a lease for life and after the Lord and the tenant inter-marry and have issue betwéen them a son and the Feme dies and after the father dies the son within age here the executors shall not have the wardship by reason of the Seigniory for the father hath the wardship of his eldest son jure naturae which is inseparable and cannot be waved and he cannot have the wardship of his son by the death of his wife in respect of his Seigniory for that was inseparably vested in him as father immediatly upon the birth of the son jure naturae And Littleton saith that the father during his life shall have the marriage of his son and heir apparent and not the Lord c. 3. Co. l. 6. 22. Ambrosia Gorges Case 10 Viscount Bindon being seised of land in capite had issue The like Douglas his daughter and heir who being married to Sir Arthur Gorge had issue by him Ambrosia a daughter Douglas dies and likewise Viscount Bindon Ambrosia being under age afterwards Sir Arthur Gorge takes another wife and hath Issue a son Ambrosia remaining still under age In this case Ambrosia was not in ward during the time she remained heir apparent to her father but after her father had a son so that she remained no longer heire apparent then had Queen Eliz. the Wardship both of her body and Lands c. Allegiance â—â—ue by nature 11 Faith Co. l. 7. Calv. Case fol. 13. b. obedience and ligeance are one to the Soveraigne by the Law of Nature which cannot be changed or taken away for albeit Iudiciall and Municipall Lawes have inflicted and imposed in several places and at several times divers and several punishments and penalties for breach or not observance of the Law of Nature for that Law onely consisting in commanding or prohibiting without any certaine punishment or penaltie yet the very Law of Nature it self could never be altered or changed And therefore it is certainly true that Jura naturalia sunt immutabilia And here with agréeth Bracton lib. 1. cap. 5. and Doct. and Student cap. 5. 6. For example 33. H. b. 55. 6. If a man hath a Ward by reason of a Seigniory and is out-lawed he forfeiteth the wardship to the King but if a man hath the wardship of his owne Sonne or Daughter which is his heire apparent and then is out-lawed he cannot forfeit that wardship because nature hath annexed it to the person of the Father as it appeareth in 33 H. 6. 55. b. So likewise the Faith Obedience and Ligeance which we owe to our Soveraigne cannot be taken away For bonus Rex nihil a bono patre differt patria dicitur à patre quia habet communem patrem qui est pater patriae In the same manner Maris foeminae conjunctio est de jure naturae 35 H. 6. 57. as Bracton and Doct. Stud. in the places before quoted do hold And therefore if he that is attainted of treason or felonie be slaine by one that hath no authoritie or executed by one that hath authoritie but pursueth not his Warrant In this Case 21 E. 3. 17. b. the eldest sonne can have no appeale for he must bring his appeale as heire which priviledge being ex provisione hominis he loseth by the attainder of his Father Howbeit his Wife if he have any shall have an appeale because she is to have her appeale as Wife which she continueth to be notwithstanding the attainder for that maris foeminae conjunctio is de jure naturae And therefore it being intended to be of true and law-full matrimonie is indissoluble and this is proved by the booke in 35 H. 6. fol. 57. So if there be Mother and Daughter and the Daughter is attainted of felonie now can not she be heire to her Mother for the cause afore said yet after her attainder if she kill her Mother this is parricide and petite treason For still she remaineth her Daughter because that is of nature If a man be attainted of felonie or treason 4 E. 4. 35 H. 6. 57. 2. Ass Pl. 3. he hath lost the Kings Legal protection for he is thereby utterly disabled to sue any Action reall or personal which is a greater disability then an alien in league hath and yet such a Parson so attainted hath not lost that protection which by the Law of Nature is given to the King for that is indelebilis immutabilis and therefore the King may protect and pardon him and if any man kill him without warrant albeit attainted as afore-said he shall be punished by Law as a Man-slayer By the Statute of the 25 E. 3. cap. 22. a man attainted in a Praemunire is by expresse words out of the Kings protection generally and yet this extendeth onely to legal protection as it appeareth by Litt. fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him and therefore notwithstanding that Statute the King may protect and pardon him And although by that Statute it was farther enacted that it should be done with him as with an enemie by which words any man might have slaine such a person as it is holden in 24 H. 8. Coron Br. 197. until the Statute made in 5 E. cap. 1. Yet the King might protect and pardon him A man out-lawed is out of the benefit of the Municipal Law for so saith Fitz. N. B. 161. Ut legatus est quasi extra legem positus And Bracton l. 3. tract 2. cap. 11. saith that caput gerit lupinum c. yet is