Jurisdictions, Part 139
Bargains and Contracts.
For that your Actions of Debt are in Court Barons of Bargains and Contracts, it is convenient to ſpeak ſomething of Bargains and Contracts, and where the Cauſe or Duty is traverſable, and where otherwiſe adiudged, what is a good Plea, and what Pleas he ſhall not have, for that he may wage his Law.
DEbt of that, that he let one Chamber, and Board for his Wife and Son, for every Week ſix ſhillings, it is a good Plea, to ſay, that he did not let the Chamber, for he deſtroys the Contract in part, and it is intire, 9 Ed. 4. fol. 1.
21 Ed. 4. f. 26. If the Plaintiff ſell two Horſes for forty ſhillings, and counts in Debt, that the Defendant bought a Horſe for forty ſhillings, the Defendant may ſay, that he owes him nothing, in manner and form, or vary from the Contract, and the Jury upon pain of Attaint ought to finde for the Defendant; the ſame Law is, if he ſell one Horſe, and counts that he bought two Horſes for forty ſhillings; or if he ſell a Horfe for forty ſhillings, and count that he bought an Oxe for forty ſhillings, upon pleading that he oweth him nothing in manner and forme, this is material to aid the Defendant.
3 H. 6. fol. 51. Debt and counts for Tallow bought for forty ſhillings: the Defendant ſaith, that he bought the Tallow for three ſhillings and four pence, which he is ready to pay, and to the remnant wages his Law, and had it.
14 H. 8. fol. 17. If I ſell Goods for ſo much as J. S. ſhall ſay, it is no Bargain forthwith, and yet if he ſell them to another, before J.S. ſaith, what he ſhall pay, Action upon the Caſe it ſeems lies.
14 H. 8. fol. 20. If Leſſee for years grant his Intereſt to one upon Condition, that he obtain the good will of the firſt Leſſor, and pay ſo much as he ſhall arbitrate, and he obtain his favour, this is a good Contract: but there agreed, that is but a Communication without (Quid pro quo) forthwith, or at the Day agreed, as here. If you ſay, that you will give to me ten pounds for my Horſe, and you do not pay forthwith, it is no Bargain; but if you be telling out your Money, he cannot ſell that to another in the mean time, for there was no fault in you: but if Agreement be, that you ſhall give ten pounds for my Horſe, and I give a Penny in earneſt, that ſeems a perfect Bargain, and you ſhall have the Horſe, and I ſhall have the Money by Action of Debt, 15 H. 7. f. 6.
10 Ed. 4. f. 21. If a Preiſt be hired to ſing for ten pounds per annum, he is not compellable to ſerve, as a common Laborer is, but if he depart within the terme, his Wages is intire, and ſhall have nothing, and there it ſeems if one ſels his Horſe to me for twenty ſhillings, he may keep him till I have paid him.
17 Ed. 4. f. 1. Treſpaſſe of Corn taken: Defendant ſaith, the Bargain was, that the Defendant ſhould go to J. S. and ſee the Corn, and if they liked upon the view, and gave forty pence for every Acre that he ſhould have it: and ſaith, that he liked them upon the view, and took them, and it is no good Plea; for notwithſtanding the Bargain was, that he ſhould have upon his good liking upon view, yet it is upon giving ſorty pence for every Acre alſo, and he cannot take them before he pay, for that is parcell of the Contract. And ſo if one agree upon the price for Wares, he cannot take them before he pay, unleſſe he have Day of Payment given unto him.
18 Ed. 4. f. 6. The Husband ſels Trees growing upon the Land of his Wife for twenty pound, and the Buyer takes part of the Trees, and paid ten pound, and after the Wife died without Iſſue, ſo that the Husband ſhall not be Tenant by the Curteſie: The Husband ſhall have Debt for the ten pound, for that, that the contract was intire, and yet the Buyer ſhall not have the reſidue of the Trees. And where one ſells another mans Horſe, which he hath by wrong for ten pound, out of an open Market, and the owner take the Horſe, as he may; yet debt lieth for the ten pound, for that, that the Contract was once executed, and by Brian, if one ſells a Horſe for ten pound he may keep him if he will till he be paid.
20 H. 6. f. 22. A man ſeiſed in fee of land, ſels the trees, and after makes a Feoffment in fee to another before the cutting, the buyer ſhall have the Trees.
