[10 d] Judgment. daughter's mind either one way or other; and the desire of her consent, and the working of it, shows that so the defendant conceived it, and therefore it shall be presumed of importance to have her consent, which being granted at his suit and request, shall be accounted consideration sufficient. And so it was adjudged for the plaintiff, Tr. 12. Jac. Jones 365. Plow. 302. a. 3 Cro: 194, 715. Hutt. 85. Mo. 866. 1 Roll. 13. &c. [11] LEIFIELD vs. TYSDALE. Tythes are not due for the yearly rent of houses. Where there can be no tythes Mo. 918. 13 Cr. Car. 296, Brnl. 2. 34. 260 Yel. 134, 77, 79, 84. 10. 116. b. Co. 52, 53. 7 Co. 2. a. BRIDGEMAN'S CASE. Admiralty cannot hold plea of things done in a foreign land. Nor of obligations or promises made at sea for debts due on land, they not being for a marine cause. Nor can the ship be pledged or proceeded against for any general debt of the master. But if the ship be in distress and the voyage in danger of being defeated, the master may pawn the ship for money to relieve such necessity. PHILIP BRIDGEMAN sued one Williams in the Admiralty 603. Ro. 1.530. Court, and the case was this; that one Philip Bernard was Ro.1.532. Apr. owner of a ship called the Bonaventure, and sent her in78.79. 2 Sand. to Spain, and made Williams master of her, who (as is 135. Co. 12. alleged in the Admiralty Court) did upon the high sea borApr. 196. Co. row of Bridgeman certain royals of eight, to the value of fifty pounds sterling, for repayment whereof he did im107. a. Co. 13. pawn the said ship, and returning now home, and the ship lying in the Thames, Bridgeman obtained a warrant from the Admiralty Court to arrest the same ship, and did so, whereupon Bernard came into the Admiralty Court, and claimed his property, denying that the said Williams was owner, or had any power to pawn it; yet nevertheless the court proceeded to judgment against the ship for his debt.' Whereupon a prohibition was granted by the court, whereof the reasons were, that by the common law, by which properties were to be tried, the master of the ship could seas. 12 Co. 103. Z 1 Ro. 133. p. land. 1 Cro. 602. Ap. 79, 113. [12] not impawn the ship, for no property general or special, [11 a] nor such power is given unto him by the constituting of him master. Also it was alleged, that the contract (if any were) was made in Seville upon the land; and it was held, that the Admiralty Court could hold no plea of things, though done upon foreign lands; and it was also said, R. 492, 497, 4. that it had been often resolved, that if any obligation were 10. Co. L. 134. made at sea, yet it could not be sued in the Admiralty Ap. 213. Court, because it is an obligation, which takes his course, and binds according to the common law. But it was said Admiralty cannot hold plea by the counsel of Bridgeman, that by the civil law the for things at master of the ship hath power to impawn the ship and tackle in case of necessity, and he hath no other means to provide such things as are necessary for her. And I gave opinion generally upon the whole case thus; that the Admiralty Court hath no power over any cause at land, for both by the nature of the court, and by the statute, it is only to meddle with things arising upon the high And further, that these things at the sea done must be also of the same nature and respect. And therefore if a man should make an obligation at sea for security of a debt growing before at land, or should make a promise to pay the same, this cannot be sued in the Admiralty Court, because it is not for a marine cause; as a court of piepowder for market causes. But I was of opinion clearly, 1 Syd. 112, that the admiral law is reasonable, that if a ship be at sea and take leak, or otherwise want victual or other necessaries, whereby either herself be in danger or the voyage defeated, that in such case of necessity the master may impawn for money or other things to relieve such extremities, by employing the money so; for he is the person trusted with the ship and voyage, and therefore reasonably may be thought to have that power given to him implicitly, rather than to see the whole lost. But in this case the faults were, that neither the contract nor the impawning were said to be for any such cause, neither was the im- . pawning said to be at sea, neither was there any colour that for the general debt of the master they should proceed against the ship of another man, And I am of accord. [12 a] opinion clearly, that if this cause had been within the jurisdiction of the admiralty, that we should not prohibit them, because they gave sentence against our law in this point of impawning, for it shall be presumed according to their law, or else an appeal. Vid. 212, 213. Covenant. Pasch. 