he not out either of his natural ligeance or of the Kings natural protection for neither of them is tied to municipal lawes but is due by the law of Nature which was long before any judicial or municipal lawes And therefore if a man were out-lawed for felonie yet was he within the Kings natural protection for no man but the Sheriffe could execute him as it is adjudged in 2. Ass Pl. 3. Every subject is by his natural ligeance bound to obey and serve his Soveraigne c. It is enacted by the Parliament in 23 H. 6. cap. 8. that no man should serve the King as Sheriffe of any County above one yeare and that notwithstanding any clause of non obstante to the contrary that is to say notwithstanding that the King should expressy dispence with the said Statute howbeit it is agréed in 2 H. 7. that against the expresse purview of that Act the King may by a special non obstante dispence with that Act for that the Act could not barre the King of the service of his subject which the law of nature did give unto him One of the Chiefest grounds according to which the Case of the post-nati was resolved in 6 Jac. was because obedience and ligeance of the subject to the Soveraigne is due by the law of Nature for if they be due by that law
action brought becomes no deed either by rasure addition or other alteration or by breaking the seale c. In this case although it were once a déed yet the Defendant may safely plead Non est factum for without question at the time of the plea which is in the present tense it was not his déed 36 H. 8. Dyer 59. in an action of Debt upon an obligation against Hawood the Defendant pleads non est factum and before the day of apparance of the Inquest the Mice had eaten the Label unto which the seale was fixed by the negligence of the Clerke in whose custody it was Here the Iustices charged the Iurors that if they found the déed to be déed of the Defendant at the time of the plea pleaded they should then give a special verdict which they did accordingly Co. l. 6 15. a. 1. Trepors case 9 If A. Tenant for life and B. in remainder in fée Lease and confirmation joyne in a lease to C. Immediately after the delivery of the déed it is the lease of A. during his life and the confirmation of B. and after the death of A. it is the lease of B. and the confirmation of A. according to the opinion of Dyer and Brown Mich. 6 7 Eliz. fol. 234 235. Co. l. 6. 22. Ambrosia Gorges case 10 If a man marry an Inheritrix of lands holden of the King in Capite and hath issue by her a Daughter and afterwards the Feme die A daughter iâ— ward during the life of her father the Daughter shall not be in Ward because she is yet heire apparant to her Father But if the Father take another Wife and hath issue a Son then shall the Daughter be in ward to the King because the Son is now his heire apparent and not the Daughter And no heire apparent shall be in ward during the life of the Father Co. l. 7. 18. a. Calvins case 11 The time of the birth of a man or woman is chiefly to be considered to make them a Subject borne or not Ante-nati Post-nati and is as it were of the essence of a Subject born For a man cannot be a Subject to the King of England unlesse at the time of his birth he was under the ligeance and obedience of the King of England albeit the Kingdome of the King under whose ligeance he was borne do afterwards descend to the King of England And this is the reason that Ante-nati in Scotland for that at the time of their birth they were under the ligeance and obedience of another King are aliens borne in respect of the time of their birth c. â—â—ttle in â—und tender 〈◊〉 late 12 Tender of the rent upon the land before the Distresse Co. l. 8. 147. 2. 4. The 6 Carpenters case makes the Distresse tortious tender after the Distresse and before the imparkment makes the detainer but not the taking tortious tender after the imparkment makes neither the one nor the other tortious for then it comes too late in regard the cause is then put to the tryall of the Law to be there determined 13 Distinguenda sunt tempora concordabis leges Co. l. 9. 16. b. Anna Bedingfeilds case â—state to the â—st issue in â—ile 14 Thomas Bowles in consideration of marriage with Anne Hide Co. lib. 11. 80. a. 4. Lewes Bowles case covenants to stand seised of the Mannor of D. to the use of himselfe and Anne for their lives and after to their first issue male and the heires male of his body and after to the heirs male of the bodies of Thomas and Anne c. In this case before issue had Thomas and Anne were seised of an estate taile executed sub modo viz. untill issue and then by operation of Law the estates were divided viz. Thomas and Anne became Tenants for life the remainder in taile to the issue the remainder to the heirs male of Thomas and Anne c. â—landerous â—ords 15 A man brings an action upon the Case for these slanderous words Thou art an arrant Knave a Cosener a Traitor Co. l. 10. 