Tindal's case, 1 N.C. 186, 1 Mart. 186 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 186, 1 Mart. 186

Tindal’s case.

Mich. 2 Car.

DEBT on a bond conditioned to perform covenants. Breach assigned that the bargainor, being obligor, covenanted that he, his assigns, or any other having right to the land, at any time within seven years, at the request and cost of the obligee faceret, cognosceret, et exequeretur vel causare fieri, &c. amnia ulterius factum vel focta, pro meliori assurantia, sit per finem, vel fines, feoffamentum vel recuperationem, or any ways whatever, which by him or his counsel should be advised, and required. The plaintiff shews the advice and request of a fine, by his counsel, and shews a dedimus potestatum to A. and B. to receive the cognizance, and that the obligor being requested, &c. refused.

Jermyn.

He does not shew that there was any writ of covenant depending.

Doderidge, J.

The dedimus potestatem may have been sued before the covenant.

Jones, J.

The covenant is not to levy a fine; but to do such acts as will be required.

Jermyn. He does not shew that the writ was delivered to the commissioners. It appears also by the fine pleaded that it was with warranty; and if I covenant on request to levy a fine, I may refuse to levy it with warranty.

Yet the court was against him, for the reason given by Jones, J. and Doderidge, J. that there is a difference between a covenant cognoscere finem and one levare finem. Godb. 485.