by the sale. Therefore have you any thing else to say? Yaxley took a futher day until to-morrow. Quære.Year Book, 21 Hen. 7, 6. In the Exchequer Chamber the case was this. That one had four feoffees of his land to his use, and sold his land to one H., and said to two of the four feoffees that his will was, that the four feoffees should make a feoffment to the said H. and the two feoffees gave notice to the other two that the will of their feoffor was, that they should make a feoffment in fee to the said H.: and these two refused to make the feoffment to H.: but the two to whom the feoffor himself gave notice, conveyed to H. as far as appertained to them: and then the feoffor sold the said land to one J. and came to the two feoffees who refused to convey to H. and desired them to make a feoffment to J., and so they did on their part: and the said H. brought his writ of subpoena in Chancery against the two feoffees who refused to convey to him: and this matter was adjourned into the Exchequer Chamber; and inasmuch as the two feoffees to whom the feoffor gave notice, did not say to the others, that their feoffor desired and commanded them to make the feoffiment, but only gave notice of the will of their feoffor, to which they were not bound to attend without the command and request of their feoffor, the opinion of the judges was, that they should go quit of this subpoena, and it should be discharged, because they only did as the law permits. Some said, although the feoffor had sent one of his servants to his feoffees to command them to make an estate according to his will, that the feoffees were not bound to make a feoffment without specialty proving his wish.-Year Book, 37 Hen. 6, 35. if we Subpoenas would not be so often used as is now, minded those actions on the cases, and maintained the jurisdiction of this Court [the King's Bench] and of the other Courts.-Year Book, 21 Ed. 4, 23. action on the house. One Lawrence Walton brought a writ formed on spe- Question as to cial matter against Thomas Briuth: and the writ was, de case for not placito, &c.-Quare cum idem T. ad quasdam.domos ip- building a sius Lawrentii bene et fideliter infra certum tempus de novo construendas apud Grimesby assumpsisset; prædictus tamen T. domos ipsius L. infra tempus prædictum &c. construere non curavit, ad dampnum ipsius Lawrentii decem librarum, &c. And he [Lawrence] counted accordingly. Tirwitt. Sir, you see how he has counted of a covenant [contract], and of that he shows nothing: [therefore] judgment, &c. Gas[coigne]. And forasmuch as you answer nothing, we demand judgment, and we pray our damages. Tirwitt. This is merely a covenant [contract]. Bryn[chesley] [J. C. P.] And so it is, and peradventure if he had counted, &c. or if in the writ mention had been made that the thing had been commenced, and then by negligence nothing done, it had been otherwise. Hank[ford] [J. C. P.] He [Lawrence] may have writ on the statute of labourers, and this carpenter [Thomas] is an artificer, wherefore you may have a good action against him on the statute (a); for you well know that action of covenant [action on the case for nonfeazance of a contract] a man cannot have against his servant, if he acts against his covenant [contract], if he has not a deed of that. Rokhill [J. C. P.] For that you have counted on a covenant, and show nothing of that, take nothing by your writ, but be in mercy.-Year Book, 2 Hen. 4, 3. (a) See Brooke's Abridgement and Fitzherbert's AbridgementLabourers. Action on the case adjudged not to lie for nonfeazance of undertaking to build a house. Subpœna upon : A writ was brought against a carpenter upon such matter [as follows]: that whereas the defendant had undertaken to make for the plaintiff a new house within a certain time, he had not made the house at all, to the wrong, &c. Til[ ]. Sir, you see well how this matter sounds in manner of covenant of which covenant he [the plaintiff] shows nothing we demand judgment if action [will lie in such a case] without specialty? Norton. And we [demand] judgment: Sir, if he had made my house badly, and had spoilt my timber, I should have had action on the case well enough without deed. Tir[witt] [J. C. P.] I quite grant [that he would] in your case: for that he should answer for the tort that he had donequia negligenter fecit. But when a man makes a covenant [contract], and will not do any thing [in respect] of that covenant, how shall you have an action against him without specialty? Hill [J. C. P.] He might have had an action on the statute of labourers in this case, suggesting him [the defendant] to have been retained in his [the plaintiff's] service to make a house: but this action is too feeble, wherefore, &c. Hill. For that it appears to the Court, that this action, which is brought at common law, [is] of a thing which is covenant in itself, of which nothing is shown, the Court awards here that you shall take nothing by your writ, but be in mercy, &c.