131. a. 1. Ja. Osborns case being all spoken together at one and the same time and upon not guilty pleaded the Iurors finde for the Plaintiff and assesse damages generally for all the words herein they did well for all those words taken together make but one scandal and albeit no action lieth for these words Thou art an arrant Knave a Cosener spoken apart by themselves yet being spoken at one and the same time and coupled with the other words and a Traitor which are indéed actionable they aggravate them and make them worse Howbeit if at one time the Defendant calls the Plaintiff Traitor and at another time he calls him arrant Knave and Cosener and the Plaintiff brings an action upon the Case and alleadgeth the said several words spoken at several times as several causes of action theâ—e if upon not guilty pleaded the Iurors assesse damages intirely judgement shall be arrested for all for he grounds his action upon two several scandals whereas one of them is not actionable c. 〈◊〉 perquisite â—y the purâ—hase of a â—illein 16 If a man hath a Villein in right of his wife Co. Inst pars 124. b. 1. and the Villein purchase land he shall have that perquisite in her right but if the Villeine purchase it after issue had then the Baron shall have the perquisite to him and his heires because by the issue he is entitled to be Tenant by the Courtesie in his own right 49 Quod prius est tempore potius est jure Vide Max. 62. Pl. 10. 19. â—emitter 1 One of the reasons of a Remitter is Co. Inst pars 1 347. b. 3. because that title which is first and more ancient is alwayes more sure and worthy And therefore many books in stead of Remitter say that he is En son primer estate or en son melior droit or en son melior estate c. or the like For Quod prius est verius est quod prius est tempore potius est jure c. Confirmation â—st best 2 The Lessée for life made a lease for thirty years Co. ib. 296. a. 3. and after the Lessor and Lessée for life made a lease for 60 years to another which lease for sixty yeares the Lessor did first confirme and after the Lessor confirmed the lease for thirty years and after the Tenant for life died within the thirty yeares In this case the lease for thirty yeares was determined by the death of the Tenant for life and the Lessée for sixty yeares might enter for that albeit the lease for sixty yeares was the later in time yet was it of greater force in Law because the Lessor who had power to confirm which of them he would did first confirm the second lease Inter Unwel and Lodge
of good pleading must be observed Co. Inst pars 1. 303. a. 2. which being inverted great prejudice may grow to the party tending to the subversion of Law Ordine placitandi servato servatur jus c. And therefore first in good order of Pleading a man must plead to the jurisdiction of the Court Secondly to the person and therein first to the person of the Plaintiffe and then to the person of the Defendant Thirdly to the Court Fourthly to the Writ Fifthly to the Action c. which order and form of Pleading you shall read in the ancient Authors agréeable to the Law at this day and if the Defendant misorder any of these he loseth the benefit of the former Again the Count must be agréeable and conform to the Writ the Bar to the Count c. and the Iudgment to the Count for none of them must be narrower or broader then the other c. 4 If the King make a Lease for years rendring Rent Co. l. 4. 13. a. 3. in Burroughs Case with condition to be void upon non-payment of the Rent Re-entry giâ—en to the King without demand the King shall take advantage of that condition without any demand For so long as the Reversion and Rent continue in the King the Law dispenseth with the demand as a thing un-decent it being against the dignity of the King to wait upon his subject or to demand any thing of him It is otherwise if the King grant over the Reversion for his grantée shall not take advantage of the Condition without demand of the Rent But in the other Case the Law which alwayes requireth that decorum and conveniencie be observed appoints the subject to attend upon his Soveraign and in that Case to perform the first Act although it be in the case of a Condition which trencheth to the destruction of his Estate Howbeit this is onely a personal Prerogative annexed to the person of the King for order and decencies sake and not in respect of the nature and quality of the Rent c. â—o demand 〈◊〉 the value of â—arriage 5 One Of the reasons which the Lord Cook addes in the Lord Darcies Case Co. lib. 6. 71. b. 2. in the Lord Darcies Case why the fingle value of the marriage of a Ward in Knight-service should be due to the Lord without demand is this If the Common Law saith he would have inforced the Lord to have made tender to his word c. it would also have appointed all necessary circumstances for the performance of such a tender as a certain place c. where it should be done and would not have left the Lord which is the superiour to finde out the Ward which is the inferiour and who may if he will take advantage of his own shifts when there can be no laches at all in the Lord c. 6 Amongst other reasons produced to prove None but of the houshold shall sue in the Marshalâ—â— that in Suits prosecuted in the Marshalsie Co. l. 10. 