21 H. 7. f. 6. by Fineux, If one ask the price of a Cloth of a Merchant in London, and he ſaith, twenty ſhillings, and the party ſaith he will give it, and he takes the Cloth the Merchant may have action of Debt for the twenty ſhillings, or keep it till he be paid, and if the other take it againſt his will, he ſhall have treſpaſſe at his choiſe
14 H. 8. f. 17. If I ſell my Horſe for ſo much as J.S. ſhall ſay, it is ſaid it is no bargaine forthwith, but if he ſell that to another before J.S. have ſaid what he ſhall have, I ſhall have an action upon the caſe.
23 H. 6. f. 50. Debt, the Plaintif counts that he ſold twenty Acres of land to the Defendant for twenty pound, which he demanded, and by Newton though the Plaintif do not infeof the Defendant, yet he ſhall have Debt, and the Defendant ſhall have an action upon the caſe againſt the Plaintif: See, 3 H. 7. f. 14.
2 H. 7. f. 12. Action upon the caſe lies for that, that the Defendant hath bargained and ſold to him lands, and that he hath infeoffed another of them and the Defendant traverſes the Feoffment to another, and that proves that this is the cauſe of his action and not the bargaine.
18 Ed. 4. f. 16. If the bargaine were that the Plaintif ſhould give ten pound for ſo much wood, if he liked it, or it pleaſed him upon the ſight thereof, this is a bargain at the buyers pleaſure: Now if firſt upon the ſight they diſagree, then it is a void bargaine, though he after agree to it, and if he agree upon the ſight it is a perfect bargaine, though after he diſagree.
5. H. 7. f. 41. One ſells Goods or Wares, and after the Sale he warrants them, this warranty made at another time then at the Sale is void.
9 H. 7. f. 22. If the Seller warrant the thing ſold, the Buyer may have deceit; though he hath not paid the Money, for the Seller may have Debt.
10 H. 7. f. 7. Agreed by the Court, If I ſell certaine Goods to another for a certaine ſum, although he do not pay the Money, if a day of payment be appointed, that is a good bargaine, and the property altered by this ſale. And by Huſſey and Bria…: A Victualler ſhall be compelled to ſel his victuall, if the Buyer tender him ready payment, and otherwiſe not, 39 H. 6. f. 18. contrary by Priſot.
21 H. 7. f. 6. By Fineux, If one demand the price of a Cloth of a Merchant in London and he ſaith twenty ſhillings, and the party ſaith he will give it, and takes the cloth it is in election to make that a bargaine, and to have an action of debt, or to keep it, till he be paid, and if the other take the Cloth by reaſon of this bargaine, againſt his will, he may have action of treſpaſſe.
Plow. Com. f. 309. Where one undertakes by word to make a Houſe without conſideration, that he ſhall have no action.
Plow. Com. fol. 11. There ſaith, That bargaines, or agreements conditionall, ſhall be ſaid good; after that the condition is performed, but before they are but words.
44 Ed. 3. fol. 21. Where one becomes ſuerty for J. S. and in conſideration, will give him longer day of payment, if J. S. do not pay he will, action upon the caſe lies
27 H. 8. f. 33. If I ſell to you twelve barrells of Ale, you ſhall not have the barrells but the ale, but if it were twelve barrells of Wine it is otherwiſe, for this is the uſage and intent.
1 H. 7. f. 13. Debt upon buying Oyle, for a hundred Markes paid, and ſo, though of ſimple contract, it ſeemes the Defendant may ſay, that he bought with condition that he ſhould pay when he had uttered them, without that that the Plaintiff ſold in manner and forme, though he might have waged his Law.
21 Ed. 4. f. 49. Debt of buying a Horſe at I. in the County of Middleſex: Defendant may ſay that he bought him in London, upon condition, without that, that he bought him in I. in the County of Middleſex, but he cannot ſay that he bought him in another County, then the Plaintiff counts, unleſſe it were that he pleads, that it was upon condition.
33 H. 6. fol. 49. Debt, The Defendant cannot traverie the Contract, where he may wage his Law, but the Defendant may ſay, that the bargain was upon condition, and ſo traverſe that, 21 Ed. 4. fol. 28.
