[PDF]The tradesman's lawyer and country-man's friend ..

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Robert E. Gross
CoUeftion

A Memorial to the Founder
^ of the

{Oor/w/ffflio/i


Business Administration Library
Los Angeles


A


H. P. KRAUS, RARE B

16 EAST 46th STREET, NEW YORK, N.

The Tradesman's Lawyer and Count
(Outer edges of first few leaves
Contemp. panelled calf (rubbed).
London, Th.Bever, 1703.

First edition of a handbook or
other legal and business procedui
and farmers who have neither the
law books.

Not in the Kress Library.


/


THE

AND

CoUNTREY-MAN's FrIEND.

I . Direfting them m Concraas, Bareains ant! Aw^,ercby chcy „a, iearn - W.y 'an/Slat .tf^nT^-'
nouflyavcd beH,g ove,-.r«ched in their Bargain . Tc T

Commons, and tcvrraJ o:h.:r ^'uQnceJ^ c r.nl P '

uutrellfs, c^.. Aha many other p,atters relating to Landlord
and Tenant. 7 Cleaning difcharging and erSing of a q


Collected from the .^nt lent and Modernla-^ n.n\, j ^
h federal Authorities .t J Tz, ? '^' «^d cov^^rmed

fathers. ^^^ ' "^ '^'' ^'^^^ ^' '0 tyadefmsn and


in Tem^Ie-Bar^ 1703 '^^ ^'^^ ^'^d Star witii«


T HE

PREFACE


TO THE


READER


THE Law being appointed to order the
peaceable Government of the Kingdom^
and to execute Juftice among the People^
with the one Hand punilheth fuch as offend, and
with the other weigheth to every Man his due ;
and to that end hath provided v^holefom Ordinan-
ces and Statutes, as well to teach the People ther-
Duty, as thereby to preferve them in their Live?,
Liberties and Eftates ; hath alfo reported the frarc
of mod Cafes for many Ages pall, with the Con-
fequents and Judgments thereupon^ to be to thxin
for Rules and Guides, vs/hQV&hy to iieer their courfe
in the wide Sea of Trade and Bufinefs one among'
another^ upon the later of which it is now iv\
purpofe to treat,- and it is therefore as well nece:-
lary for felf prefervation as beneficial to the Eilate
of all Men, to learn and obferve as much as may
be what the Law diredeth in every particu-
lar. As for Perfons of a higher Rank they h.^'.^
both Learning and Leifure to read the Law • buc

A 2 lor


The Preface.

for the Commonalty and ordinary Tradefmen moft
are wanting in the firft, m^ny cannot obtain the
latter^ and fome are ftrangers to both^ whereby
feveral Inconveniences happen to them, and they
are often put upon by ci^nninPi^Men,". wl^^con-
trive to pi'ey; upon their • ^gnorStice : IJpon Confi-
deration oFvvhich, and for that (like' this) Icarce
any thing hitherto hath been compofcd, brief^
compact, and fuitable to the Leafure and Capacity
of thofe for whom it is intended, I mean the
Tradefmen and Commonalty (though ^ with Sub-
miffion far greater and more worthy are at li'rge)
I thought it net mif-fpent time to fit up thefe few
Sheets for the Ufe of fuch as fhall alio think it
worth their while to perufe them,* whereto I have
added feveral Books and Authorities to wairanc
thefe Rules, not doubting but fome may examine
them as well as read them, to vi^hofe judicious Cor-
redlion I fubmit my felf and work.

Now if any Perfon fhall raife an Objedion, and
fay, that here are feveral little caufes of Action
difcovered, which had better been kept private,
becaufe litigious Perfohs will make bad ufe of them
to the difl:urbance of their Neighbours : I muft an-
fwer, they are no other than what formerly have
been pubiifhed for general Obfervation/ and that
by learned Lawyers ,• yet I will further add, that
De minimis 7ion curat LeXy the Lav/ takes no notice
of trifling matters *, alfo to ground Adions of the
Cafe for fuppofed Wrongs or Injuries, there muft
appear to be in the Cafe fome Malice in the Party
that doth the VVrong, and fome damage to the Par-
ty :o whom the Wrong is done j for if there be

■ • ' Malice


The Treface.