73. b. 2. in the Case of the Marshalsie one of the parties at least ought to be of the Kings houshold this is one because saith the Book it would not be comely that a Car-man or other Mechanical person should at his pleasure sue another in that Court and upon that occasion take liberty to appear in Aula Regis where that Court was originally kept absque vestimentis aulicis for those that appear in Court use to wear garments suitable to that place And therefore it is recorded by Luke the Evangelist cap. 7. vers 25. Coepit de Johanne dicere ad turbam c. Quid existis visuri hominem mollibus vestibus amictum Ecce qui vestitu magnifico utuntur c. sunt in Palatiis Regis c. And the Common Law regards conveniency and altogether dis-allowes indecorum and every thing done contra bonos more 's 77 Negatio Conclusionis est error in Lege Co. l. 10. a. 4. in Priddle and Nappers Case 1 In Attachment upon a Prohibition the Plaintiffe counts against A. proprietary of Tithes Lands in the Priors handâ— not tithable that heretofore the Prior of Montecute was seised of twenty Acres of Land c. before and at the time of the dissolution and held those Acres and also the Rectory simul semel c. Ratione cujus the Prior held the said Lands discharged of Tithes The Defendant conveys title to the Land c Absque hoc that the Prior held them discharged of Tithes c. Here the plea of the Defendant pro consultatione habenda for he is in a manner an Actor was insufficient because he traverseth a thing not traversable For the prescription of the unity ought to have béen traversed and not the Conclusion viz. Ratione cujus because as in Logick the conclusion of a Syllogisme cannot be denied but either the major or minor Proposition so neither in Law which is the perfection of Reason c. Co. ibid. 2 In a Praecipe Ancient Demesne one that pleads that the Mannor of Dale is ancient Demesne and that the Land in demand is parcel of the Mannor and so ancient Demesne there the Demandant cannot say that the Land in demand is not ancient Demesne because that is the Conclusion upon the two first preceding Propositions viz. 1. That the Mannor is ancient Demesne 2. That the Land in demand is parcel of the Mannor for sequitur conclusio ex praemissis and therefore it cannot be denied and with this agrées 41. E. 3. 22. 48. E. 3. 11. and many other Books 78 The Law respecteth the Bonds of Nature Co. Inst p. 1. 78. a. 2. 1 If before the Statutes of 32 34 H. 8. Wardship the father had infeoffed any of his younger sons or others for the making of his wife a Ioynture or for the advancement of his daughters or for the payment of his debts Co. l. 6. 76. a. 3. in Sir George Cursors Case and after had enfeoffed and conveyed the Land to his heir and had died his heir within age his heir should not have béen in ward neither was it Collusion upon the Statute of Marlbr cap. 6 c. because he was bound by the law of Nature and Nations to provide for them but now by force of those Statutes he shall be in ward for his body and for a third part of the Land c. No wardship â—uring the faâ—hers life 2 A. hath issue B. a daughter and his heir apparent who being married to C. hath issue by him D a son B. dies Litt. §. 114. Co. Inst ibid. a. 3 c. and A. that holds Land by Knights-service dies seised and the Land descends to D as heir unto A. and within age In this Case the Lord shall have the wardship of the Land but not the wardship of the hody of the heir for none shall be in ward for his body to
â—ings in Aâ—â—n 97 If the King grant his owne recognisance the suit shall be in the name of the grantée but if he grant an obligation forfeited for outlawrie Dier 1. 7. P. 4 H. 8. the suit shall be in the Kings name â—e like Fuit dit 98 Bruerton who was attained 28 H. 8. had certaine obligations Dier 30. b. 208 28 H. 8. which were forfeited to the King and the King grants them to his Wife without any words that it should be lawfull for the grantée to bring Actions thereupon yet the Feme brings an Information in her owne name for the said obligations And upon demurrer thereupon it was adjudged that the Action was well brought because the King onely may grant a thing in Action Finch as Ley French edition Fol. 22. 99 The King may licence things prohibited by Statute The Kings â—cence as to coyn money which is made Felony by the Statute and before that it was lawfull for any one to do it because it is but malum prohibitum But malum in se as to levie a Nusance in the high way the King cannot licence a man to do but after it is done he may pardon it Howbeit if the Statute saith that his licence shall be void there the licence shall have a clause of non obstante 2 H. 7. grants 73. viz. shall say Notwithstanding any Statute to the contrary otherwise it is not good as the Statute of 23 H. 6. 8. ordaines that the Kings grant to be Sheriffe of any County longer then a yeare shall be void notwithstanding that his Patent shall have a Clause of Non obstante yet with a Clause of Non obstante such Patent shall be good Dier 52. 1. 