34 H. 6. f. 46. Debt upon a bargaine at D. the Defendant cannot ſay that it was upon condition at S. in the ſame County, but in another County he may.
8 H. 6. fol. 53. Debt upon award upon arbitrement, it is no Plea for the Defendant to ſay, that he never ſubmitted to their award, for that he may wage his Law, he cannot traverſe the cauſe of the duty.
9 Ed. 4. f. 39. Where a bargaine is to pay to the Plaintiff ſive ſhillings, or a gown ſuch a day, it is at the choiſe of the Plaintiff after the day, to demand one or the other which he will.
8 H. 6 fol. 53. Debt upon Contract, he cannot ſay no ſuch Contract, or that he did not buy, for he cannot traverſe the cauſe of the duty, where he may wage his Law, 38 H. 6. fol. 22.
11 H. 7. fol. 4. Where a man may wage his Law, he cannot plead-payment in a forraine County. But in Debt upon a Leaſe for yeares by Indenture, the Defendant may plead payment in a forraine County, and that is good, but in the ſame County he ought to conclude, and ſo he owes him nothing, 10 H. 7. f. 4.
20 H. 6. f. 17. Debt upon arrerages of account, payment in another County without concluding, and ſo he oweth him nothing, is good, but where he may wage his, Law his Plea is not good.
22 Book of Aſſiſes 41. VVhere one undertakes to carry his carriage in a Boate and over-chargeth it, by which his loading periſh, action upon the caſe lies.
42 Book of Aſs. 8. Action upon the caſe lies againſt J.S. for that, that the Plaintiff had credit in J.S. and bought of J. S. an Ox, as his Goods where it was the Ox of J.D.
27 H. 8. fol. 34. It ſeems if you pay to me twenty pound that then you ſhall have my Leaſe, and terme of years, this is but a Communication, if you do not pay, and it is a Bargain conditional, that is, at your choice.
Doctor and Student, 104. Promiſe and aſſumpſit, for a thing paſt is not good. Inquire: as I promiſe to give to you forty pounds, for that you have built me a Houſe, it is no good Contract, for it ſhould be perfect at the time of the Contract.
27 Ed. 3. Tit. 6. Apportionment, Br. A man retained to ſerve for a year, for ten pounds at two Feaſts, and the Maſter dies after the firſt Feaſt, he ſhall have Wages but for one Feaſt; but where he was retained for ten pounds, whole by the year, and he departs within the year, he ſhall have no Wages, for Contract ſhall not be apportioned.
21 Ed. 3. Tit. 83. Debt, where a man payes ten pounds for teaching his Son three years, the Son ſhall not have the ten pounds again which is paid, but if the Money were not paid it is otherwiſe, for the Cauſe ceaſing the Effect ceaſeth.
1 H. 6. fol. 8. By Bab. If I be your Debtor in twenty pounds by a ſimple Contract, and I give you a Bond for the ſame, if you bring Debt upon the Bargain, I ſhall plead this well in the Diſchage thereof.
3 H. 4. fol. 20. Debt of twenty pounds upon a Contract: the Defendant ſaith, that the Plaintiff after took a Bond of ten pounds, parcell of it, and held a good Plea to the whole Bargain; for a Bargain determined in parcell, is determined in all, for it is intire.
19 H. 8. Tit 29. If a man be indebted to me by Bargain, and after gives me a Bond for the ſame Debt, the Bargain by that is determined, for in Debt upon the Bargain, it it a good Plea, that he hath a Bond for the ſame Debt; but if a ſtranger make to me a Bond for the ſame Debt, yet the Contract remains, for that, that it is by another perſon, and both are now Debtors, 21 H. 7. f. 5.
11 H. 4. f. 23. If one takes my Beaſts by wrong from my Bailiff, and after I give them to him; by Hank. Bailiff ſhall have no Treſpaſſe.
2 Ed. 4. f. 15. By Danby, Needham, and Moyl, If I deliver Goods to J.S. and a ſtranger takes them, and after I give the Goods to another ſtranger, this is a good Gift: but Littleton ſaith, that the firſt ſtranger hath property as Treſpaſſor, and for that he doth not allow the Gift good.