Malice and no damage done by it^ there can be
nothing recovered, ^^}^^ Adion will be vain and
to no purpofe ,• and if there be Damage and no
Malice, it is fcarcely punilbable by Law; yet the
degree of Malice may aggravate the Wrong and
increafe the Damage. But in all Cafes where there
is both apparent Damage and Malice or Injury,
an Action may well be brought, which I leave to
(every Mans difcretion, earneftly defiring that all
Men would rather ftudy Peace and good Will one
towards another, th^n unneceflarily to trouble the
Law and Lawyers, which dired them to better
things, i/;2s. the ending of Strife and Gontroverfy ,•
for which purpofe I have alfo herein fet down the
chief Heads anxl matters relating to Arbitrement
and Awards, a Remedy provided by the Law for
the fpeedy ending of Differences amongft Neigh-
bours j by the perufal whereof I hope the Reader
will receive a good Satisfaction, and approve of
the Endeavours of him who defires to be an In-
ftrumcnt of Peace and Moderation amongft all
Men.

FdsUx c^mm faciunt aliena fmada cautum*


rh(


The Contents of this Treatifa.

CHAP. I. Concerning ContraBtyTromifes and Agrte^
ntents^ and of ABions to he brought thereupon, p. i.

Chap. 2. Concerning Contra^s^ &€. upon buying and
fellings fuffofed to he immediately executed, &Ci p.y.

Chap. 3. Concerning Executory ContraSfs, in buying,
&:c. having feme reference to another time or thing to
he done by one of the Parties 1 1

Chap. 4. Hoov 7ve may be charged by others ContraEfs in
buying, &c, as of Wife, Servant, &;c. I ^

Chap. 5*. Of the Sale of one and the fame twice by the firfi
Owner, the one immediately after the other, and what
fort of Sale is requijtte to alter the property of Goods, SiCC,
though they have been fioln, 2 1

Chap. 6. Offuch Bargains in buying^ &C, of are faid
to be Conditional^ having reference to fame other
Terfon, or depend upon the like or dijlike of one of the
Far ties 29

Chap. 7. How the words of the Parries contraBing fhall
he taken and expounded 52

Chap. 8. Of Deceit and Warranty in buying and felling 34

Chap. 9. Concerning ether ContraBs, Prc?nijes, Bargains
and Agreements which are not fo nearly related to buy-
htg and felling, and of their Confiderations and Induce-
ments, &:c. 4^

Chap. I c. HovJ one Vromife may be the Confideration of
another Promifei and cf promifes Conditional and Re^
■ciprocal • Si

Chap.


The Content^

Chap. 1 1 • f^oiv a Tromife may he madt to another Terfon
for my Ufe upon a good Confideratiofty &c. and con»
cernlng Alkwance of time for ferforming thereof when
no time is exfrejiy af pointed 64.

Chap. 12. The fum of the whole aforegoingy andoffuch
Terjons as may fue or be fued in thefe Anions 70

Chap. 15* About a Demand or Re^uefi and Notice to
he given whereby Anions may arife upon ContraBsy

&C. 91

Chap. 14. Concerning borrowings lending^ and refioring

of Goods and Chattels 99

Chap* ly. Concerning Goods pledged and pawnd 106
Chap. 16. Concerning feveral other Cafes adjudged rela^^

lating to Tradejmen^ &c. 1 1 1

Chap. 1 7. Other Cafes relating to Farmers^ &c. as t9

fiofping of JVaySy Water-ccurfes^ Lights^ Commons y

Cufioms, and other NufanceSy^C. from 1 21 to I'i^^
Chap. 1 8. Concerning fcandalcus words purpojely fpoken

to ahufe and prejudice a Tradcfman^ &c. from i 34 fp

Chap. 19. Concerning Leafes, Mortgages ^ Corn f own y
Waficy Di/lrefsy Refcous, Replevin and Avowry^ alfo
feveral other matters between Landlord and Tenant y
with a Copy of the late AB for enabling the fale of
Goods diftrainedfor Renty in cafe the Rent be not paid
in a reajonable time^ &:c, from 15*4 to 270

Chap. 20. Shewing when a Tromife or Contra^ , and
an ABion thereforCy or cthtrwife may be faid to be
gone or difcharged^ and therein concerning Executors
and Admlnifirators 270^ 271 &C.