33 H. 8. but not without that Clause Howbeit neither without such a Clause nor with it can he dispence with a Statute before it be made And therefore a licence to carie Bell-mettal out of the Realme notwithstanding any Statute made or to be made is not good if a Statute be made after to prohibit it for he cannot dispence with an Act of Parliament before it be made Howbeit he may in things wherein he hath an inheritance or interest as to grant to own to be discharged of taxes and subsidies to be granted this is good 11 H. 7. 11. b. Finch ibid. 100 Statutes of restraint bind not the King Knâ—ght not bound by Sâ—â— unlesse they concerne the Common-Wealth or he or the thing they concerne be specially named as the Statute of West 2. of entailes binds the King because it concernes the whole Com. Wealth so likewise the Statute of 1 H. 5. cap. 5. That in Indictments addition must be given to the party indicted bindeth the King because Indictments are specially named But if by Statute one be attainted and his Lands forfeit with a proviso that of such Lands as he was seised to the use of any other Cesty que use should enter upon him for it is not for the Common Wealth neither yet is the King named therien Co. l. 4. 35. b. 1. in Bozouns Case 101 When the king by the Common Law cannot make a grant Non obstante there a non obstante of that Common Law will not against the reason of the Common Law make the grant good but when the king may lawfully by the Common Law make a grant and the Common Law onely requires that he be so instructed that he may not be deceived there a non obstante supplying it stands with the reason of the Common Law and shall make the grant of the good And therefore if the King grant a protection in a Quare Impedit or an Assise with a non obstante of any Law to the contrarie such grant is void for by the Common Law a Protection lyeth not in either of those Cases for the damage that may happen to the Plaintife by such great delay And therefore in such Case a non obstante shall not availe where the King by the Common Law cannot grant the thing as it was Ruled in 39. H. 63. 9. Advowson Dier 226. 35. 6 El. 102 The King by his prerogative may make a Sheriffe without the usuall assembly and Election in the Exchequer Dier 288. 54 12 El. 103 The King may demise a Mannor Qâ— Imp. except the Courts and perquisites so cannot a Common Person Dier 351. 22. 18 El. 104 Some books are that by an usurpation the King shall be out of possession and put to his writ of right of Advowson But 35 H. 8. it is there that the King may gaine possession by presentment and plenartie by 6 moneths and that against an infant who is a purchasor Vide Fitzh Tit. Qu. Impedit 151. 8 E. 3. and M. 16 Trin. 38 E. 3. Stat. Westm 2. c. 5. Hob. 126. 105 In a Quare Impedit if the title appeare to the Court to be in the King albeit he be no party to the suite yet they ought to award a writ to the Bishop in his behalfe The Chancellor c. of Camb. against Walgrave 106 The Kings Certificate under his signet Manual was received as evidence in Chancery without exception Hob. 213. 3. in the Case of the Lord Aubignye against the Lord Clifton 82 Likewise the Law giveth greater priviledges to men then to Women Wardship â—ody Father â—ot Mother 1 A. Tenant of Land holden by Knight-service Litt. §. 114. Co. Inst p. 1. 84. a. 3. hath issue B. a Daughter and his heire apparent who being married to C. hath issue and dies A. dies seised and the Land descends to the issue within age In this Case the Lord shall have a wardship of the Land but not the wardship of the body of the heire for none shall be in ward for his body to any Lord during his fathers life It is otherwise where the Father dies living the Mother when the Land holden by Knight-service descends to the issue on the part of the Father because the Law in that Case confides more in and giveth more respect unto the Father then the Mother c. Villein 2 If a Villein taketh a frée woman to Wife Litt §. 187. and have issue betwéen them the issues shall be Villeins but if a Niefe taketh a Frée-man to her Husband their issue shall be Frée Feme no witâ—esse 3 In some Cases Women are by Law wholly excluded to beare testimonie as to prove a man to be a Villein Co. Inst p. 1. 6. b. 4. Mulieres ad probationem status hominis admitti non debent Fleta l. 2. cap. 44. Fitz. title Villein 32. 36 37. 83 The Law tendreth the weaknesse and debility of other persons as those out of the Realme in Prison Femes covert and other Women also Likewise Infants Lunatiques Ideots and such as have other imperfections â—ortion 1 If Coperceners make partition at full age and un-married Co.