6 H. 7. f. 9. By Brian, A man cannot give or releaſe his Right by word, though it be a perſonal thing. Inquire.
10 H. 7. fol. 27. By Brian, if a man take my Goods by wrong, and I give them to him, that the Gift is void, as well as if they were given to a ſtranger: but Keeble would that to be good, and inure as a Releaſe, and ſaid, that Releaſe by word of a Chattell, is good as well as with a Condition.
21 H. 6. fol. 43. It ſeems one may contract, and ſell all his Tithes of his Pariſh for ſeven years to come, or the profits of his Court for ſeven years, and it is good.
42 Ed. 3. fol. 24. One may contract and grant, that he ſhall not be impeached of Waſte, and diſpenſe with a thing that is not in being, for that, that Grant is a Covenant, but he cannot releaſe the Waſte to come.
9 H. 6. fol. 12. Where the Queen grants twenty pounds out of the great Cuſtome of London, the Cuſtome is not a thing in being, but is paid by chance, and for that the perſon of the Queen is charged by a Writ of Annuity.
6 H. 7. fol. 5. It ſeems that the King may grant a thing not in (being) if that ſound in Covenant, as to be diſcharged of Tithes, or of collecting of Tenths to be granteb by Convocation.
4 H. 7. f. 10. If on the firſt Day of May, lets to begin at Saint Michael next, the Leſſee may grant or ſell that terme before the Feaſt of Saint Michael, but not releaſe or ſurrender that, 22 Ed. 4. Tit. Grants, 110.
24 Ed. 3. Tit. 47. Grants, Br. If a common perſon grants award, and ſo from Heir to Heir, till one of them come to full age: it is not good for award which ſhall fall afterwards, contrary of ſuch a grant made by the King.
12 Ed. 4. f. 3. Where a common perſon hath but right of Reverſion, he cannot grant it; and ſo it ſeems he cannot grant an Eſcheat of his Tenant, before that fall.
Fitzh. 120. K. If one promiſe another ten pounds to marry his Daughter, and he marry her, this is Contract in our Law, upon which he ſhall have Debt. See 14 Ed. 4. f. 6. & 15 Ed. 4.31.
Fitzh. 44. If one promiſe another ten pounds to marry his Daughter, if he marry his Daughter it is a good Contract in our Law, and if he ſue for that ten pounds in Court Chriſtian, Prohibition lies; but if he promiſe one with his Daughter in Marriage ten pounds, he ſhall ſue for that in Court Chriſtian.
17 Ed. 4. fol. 4. If a man promiſe a certain ſumm of Money to another to marry his Daughter or Servant, which he marries accordingly, Debt doth not lie, for it is Spiritual, contrary, Rogers and Sulyard; for it is (one for another) though it were ſaid, contrary, and the reaſon was, it ſhall be ſued in the Spiritual Court for this Cauſe.
22. Book of Aſſiſes, 70. If one promiſe, that if he will marry his Daughter, he ſhall have ten pounds, this is a Contract, this is a Promiſe in our Law, and he ſhall have Debt: but if he ſay, he will give with his Daughter ten pounds, he ought to demand that before the Ordinary.
45 Ed. 3. f. 24. Where Covenant was by Deed between the Plaintiff and Defendant, that if the Plaintiff took to Wife the Daughter of the Defendant, that then he ſhall be bound to him in a hundred pounds; and if he takes her to Wife, Action of Debt lies, and the Court ſhall not be out of Juriſdiction though that touch Matrimony, for that, that this was by Deed, but otherwiſe it is, if it were without Deed.
37 H. 6. f. 9. By Priſot, if an Agreement be made, that A. ſhall take the Daughter of B. in Marriage, and if he marries her there it is ſaid, that he ſhall not have Debt; for it ſeems it is not (Quid pro quo) Inquire: for if one ſels a Horſe for ten pounds, and hath no Horſe, yet he ſhall have Debt for that, and yet it is not (one for another) and where I ſell my Land in D. for ten pounds, Debt lies, and yet he hath not the Land before Livery.
27 Book of Aſſiſes, 29. Where a man ſels all the Trees in his VVood, and agrees that the ſame Buyer ſhall not cut them before Michaelmas next, if Hauks in the mean time are in the Trees, it ſeems that the Seller ſhall have them.