Concerning Arbitrenmnt ^ Award and Umpirage^ to put
an end to Controverjy betwixt Neighboursy with the
Circumjlancefy &c. incident thereunto 298, 29956CC.

Several


Tlie Contents.'

StnjeralTrefidents or Forms of SuhmiJJlon hy Bond and

Condition y &C. 1508, 509, &c.

Some forms and Prefidents of Awards and Umpirage

319. ^20^ &c.
fFhat things are chiefly to be regarded in Awards y &c.

from ^23
Chap. 2 1 . Some Statute Law concerning Tradefmen La-
hourersy Artificers^ &C. and therein rf Aliens ^ Deni-
^ens^ Apprentices, Servants^ &c. with the General
Statute of 5" Eliz.- cap. 4. Alfo concerning Coachmen y
Carriers^ Highways mending, taking of Farms, keep"
ing of Sheepi Horfes, Mares, making of Mauky pre-
fer'ving of Woods and Trees ; and fome other things re-
lating to WeightSy Meafures and Wool, &;c. With the
Kates fettled for Hackney Coachmen and Watermen

from :5J6 to the end.


THB


TH E

T^'adefman's Lawyer,

AND

CountiT-man'a: IFrienD» i;

CHAP. I

Ailion and Contrails defined.

THE Remedy which the Law
gives to every Man^ according
to his particular Cafe and Da-
mage is by an A<^ion.
An A6lion therefore is a lawful de- ^^y^„ ^^^^^
mand of Right^ or 'tis a complaint of an
Injury received, and is faid to be either

Real,
Perfonalj
Or A4ixt.

B I. R$ali


I. Real,' As when a Man claimeth
Title to have a Freehold in Lands, Te-
nements, Rents, Commons, and the
like,- either to hini and his Heirs for
ever, or to him and his Heirs, Males or
Females, or for term of his Life, either
of his own Pofleffion, or of die Seifin
and Poffeffion of his Anceftor. BraH,
U. g. ca, 5. w. 3.

x. Perfonal^ Whenhe claimeth Debt,
or other Goods and Chattels, or Da-
mages for them,, or Damages for wrong
done to his Perfon, and this is fome-
times popular and given to any Man
that will fue, as upon a Statute, or elfe
particular, to one or more in certain*
£ra^. U. 2 . ca, ^ . ^, 1,

3. Mixt,- As when he claimeth not
only a Real >thing, but feei^th alfo Da-
mages for the wrong fuftained. Bra^.
li, 3. cai 3. Ku. 5'.

Many more are the Divifions made
of Adions in general. As

r Criminal,
Ad:ions4 Civil,

V. Entire, &c.
Which it is not here my purpofe to define.

But the A6lion of which I now intend
to treat, is that whichis perfonal, and
arifeth


From


^ Contrads_,
vBaigaius,
FromsSales^ and

/Agreements concerning
^ Chatteisj and the like.

A Contract is an Agreement between c^^^^^.^^ 3^^^^^
two or more^ either about fomething to
be done, (whereby bothParties are bound
each to other, (or one to the other_, or
more ftridly for the doing or having
one thing for another^ but more exad<"
ly for the buying and felling of Goods
or Chattels^ whereby the Property of
them are altered.

There are alfo faid to be feveral kinds
of Contrads^,
Real,
.Perfonal^
. JExprefs,
^^^ Implied,
'Abfolute,
Conditionals

1 . Real ,• As when it is about Land^ ReaL
or fome fuch Real thing.

2. Perfonal • As where it is sibout p^r/^Ti^/,
payment of Money, delivery of Goods,

or the like, in Perfonai things.