Inheritance coupled with such an authority may surrender by Attorney Also there is a diversity betwéen a general absolute power and authority as Owner of the Land as aforesaid and a particular power or authority by him that hath but a particular interest to make Leases for lives or years And thereforr if A be tenant for life the remainder in tail c. And A. hath power to make Leases for 21 years rendring the ancient rent c. he cannot make a lease by a letter of Attorney by force of his power because he hath but a particular power which is personal to himself alone as it was resolved in the Lady Greshams Case 24 Eliz. per Wray and Anderson then Iustices of Assise in Suffolk â—wer to make â—ases not in â—eir own â—me 14 When any hath authority as Attourney to do an Act Co. ib. 79. b 4. he ought to do it in the name of him that gives him such authority for he appoints the Attorney to be in his place and to represent his person and therefore the Attorney cannot do it in his own name nor as his proper act but in the name and as the act of him but gives him the Authority And what he doth otherwise is void So if Attorneys have power by writing to make leases by Indenture for years c. they cannot make the Indentures in their own name but in the name of him that gave them warrant c. 〈◊〉 Office of â—arshalsie 15 The office of Marshal of the Marshalsie cannot be granted for years because it is an Office of great trust annexed to the person Co. l. 9. 96. b 4. in Sir George Reynols Case and concerns the administration of Iustice and the life of the Law which is to kéep such as are in Execution in salva arcta custodia to the end they might the sooner pay their debts c. And this trust is individual and personal so that it shall not be extended to Executors or Administrators for the Law will not repose confidence in matters concerning the administration of Iustice in persons unknown 〈◊〉 an Office â— survivor 16 If an Office of trust be granted to two pro termino vitae suarum without more by the death of one of them he grant shall be void Co. l. 11. 3. b. 4. in Auditors Curles Case for it being an Office of trust no survivor can be thereof In like manner there can be no survivor in the Office of the two Auditors of the Court of Wards for the Statute of 32 H. which erects that Court provides that there shall be two persons c. who shall have a Iudicial voice and therefore in that case the King cannot appoint onely one because it is a matter of trust committed to two and the subject by that Act hath an Interest in it securiùs expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time another at another time by several Patents And albeit he may so do yet he that is first constituted hath no judicial voice before the other be also constituted for it is provided by the Statute that two persons c. shall be one Officer And therefore in the same case although they be constituted by one and the same Patent with these words conjunctim divisim alterius eorum diutius viventis yet that shall serve for no other purpose then that the survivor shall be one of the persons to whom another may be added to make up that one Office c. â—tate 17 A licence to hunt in my Park or Walk in my Orchard extends but to himself not to his servants or other in his company for 13 H. 7. 13. Finch 31. it is but a thing of pleasure otherwise it is of a licence to hunt kill and carry away the Déer for that is a matter of profit â—y 18 Way granted to Church over any land 12 H. 7. 25. b. Finch ibid. extends not to any other but himself for it is but an Easement â—rnment 19 A Reversion granted to two Ioynt-tenants 11 H. 7. 12. b. Finch ibid. and the tenant attorns to one it is a void Attornment 20 If the Sheriff behead one that should be hanged it is felony 5 H. 6. 58. b. 4. Finch ibid. 4 E. 6. 68. b. Finch ibid. 21 The King licenceth one to alien the third part of his Land Licence and he alieneth all it is a void alienation for all Finch ibid. 22 A Lease is made to A. and B. for their lives A. dyeth Joyntenants limitation B. shall have all during his life for it is an Interest But if a Lease be made to I.S. during the life of A. and B. there if one of them die the Estate is utterly determined for that is a limitation Co. l 1. 173. b. 4. Digges Case 23 A. covenants to stand seised to the use of himself for life Revocation and Limitations strictly taken the Remainder to B. in tail c. which power to revoke and limit new Vses by Déed indented to be inrolled in Chancery A. afterwards revokes and limits by Déed indented and then levies a Fine and after that the Indenture of Revocation c. is inrolled in Chancery Here by levying the Fine before inrolment he hath extinguished his power of Revocation c. So also it had béen if he had made Feoffment of the Land for power of Revocation and limitation of Vses are to be punctually observed because strictly taken in Law And therefore also in the same case these words Indented to be inrolled are to be understood Indented and Inrolled Co. ib. 174. b. 2. 24 A. covenants with B. that in consideration B. will marry his Daughter Limitations exitnct he and his heirs will stand seised to the use of B. and his heires B. enters and disseiseth A and makes Feoffment in Fée A. re-enters and after B. marries his Daughter yet here the Vse doth not vest in B because he hath extinguished the limitation of the Vse to him by his Feoffment Dier 56. 18. 35 H. 8. 25 If a man be bound in an Obligation with condition to pay 10 l. to the Obligor at a day to come Obligationâ— Limitation payment and the Obligee delivers him an Horse or any other thing in satisfaction of the 10 l. and the Obligee accepts it the condition is performed for the Obligée may dispence with his own duty by that means but if the condition be that a stranger to the condition shall pay it or that the Obligor shall pay it to a stranger to the Obligation in such cases the Conditions ought to be strictly performed according to their several limitations otherwise the Obligations are forfeit for in such case an horse or other thing in satisfaction of the summe will not suffice because such limitations must be strictly observed Dier 56 20 c.