14 H. 8. fol. 1. If a man let Land, except the VVood and under-wood, and Hernes and Shovelers make their Neſts in the Trees, the Leſſor ſhall have them, for the Trees are excepted, and the Neſts in the Trees; and the ſame Law of Akorns, which come by reaſon of the Trees.
7 H. 7. fol. 5. If a man ſell a Leaſe of Land, and certain Cloth for ten pounds, the Contract is intire, and cannot be ſevered: and if one of them were by defeaſible Title, and deveſted from the Vendee, yet the Seller ſhall have the whole ſumm, for the Contract is intire, and cannot be ſevered. See 12 H. 8. f. 13. & 9 Ed. 4. fol. 1.
9 H. 7. f. 22. If a man ſell ſtuff for forty pounds, and deliver the ſtuff, and no Money paid, nor Day appointed, yet it is a good Bargain, and he ſhall have Debt for the forty pounds: but 11 H. 4. f. 33. If one aſſume to make the Plaintiff a Houſe before ſuch a Day, and doth not, unleſſe it be for ſuch a ſumm of Money, Action upon the Caſe doth not lie, for it is a naked Bargain.
9 Ed. 4. f. 54. By Littleton, if a man recovers in Debt upon a Contract, and doth not take Execution, yet he cannot have new Action of Debt upon the Contract, for the Contract is determined by the Judgement, and the nature of the Duty changed to a Record. And by Danby and Moyle, in Account, Debt, Treſpaſſe, and ſuch like, it is no Plea, that the Plaintiff at another time recovered in them, unleſſe he ſaid, that he had Execution alſo; contrary Littleton and Choke. See there in Debt upon an Obligation ſeems contrary.
2 R. 3. f. 14. Where one brings Detinue, and is barrd by Law waging, he ſhall not have an Account afterwards; for Detinue affirmes property in him, and Account diſaffirmes that.
12 Ed. 4. fol. 13. Where is a Barr by waging of Law in Detinue, one ſhall not have after an Action upon the Caſe, for negligent keeping the thing, as it ſeems.
40 E. 3. fol 27. Where in Treſpaſſe one recovers in London, and be brought in (the thing judged) he cannot refuſe this Judgement, and ſue for the Treſpaſſe in a higher Court.
20 H. 6. fol. 12. Treſpaſſe of Goods taken, it is a good Plea that you at another time brought Treſpaſſe againſt me, and J. S. and that J. S. appeared, and pleaded not guilty, and it was found againſt him, and that the Plaintiff had Judgement, for it is carried in Damages, and reduced into the thing judged, and may have Execution at his pleaſure: but otherwiſe it is in Debt, for there it is not a good Barr, unleſſe he pleads, that he had Judgement, and Execution againſt one.
23 H. 8. Tit. 105. Action upon the Caſe, Debt of twenty pounds, if the Defendant hath waged his Law in this Action, and the Plaintiff brings an Action upon the Caſe, it is a good Plea for the Defendant to ſay, that at another time he was barred in Debt for the ſame, by waging of Law, 2 R. f.
Treſpaſſe, if in Debt, or other Action in the common Bench, the Defendant pleads Recovery of that in a Court of Franchiſe, or that the Plaintiff is barred in a Court of Franchiſe, though it be not of Record here, yet it ſeems that the Defendant ſhall have advantage of Record, and otherwiſe ſhall be a miſcheif. 46 Ed. 3. f. 17.
17 Ed. 3. Tit. Barr, 246. Debt upon an Obligation, it is no Plea, that at another time before the Mayor of London, the Plaintiff recovered upon the ſame Obligation againſt the Defendant, and had Execution, it is no Plea, for that, that the Obligation was not Damnum, nor the Defendant doth not ſhew Acquittance, and the Plaintiff by Award of the Court recovered.
4 H. 7. f. 8. Three bound in an Obligation, joyntly, and ſeverally; it is no Barr for one to ſay, that he recovered againſt another; but that he recovered, and had Execution, is good; and he ought to ſhew Acquittance of the Payment, or otherwiſe, he ſhall be charged.
5 Ed. 4. fol. 5. Debt by ſeverall Precipes againſt two by Choke, where he hath Execution againſt one, he ſhall not have againſt the other afterwards.
22 Ed. 4. fol. 7. Two are bound in an Obligation joynty, and ſeverally; if I have Execution againſt one, this is a Barr againſt the other, but not Judgement onelyonly.