5. Exprefs; As where a Man agrees i:;^;'^^;'/.
to give another lo /. for a Horfe.

4. Implied (that is by Law) the Law implied,
operating where it doth not arife from
B z the


the exprefs Agreement of the Parties^
(as for Example) If an Hoftler give my
Horfe meat, or a Taylor makes me a
Garment; the Law implies a Contrad
that they fhall be paid^ the one for his
Corn, the other for his Work, &c.
'oiute. ^. Abfolute; That is^ when it hath

no Reference to another thing, as in
the giving ten Pounds for a Horfe, &c.
Conditional (5^) Conditional , that is^ when it hath

reference to fomething elfe ,• as where
I agree that I will give ten Pounds, or
fomuch for a Horfe, if my Brother^ or
if my Neighbour fhall fay the Horfe is
worth fo much.
ContraB by And further^ A Contrad is fometimes
Toriting, or hy made by writing, and fometimes by
ypordoj Mouth, ^ord of Mouth. But 'tis chiefly my
purpofe to fpeak to the later^ yet ob-
ferve, That although a Contrad: be by
writing, and that writing be not fealed
and delivered, it operates no more than
that which is by word of Mouth, and
therefore all one. But if it be put in
v/riting, and fealed and delivered, it
thereby becomes a Deed, and is under
another Confideration, and in many
Cafes differs from a Contrad by word
of Mouth.

Amongfl: thefe Contrads fome are
more publick, inftant, and executed ;
as where the price and confideration is
paid and performed, and the thing

bought


Coimttp-man'0 jfrieno* 5'

bought delivered_j c^c. Tlowd. 130, 140^
508- Finch ley 451. '

Others are more private^ deliberate
and executory^ as where all or part of
the Thing agreed upon is to come : As
that if you mall build me a Houfe^ or
bring me in fo much Corn by fuch a
day ; that then I ihail pay you fo much
Money^ or the like. Djer^o. 356.

And in all Contrads, Bargains, Sales, Q"'"^ P'^o ^^'
Promifes and Agreements there ought
to be ^id for ^0 ; a Recompence or
Confideration prefently given, or pro-
mifed at leaft at a day exprefly fix'd,
for, or in lieu of the thing to be done
or delivered, othervvife it is nothing but
Communication and Difcourfe, a bars
Bargain void in Law, and no A6tion
will lye upon it. Noys Max. p, 87.

Yet the want of this Confideration or
prefent Promife is often remedied by the
Law, efpecially in the Cafe of buying
and felling.

For as the Contra<5t is faid to be ex-
prefs and implied, fo alfo is the Con-
fideration and Promife.

Therefore Confideration exprefs, is
where I promife you ten Pound in con-
fideration, that you will build me a
Houfe.

Implied is, Where at my inftance,

you have done work for me, the Law^

implies. That in confideration thereof

B 2 I


6 /C6c€^i;acefmau'0Latopct, ano

Ifhall pay you. Nay farthei,, in that
Cafe the Lav/ will imply and fay^ That
I did tKerefore promife to pay you.

So that by help of. the Law in fome
cafes there is exprefs and implied Con-
Xntplmtion ff trad^ exprefs and implied Confiderati-
the law. on^ and exprefs and implied Promife,
the Law making up an exprefs or im-
plied Contrad between the Parties, ac-
' cordingly as it finds either an exprefs or
implied Gonfideration, and where there
is an exprefs Gonfideration^ there is
ufually an exprefs Promife. "But the
exprefs Promife is made by the Party
contracting, and in default thereof the
Law in fome cafes implies one.

By an exprefs promife the Party re-
covers the things or Money promifed,
by an implied one^ as much as he de-
ferves, or the thing or Goods were
'^ worth,- and this he is as much bound
unto as if he had promifed to do it, as
i3 ^fter fet forth. Do5t, & Stud. 104/


CHAP.


Countcp-man'sffcicnir.


c H A p. 11.

Of Contrails^ &c. fuppofed to Ic
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