out when he will An Earledome to Daughters 15. If an Earle hath his dignity to him and his Heirs and dyeth Co. ibid. 165. a. 3. having issue one onely Daughter the Dignity shall descend to the Daughter and to her posterity as well as any other Inheritance as it fell out in Sampson Leonards case who marryed Margaret the onely Sister and Heire of Gregory Fines Lord Dacre of the South and in the case of William Lord Rosse for in such case there can be no uncertainty when there is but one Daughter or Sister Howbeit where there are more Daughters then one the eldest shall not have the Dignity and power of the Earle viz. to be a Countesse but in such case the King who is the Soveraigne of honor and dignity may for the uncertainty confer the dignity upon which of the Daughters he please Howbeit the Lands shall be divided betwixt them as amongst Parceners for they are divisible and certaine Co. ibid. 211. a. 2. 220. a. 4. 16. If a man be bound to pay twenty pounds at any time during his life at a place certaine Uncertain day of payment the Obligor cannot tender the money at the place when he will for then the Obligee should be bound to perpetuall attendance and therefore the Obligor in respect of the uncertainty of the time must give the Obligee notice that on such a day at the place limited he will pay the money and then the Obligee must attend there to receive it for if the Obligor then and there tender the money he shall thereby save the penalty of the Bond for ever So likewise if a man make a Feoffment in fee upon Condition that if the Feoffor at any time during his life pay to the Feoffee twenty pounds at such a place certaine that then c. In this case also the Feoffor must give notice to the Feoffee when he will pay it for without such notice as aforesaid the tender will not be sufficient Also if A. be bound to B. with Condition that C. shall enfeoff D. on such a day C. must give noâ—â—ce thereof to D. and request him to be on the Land at the day to receive â—he Feoffment and in such case he is bound to seek D. and to give him notice In all which cases it is to be observed that what the contract of the parties leaves uncertain the Law to prevent contention reduceth to a certainty And therefore in such cases Littletons advise is wholesome councell viz. Not onely to limit a certaine place and day Litt. S. 342. Co. ibid. 212. a. 3. but likewise to set down in the Condition a certaine time of the day as betwixt the houres of two and four or the like And indeed it is good in Conveyances to set downe every thing in certainty and particularity for certainty is the mother of quietnesse and repose and uncertainty the cause of variance and contention And therefore for the obtaining of the one and avoyding of the other the best meane is in all assurances to take councell of learned and well experienced men and not to trust onely without advice to a Presiden for as the Rule is concerning the state of a mans body Nullum medicamentum is idem omnibus so in the state and assurance of a mans Lands Nullum exemplum est idem omnibus Co. ibid. 218. a 2. 17. A Lease is made to a man and a woman for their lives upon Condition that which of them two shall marry first Lease on Condition to marry that one shall have the fee they intermarry In this case neither of them shall have fee for the uncertainty Co. ibid. 227. a. 1. 18. If the Iury give a Verdict of the whole Issue and of more Insufficient Verdict c. that is surplusage and shall not stay Iudgement for utile per inutile non vitiatur and necessary incidents required by Law the Iury may find Howbeit a Verdict finding matter uncertainly or ambiguously is insufficient and no Iudgement shall be given thereupon as if an Erecutor plead plene administravit and Issue is joyned thereupon and the Iury finde that the Defendant hath goods in his hands to be administred but find not to what value this is uncertaine and therefore insufficient so a Verdict that finds part of the Issue and nothing for the residue is insufficient for the whole because they have not tryed the whole Issue whereby they are charged As if an Information of Intrusion be brought against one for intruding into a Messuage and one hundred Acres of land upon the generall Issue the Iury find against the Defendant for the Land but say nothing for the House this is insufficient for the whole and so it was twice adjudged viz. H. 25 Eliz. in a Writ of Error in the Exchequer Chamber inter Brace and the Queene and M. 28 29 Eliz. inter Gomersall and Gomersall in account in Banco Regis Co. Inst pars 1. 