11. Jac. rol. Demise. HOLDER US. TAYLOR. The word demisi imports a covenant that the lessor had power to lease, upon which an action will lie. Such a covenant may be broken without entry or eviction; but it is otherwise upon an express covenant for quiet enjoyment, HOLDER brought an action of covenant against Taylor, Rot. 1539. Pa- and declared for a lease for years made by the defendant by the word demist, which imports a covenant; (1) and then shews, that at the time of the lease made, the lessor was not seized of the land, but a stranger, and so the covenant in law broken. But he did not lay any actual entry by force of his lease, nor any ejectment of the stran3 Cr. 214. 2 ger, nor any claiming under him; whereupon it was Le. 104. Syd. objected, that no action of covenant would lie, because 429, 430, 466. Mo. 419. 1 Cr. there was no expulsion. But the whole court was of 5 Co. 17. a. 9 opinion that an action did lie; for the breach of the cov Covenant broken before .eviction. Brnl. 1 R. 23. Br. condition 141. 5. Co. 4. 80. b. Co. 60. b. 61. Dy.328. 1 Roll. enant was, in that the lessor had taken upon him to de520. 1 Le. 324. mise that which he could not; for the word demisi im Yel. 175. 2. Sand. 178, 180. ports a power of letting, as dedi a power of giving. And 2 Cro. 73, 315, 444. Apr. 35. it is not reasonable to enforce the lessee to enter upon the 1 Saund. 322. n. (2.) (1) Implied covenants or covenants in law, and such as the law raises or implies, though not expressed. Thus the word demisi or concessi in a lease for years, imports a covenant on the lessor's part that he has a power to lease, and also for quiet enjoyment during the term; and if the lessee or his assignee be evicted by any one having title, he may maintain an action upon such implied covenant. Cro. Jac. 73, Style v. Hearing. 1 Saund. 322. n. (2). Bac. Abr. Covenant B. Such action may also be maintained against the lessor for his own wrongful entry, but not for the wrongful act of a stranger. Cro. Eliz. 214, Andrew's case. 674, Nokes v. Jones. If there be two lessors, an action founded upon the covenant implied in the word demiserunt, and averring a breach that the lessors had no title, must be brought against both lessors and cannot be maintained against one alone; but if the breach assigned is the subsequent wrongful act of one of the lessors, the action may be brought against him alone. 1 Salk. 137, Coleman v. Sherwin. If tenant for life, or tenant pur auter vie, make a lease for years by the word demisi, and the tenant for life or cestui que vie die within the term land, and so to commit a trespass. But if it were an ex- and the remainderman enter on the termor, an action will not lie upon The assignee of a term may maintain an action upon such implied covenant against the lessor, for an eviction by title paramount, but not against the assignor. 14 Mass. 486, Waldo v. Hall. But an underlease for a less term, reserving rent to the original lessee without reference to the original lease, is the same as an original lease between the parties. Ib. A general implied covenant may be restrained by an express special covenant. Thus the general covenant in a lease implied from the word demisi, is restrained by an express covenant for quiet enjoyment against the lessor and all persons claiming under him. Cro. Eliz. 674, Nokes v. James. 4 Co. 80. S. C. 1 Mod. 113, Deering v. Farrington. 7 Johns. 258, Kent v. Welch. It seems, however, that this applies to warranties of chattels or terms for years, and not to warranties annexed to freeholds and inheritances. Co. Lit. 384. a. In New York the doctrine is laid down as universally applicable that an express covenant will do away the effect of all implied covenants. 2 Caines 192, Frost v. Raymond. 11 Johns. 