Constable v Clobery
Jurisdiction | England & Wales |
Judgment Date | 01 January 1662 |
Date | 01 January 1662 |
Court | Court of the King's Bench |
English Reports Citation: 82 E.R. 269
King's Bench Division
constable versus clobery. En un action del covenant; scilicet, il let son neife a fraight al defendant, & per charter party indent il covenant ove defendant, & A. que son neife ove prochein vent alera un voyage a Cades. Et le defendant, & A. joyntmetit, & seperalment, covenant ove le plaintiff, que si le neife va I'lntended voyage, & returner al Downes, que doncj, plaintiff averoit de eux taut per le fraight, mes si el vaer al Amsterdam, que clonque lls payera al plaintiff taut pluis, & alleadge, [50] que le neife ad estre al Cades, & returne al Downes, & quod le defendant nori solvit le dit summe per fraight primage, &c. Le defendant plead un special plead, & traverse absq^ hoc, que le neife vade ove le prochein vent: & snr c fuit demur si soit bon traverse. Stone ; Que nemy, quia le substance del covenant, est que le neife vaera, & nemy que vaera ove prochein vent, quia c poet vary, & changer chescun heure. Et c est, et est bien prove per le covenant, que eat.a doner tant pur le fraight, que est tant a dire, come pur alant le voyage, & nemy pur alant ove prochein vent. Ughtred's case, 1 Rep. 9. 3 H. 3. 33. Mes est la mise 48 E. 3. 34. Un covenant aler ove auter al guer, Tauter covenant de doner tant pur c, covenant gist, & en c le party poet aver que il va al guer, ou nemy, a son election. Et per Cur in le principal case fuit teigne male. Mes Jones dit que si le defendant ad covenant, que si defendant ad vaer al Cades ove prochein vent, ^ donque il payaroit, &e. la le plaintiff devoit averre, que il ale ove primer vent. Mes Doderidge done reason come supra, que le vent est incertain, & per c n'est le substance del covenant. 2. Le plaintiff declare, que per indenture, inter defendant & A. fuit covenant, &o. Et sur oyer fuer trois (viz.) defendant A. & B. Calthorp; c est male. Fitz. Executors 80. 15 E. 3. Si deux sont oblige, & un deux morust en un action...
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