Hill against Waldron
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1657 |
| Date | 01 January 1657 |
| Court | Court of Common Pleas |
English Reports Citation: 124 E.R. 25
COURT OF COMMON PLEAS
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 a feofraent in fee of the same land to I. N. 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 ia 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 Serjeanb 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 that 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 covenant, because it appears by the replication that before the obligation made, I. S. had made a feofment over, aud 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 need not to tender a surrender because that he who had the reversion h^d granted that over before the surrender was to be made. [30] Serjeant Hendon to the contrary, for he argued that the obligation ia 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 unlawful act, for it shall be maintenance in him to sue...
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