« PreviousContinue »
Section III.-Waiver OF PERFORMANCE OF CONDI-
· · · · · 1254
JOINT AND SEVERAL CONTRACTS.
IN THE EXCHEQUER CHAMBER, MICHAELMAS TERM, 1587.
[Reported in 5 Reports 18.]
Slingsby and Frances, his wife, brought an action of covenant in the King's Bench against Roger Beckwith, and declared on an indenture tripartite between the defendant, Roger Beckwith, of the first part, William Vavasor, Frances Slingsby, and Elizabeth, sister of the said Roger, of the second part, and George Harvey and the said Frances (then his wife), another of the sisters of the said Roger, of the third part ; and declared that the said Roger Beckwith, the defendant by the said indenture, convenisset, promisisset, and concessisset ad and cum dictis Will. and Francisco, and ad and cum præd' Georgio and Francisca uxore ejus, and assignat' suis, and ad and cum quolibet and qualibet corum, quod præd' Rogerus ad sigillationem and deliberationem ejusdem indentur' fuit legitime and solus seisitus de Rectoria de Aldingfeet in Com' Eborum. And on this covenant issue was joined, and the venire facias was de ricinet Castri Eborum, and the issue by nisi prius was tried for the plaintiff, and damages assessed, upon which judgment was given in the King's Bench. And now in a writ of error in the Exchequer Chamber before Anderson, C.J., of the Common Pleas, Manwood, C.B., of the Exchequer, Windham, Periam and Rhodes, JJ., of the Common Pleas, and Gent and Clark BB, of the Exchequer and of the coif, it was resolved that the said judgment was erroneous, for it appears by the plaintiff's own showing in his declaration that the plaintiffs only cannot maintain an action of covenant, but the other covenantees ought to have joined in the action with them, notwithstanding these words (and ad and cum quolibet and qualibet eorum), for as to these words this difference was agreed. When it appears by the declaration that every of the covenantees hath or is to have a several interest or estate there, when the covenant is made with the covenantees, and cum quolibet eorum, these words cum quolibet eorum make the covenant several in respect of their several interests. As if a man by indenture demises to A. Blackacre, to B. Whiteacre, to C. Greenacre, and covenants with them and quolibet eorum, that he is lawful owner of all the said acres, etc., in that case in respect of the said several interests by the said words and cum quolibet eorum the covenant is made several. But if he demises to them the acres jointly, then these words cum quolibet eorum are void, for a man by his covenant (unless in respect of several interests) cannot make it first joint, and then to make it several by the same or the like words, cum quolibet eorum ; for although sundry persons may bind themselves and quemlibet eorum, and so the obligation shall be joint or several at the election of the obligee, yet a man cannot bind himself to three, and to each of them to make it joint or several at the election of several persons for one and the same cause, for the Court would be in doubt for which of them to give judgment which the law would not suffer, as it is held in 3 H. 6, 446. There it appears that one brought a replevin against two persons for an ox, who made several avowries, each by himself in his own right; and there by advice of all the justices both the avowries abated for the inconveniency, that if both the issues should be found for the avowants, the Court could not give judgment on them severally for one and the same thing. Also the covenantor in the case at bar would be divers times charged for one and the same thing, and therefore the said words and cum quolibet eorum are in such case but words of amplification and abundance, and cannot sever the joint cause of action. And it was also resolved that an interest could not be granted jointly and severally. As if a man grants proximam advocationem, or makes a lease for years of land to two jointly and severally, these words severally are void, and they are joint-tenants, so if a man makes a feoffment in fee by deed to three, and warrants the land to them, and cuilibet eorum, this warranty is joint and not several. But in such case if their estates were several, their warranty should be several accordingly, but a power or authority as to make livery or to sell, etc., may be joint and several, for there they have not any interest or action, but are as servants to others. See 16 Eliz. Dyer, 337–338 acc.; Sir Anthony Coke's Case, 6 E. 2 ; Covenant Br. 49 ; 12 H. 4, 18 in Detinue. And for this error the judgment was reversed. Another error was assigned concerning the visne, but as to that the Court did not deliver any opinion.