be done, but to make a Decree to enforce the execution of the Trust.

And Iustice Wild said, that the Plaintiff has his remedy at Law against the Defendant, and upon the Act of Parliament against the Trustees; but upon these Articles no Decree could be made to bind the Lands, for that would be to give a much better security than the Parties had agreed on. But if there had

been a Covenant in the Articles, that a Fine should be levied, it might have been otherwise; 'tis only that a Fine is intended to be levied.

But as to that the Lord Chancellor was of Opinion, that it was a good Covenant to levy a Fine, for the words (Articles of Agreement, &c.) go quite through, and make that Clause a Co∣venant; but because Iustice Wild was of another Opinion, he desired the Attorny General to argue these three Points.

1. Whether this was a Covenant to levy a Fine or not.

2. If it was a Covenant, whether this Court can decree him to do it, for though the Party has a good remedy at Law; yet whe∣ther this Court might not give remedy upon the Land.

3. If it was a Covenant to levie a Fine, and the Court may decree the Defendant to do it, yet whether such a Decree can be made upon the prayer of this Bill, it not being particularly prayed; for the Plaintiff concluded his Bill, with praying relief in the exe∣cution of the Trust, &c.

In Trinity-Term following these Points were argued by Ser∣jeant Maynard, Sir John Churchil, and Sir John King for the Plaintiff; Mr. Attorny and Mr. Solicitor, and Mr. Keck for the Defendant, all in one day, and in the same order as named.

The Councel for the Defendant urged, that this was no Co∣venant in Law to enforce the Defendant to levy a Fine: 'Tis agreéd that there is no need of the word (Covenant) to make a Cove∣nant; but any thing under the Hand and Seal of the Parties, which imports an Agreement, will amount to a Covenant; so in 1 Roll. Abr. 518. these words in a Lease for years, viz. That the Lessee shall repair, make a Covenant; so in the Case of Indentures of Apprentiship there are not the formal words of a Covenant, but only an Agreement that the Master shall do this, and the Apprentice shall do that, and these are Covenants; but in all these Cases there is something of an undertaking; as in 1 Roll 519. Walker versus Walker, If a Deed be made to another in these words, viz. I have a Writing in my custody, in which W. standeth bound to B. in 100 l. and I will be ready to produce it; This is a Covenant, for there is a present engaging to do it, but there are no such words here, 'tis only a recital, That where∣as a Fine is intended to be levied to such Uses, &c. 'Tis only Intro∣ductive to another Clause, without positive or affirmative words, and therefore can never be intended to make a Covenant, but are

recited to another purpose, viz. To declare the Use of a Fine, in case such should be levied.

If Articles of Agreement are executed in consideration of an intended Marriage, and one side Covenants to do one thing, and the other side another thing; was it ever imagined that upon these words, (Whereas a Marriage is intended, &c.) that an Action of Covenant might be brought to enforce the Marriage: And yet there is as much reason for the one as the other; therefore since the Parties have neither made nor intended it for a Covenant, 'tis not necessary that it should be so construed.

If this is a Covenant, the Parties at Common Law could only bring an Action of Covenant, and recover damages for not levying of the Fine, and that the Plaintiff may do now upon the express Covenant for non-payment of the Money; but then the breach must be assigned according to the words, viz. That the De∣fendant did not levy a Fine as intended; who may plead that a Fine was never intended to be levied, and by what Iury shall this be tryed?

It may be objected, that every Article stands upon its own bot∣tom, and the Title of them (being Articles of Agreement,) extends to every Paragraph.

But as to that, each of these Articles is to be considered by it self; and every Paragraph begins, viz it is Covenanted, &c. which shews it was never intended to make it a Covenant, by the Title of the Articles, and the rather, because 'tis unreasonable to make such a construction; for it is not to be supposed that a Man will covenant that a Fine shall be levied, as in this Case, by A. and B. and himself, when 'tis not in his power to compel another.

2. Admitting it to be a Covenant, yet it would be very hard to decree the execution of a Fine in Specie; for the Father of the Defendant was alive when he executed the Deed, and the Father being Tenant in Tayl, who never sealed, the Son could have no present Right, who did Seal; and if matters had stood now as then, how could a Court of Equity Decree a Fine, by which a Right might be extinguished, but could never be trans∣ferred, and by which no use could be declared? For though such a Fine be good by Estoppel, before the Tayl descends to the Issue; yet no use can be declared thereupon, nor upon any Fine by Estoppel; and there is no reason why length of time should put the Plaintiff into a better condition than he was when the Articles were executed.

3. And lastly, since here is a particular relief prayed in no wise concerning the levying of this Fine, but only a Relief in the Exe∣cution of the Trust, this Court cannot Decree the Defendant to levy one, it being against the constant course and rules thereof.

But on the other side it was said by the Plaintiffs Coun∣cil, that the words do declare the intent of the Parties, that a Fine shall be levied; and 'tis the Intent which makes the Agreement; and where there is an Agreement an Action of Covenant will lye.

If a Man Covenant to do such a thing in consideration of a Marriage, and then there is this Clause, viz. Whereas it is intended that he shall Marry before Michaelmas, that then, &c. certainly upon the whole Deed here is a good Covenant to marry before Michaelmas.

In this Case 'tis Covenanted, that 6000 l. shall be paid, and that it shall be secured as herein is after mentioned; then 'tis de∣clared, that a Fine is intended to be levied for that purpose, this is a good Covenant to make a Security by a Fine.

But if the particular manner how the the Security was to be made had been omitted, yet upon the words (Covenant to secure it,) the Court hath a good ground to make a Decree to levy a Fine, that being the only way to secure it.

2. As to the Objection, that the Defendant had but a possibi∣lity of having the Estate when he entred into this Couenant, (ad∣mitting it to be so) yet why should that be a reason to hinder him from making good the Security when he hath it; if Fa∣ther and Son Covenant to make an Assurance, the Father who had the Estate in possession dies, the Decree must then operate upon that Estate in the hands of the Son.

3. Here is a general prayer for a proper relief, in which the Plaintiffs Case is included, and therefore prayed Iudgment for him.

The Lord Chancellor, presently after the Arguments on each side, delivered his Opinion, That upon the whole frame of the Arti∣cles there was a Covenant to levy a Fine; for wherever there is an Agreement under Hand and Seal, Covenant lies; that in this Case there was a plain Covenant, if the first Article of gi∣ving farther security, be coupled to that Paragraph of intending to levy a Fine, for that is the farther security intended, so that the meaning of the Parties runs thus; I do intend to levy a Fine, which is for the Securing of 6000 l. and this appears to be their Agreement. Now there are many Cases where words

will make a Covenant, because of the Agreement, when the general words of Covenant, Grant, &c. are wanting; as Yielding and Paying will make a Covenant, for the reasons afore∣said.

And therefore the Party having provided himself of real as well as personal Security, by these Articles, he said he would not deprive him of it; especially when it might be more trouble to bring an Action of Covenant for the not levying of the Fine, for upon that many Questions might arise, as who should do the first act, &c. for which reasons he decreed the execution of the Fine in Specie.

Notes

• Decree of the Execu∣tion of a Fine in spe∣cie.
• Ex parte Def.
• Ex parte Def.
• Ex parte Quer.
• Curia.
• Hays versus Bickerstaff. Antea & Postea. Cook versus Herl.