122, Vanderkarr v. Vanderkarr. In Massachusetts it is said by Sewall C. J. that if a deed contains express covenants of a limited nature, no general covenant of title can be implied. 8 Mass. 201, Sumner v. Williams & al. But in 7 Mass. 69, Gates v. Caldwell, it was held that in a deed containing express covenants there might be also implied covenants not contradictory to, but consistent with the express covenants. So, Co. Lit. 384. a. if a man makes a feoffment by the word dedi, and in the deed warrants the land against J. S. and his heirs, yet dedi is a general warranty during the life of the feoffor. And if a man makes a lease for life rendering rent and adds an express warranty, here the express warranty does not take away the warranty in law. Ib. If a man make a gift in tail or a lease for life reserving rent, or a rentservice by deed, this is a warranty in law, and extends not only against the donor or lessor and his heirs, but also against the assignees of the reversion; and so also the assignee of the lessee for life shall have the benefit of it. Co. Lit. 384. b. The verb dedi, in a feoffment in fee simple implies a warranty, but since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs. 2 Bl. Com. 300. In conveyances in fee simple a warranty is not implied in the word grant, concessi, or any other word except the word, give, dedi. Secus, of a lease for years. Butler's note 332 to Co. Lit. See further, as to the law of implied warranties annexed to freeholds, and inheritances. Co. Lit. 384. a. and note 332. 2 Bl. Com. 300. And the opinion of Kent C. J. in 2 Caines 190, Frost v. Raymond. (2) Vide ante, p. 3, Pincombe v. Rudge, in notis. [12 b] [ 12 c ] Obligation. Trin. 12 Jac. Southampt Pasch. 11 Jac. Bond by under sheriff to the high sheriff. Godb. 212. Winch. Ent. 193. Brownl. 1. R. 63, 65. 1 Roll. 417. Br. Condition NORTON US. SIMMES. The stat. 23, H. 6. c. 9, is a special statute and must be pleaded. A sheriff may appoint a deputy at will, and if he grant a deputation irrevocable, yet he may revoke it. An under sheriff has power, by law, to execute all process, the command of which is not personal to the sheriff; and this power cannot be restrained or abridged, either by covenant on the part of the under sheriff not to execute certain process, or by a proviso in the act of appointment by the sheriff; and such proviso or covenant would be void. A bond taken by the sheriff to save him harmless of his own unlawful acts or omissions, is void; but a bond from his under sheriff to save him harmless of all escapes upon arrests made by the under sheriff is valid. A bond for performance of covenants, some of which are void and some valid at common law, is good as to the valid covenants. Secus, if void as to part, by statute. In debt on bond for performance of covenants, if the defendant pleads an insufficient plea of performance, and the plaintiff in his replication assigns no sufficient breach, he cannot have judgment. In debt on such bond, a general plea of performance is good, though some of the covenants are negative, if the negative covenants are void, as against law. SIR DANIEL NORTON, knight, late sheriff of Hampshire, brought an action upon an obligation of an hundred pounds against Richard Simmes, for performance of cove23 nants, whereof the effect was, that whereas Sir Daniel H. 8. cap. 10. Norton had made Bryan Chamberlaine his under sheriff at his will, the same Chamberlaine by indenture did covenant with the sheriff to discharge and save him harmless of all 2. Mod. 568. escapes of prisoners that should be arrested by him, or any bailiff or officers appointed by him. And another covenant was, that he should not execute any extent, liberate, elegit, or any other execution for any sum above the sum of twenty pounds, before he had first made known to the said sheriff the nature and quality of the said writ; and if any such execution were above twenty pounds, then he would not execute it without the special warrant of the said Sir Daniel Norton the high sheriff. And there were also divers other covenants; and the defendant pleaded, that Chamberlaine the under sheriff had performed all the covenants; whereupon the plaintiff replied, that one White, anno 44 Eliz. had recovered in the Common Pleas two hundred and three pounds debt against one Fielder, |