Hungerford Plaintiff, against Haviland Defendant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1688 |
| Date | 01 January 1688 |
| Court | Court of the King's Bench |
English Reports Citation: 81 E.R. 268
COURT OF KINGS BENCH
[323] hungerford Plaintiff, against haviland Defendant. Entred Terrain. Hillar. 22 Jac. B. R. Rot. 194. Promise. 1 Ro. Rep. 370. Latch. 37. 94. 129. Benl. 180. Jones 132. In an action upon the case for a promise; the case upon the pleading was this,, Thomas Smith was seised of land, and held this of the plaintiff, as of his mannor of Winston, by rent, and by a customary relief of one years value : Smith aliened this land unto Haviland, who 1 Maij, 10 Jac. devised this to the defendant Haviland, the devisor died, the defendant entred and waa seised : the plaintiff lays a colloquium between him and the defendant, as touching the arrearages of the rent, and the relief, the plaintiff said unto the defendant, that if he would not pay him, he would put him in suit for it; upon this the defendant did assume and promise unto the plaintiff, that ii he would forbear the putting of him in suit until the next court, and then if the plaintiff should make it appear to the brothers of the defendant that these tenements were so chargeable, with the 5s. yearly rent, and with the relief, that then he would pay this unto him; the plaintiff avers, that upon this he did forbear the suit, and that. 8 BU1STKODB. 824. TfeRMIN/HILIJAR. 1 - OAR. 'l B. . 269 at the next court he made it to appear to the brothers of the defendant, per prseserita-tionem, hoiuagij curise illius, and also by the records of the court, that the rent and relief were due unto him by the defendant, and that notwithstanding all this, the defendant hath not paid this unto him according to his promise: undo actio, the defendant comes in and confesseth the action. As to the exceptions taken in arrest of judgment. The first and chief exception insisted upon, was, that he cannot have remedy for the relief, if the law do not give him remedy for it; and so thia resembled unto Godfreys case, Coke 11 pars, as to prescribe in the thing, so he ought to prescribe in the means to come unto it. As to this, it is here laid, that by law he may distrain for it, this being relevium cum acciderit, secundum consuetudinem manerij, so that (as it was urged) this is parcel of the tenure, and then he may well for this distrain; and this appears 14 H. 4. fol. 2. full in point, in the case of recordare longum, by Hankford; but admitting he had no remedy for this relief, yet he may distrain for the rent, and this is sufficient...
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