-Year Book, 11 Hen. 4, 33. Brooke remarks upon this case (Abridgement, Action sur le Case, 40) videtur good law at this day: for action on the case, which shall be brought upon assumption, shall be brought quòd pro tali summâ pecuniæ ei solutâ, &c., defendant assumpsit, &c., and in this case supra, no sum of money is suggested [to have been paid]: ideo est nudum pactum, &c. If a man promise me to build me a house, and does not promise to build build it, I shall have remedy by subpoena.-Brooke's Abridgement, Conscience, &c., 14; Year Book, 8 Ed. 4, 4. a house. a Agreement to Nota: If one makes a covenant [agree] to build me house by such a day, and he does nothing of the kind, I shall have action upon my case upon this nonfeazance, as well as if he had done it ill [as if there were misfeazance], for I am endamaged by that: per Fineux, Chief Justice [K. B.] And he says that he has adjudged accordingly : and he holds it for law. And in like manner, if one bargains with me, that I shall have his land to me and my heirs for 201., and that he will convey to me: if I pay him the 20%., if he does not choose to convey to me according to the covenant, I shall have action upon my case, and have no need to sue out a subpoena.-Year Book, 21 Hen. 7, 41. build. Agreement to sell land. Action on the case. Subpoena. case for divert Action on the case was brought by H. Lord de Gray Action on the against one: and he counted how he had a mill at T. and ing water from from time whereof, &c. the water ran from the mill of A. a mill. as far as his mill:—there [near his mill] has the defendant made a trench to let the water out of its course :therefore the action accrues to the plaintiff. Pigot demanded judgment of the writ, because he [the plaintiff'] may have assize of nuisance: for one shall never have action on the case, where he may have another action at the common law as if land is given in frank-marriage, and the fourth degree is passed, and he [the plaintiff] makes mention of the frank-marriage, the writ shall abate: for he ought to have a writ and count upon a general gift, and not upon the marriage, because the frank-marriage is determined (a). And the judges held the case of frank-marriage to be good law: and sic fuit adjudicatum before these times. But it is not like to the case at the bar. For if a ward be ravished out of his [the guardian's] possession, he shall have writ of ravishment of ward, or distress at the common law, at his pleasure. And the opinion of the Court was, that action on the case lay well enough. Wherefore Pigot said further, that the plaintiff let the said mill to one T. for a term of years, which term Action on the case for nonfeazance as well as lasts still. Judgment, &c. And it was held that such action on the case lies as well for nonfeazance of a thing, for misfeazance. as for the misfeazance of a thing.-Year Book, 21 Hen. 7, 30. Sale of land. Debt for purchase money. case for refusal to enfeoff. (a)" Liberum maritagium dicitur, ubi donator vult quòd terra data quieta sit et libera ab omni seculari servitio, quod ad dominum feodi possit pertinere: et ita quòd ille, cui sic data fuerit, nullum omnino faciat inde servitium usque ad tertium hæredem, et usque ad quartum gradum, ita quòd tertius hæres sit inclusivus. Gradus vero computandi sunt, &c.”—Bracton, lib. 2, c. 7. See also Glanville, lib. 7, c. 18, and Fleta, lib. 3, c. 11. In writ of debt for 201., the plaintiff declared upon a sale made by him to the defendant of twenty-four acres of Action on the land for twenty-nine marks, parcel of the 201., payable at the feast of Easter: and also that he sold to the defendant [a rent of] two quarters of wheat for 13s. 4d. the residue of the 201.: and he said that he had enfeoffed the defendant in the said twenty-four acres in fee, and oftentimes he had demanded the said 201., &c. Danby. With respect to the 13s. 4d. [the defendant] owes him [the plaintiff] nothing, [and he is] ready [to make proof] by [wager of] his law and with regard to the twenty-nine marks, we say that he sold to us the said twenty-four acres, and the rent of two quarters of wheat payable at the feast of Easter from year to year: and the feoffment of the land [was] to be made, and also the grant of the rent, before the feast of Easter last past, for eighteen marks [only] and we say that before the said feast, on such a day, we required him to make the said feoffment and the said grant, and he refused. ** : ** Newton [J. C. P.] If I sell twenty-four acres of land for 20%., although I do not enfeoff him [the buyer], still I shall have against him good action of debt: and other remedy has he not [except] that he has action on the case against me and it shall be adjudged his folly, that he took not better security of me to make the feoffment to |