271. b. 4. 19 A Feoffee to the use of A. and his Heirs before the Statute of 27 H. 8. for money bargaineth and selleth the Land to C. and his Heirs Uncertainty or an use who hath no notice of the former use yet no use passeth by this bargain and sale for there cannot be two uses in esse of one and the same Land and seeing there is no transmutation of Possession by the Ter-tenant the former use can neither be extinct nor altered And if there could be two uses of one and the same Land then could not the Statute of Uses execute either of them for the uncertainty Detinue 20. A Writ of Detinue lyeth for goods delivered or found Co. ibid. 286. b. 2. when the Plaintiff can declare in certain what they are but it lyeth not for money out of a Bag or Chest or for Corne out of a Sack or the like because these cannot be distinguished from other money or Corne So likewise an Action of Detinue lyeth for Charters which concerne the Inheritance of Land if he know them in certaine and what Land they concerne or if they be in a Bag sealed or Chest locked albeit he know not the certainty of them but the Writings or at least the Bag or Chest he must know in certaine otherwise that Action lyeth not And in case of a Bag or Chest it is good to declare if he can of one Writing in certaine for then the Defendant cannot wage his Law which otherwise he may Plaas double and multiplied 21. In dilatory Pleas there may be duplicity and multiplicity of distinct matter for in their time and place a man may use divers of them Co. ibid. 304. a. 3. but in Pleas perpetuall and peremptory there ought not to be duplicity or multiplicity of distinct matter to one and the same thing whereunto severall answers admitting each of them to be good are required for that is not allowable in Law for the
for the advancement and continuance of Commerce and trade which is pro bono publico for the Rule is that Jus accrescendi inter mercatores pro beneficio commercii locum non habet Trade 5 One of the chiefest reasons why a Condition not to alien Co. ibid. 223. a. 2. annexed to a feoffment devise or gift of lands or goods is void is for that it is flatly against trade and traffique bargaining and contracting betwéen man and man Vide infra 9. Monopolies 6 Trin. 44 Eliz. The grant of the sole making of Playing Cards was adjudged void because it restrained trade and traffique Co. l. 8. 125. a. 3. the case of London which are the very life of every Commonwealth and principally of an Island There is the same reason of all other Monopolies Vide Co. l. 11. 87. Guilda 7 In favour of trade and traffique Co. ibid. the Law giveth the King power by his prerogative to erect Guildam Mercatoriam viz. a Fraternity Society or Incorporation of Merchants to the end that good order and government may be by them observed for the increase and advancement of Merchandising and trade and not for the hindrance and diminution thereof Trade Idleness 8 At the Common Law none could be prohibited to work in any lawfull trade Co. l. 11. 53. b. 4. The Taylors of Ipswich for the Law abhorrs Idleness the Mother of all mischief Otium omnium vitiorum mater and principally in young people who ought in their youth which is their séed-time to learn lawfull sciences and trades which are for the advancement of traffique and profitable to the Commonwealth and thereof they ought to reap the fruit in their old age For Jeunesse Oisense Vieillesse disettense And therefore the Law detests Monopolies which prohibit the exercise of lawful trades And this appears in 2 H. 5. b. where a Dyer was bound that he should not use the Dyers trade by the space of two years and there Hall held that the obligation was against the Common Law and added farther Per dien si le plaintife fuit icy il iroit al prison tanque il feroit fine al Roy. Tail 9 Before the Statute of 32 H. 8. 36. it seems to be the better opinion that tenant in tail by a fine might have barred his heir Dyer 32. 28. 29 H. 8. albeit the reversion were in the King because the Law always disfavours restraint of alienation in prejudice of trade and traffique Vide supra 5. 199 Honor and Order Tenant by Curtesie 1 A man shall be tenant by the Curtesie of an house Co. Inst pars 1. 30. b. 2. that is Caput Baroniae or Comitatus because so it may be still preserved intire but it appeareth by 4 H. 3. that a woman shall not be endowed thereof because in such case it should be severed which the Law will not permit for that the Law respecteth Honor and Order Vide Title Dower 180. Villein 2 Amongst the cases where the Villein shall be privileged from the seisure of the Lord albeit he be not absolutely enfranchised Co. ibid. 137. b. 3. this is one viz. Ratione dignitatis as if the Villein be made a Knight the Lord cannot seise him Vide Britton 79. Challenge 3 A Péer of the Realm Co. ibid. 156. b. 3. or Lord of Parliament as a Baron Viscount Earl Marquess or Duke in respect of Honor and Nobility are not to be sworn on Iuries and if neither party will challenge him he may challenge himself for by Magna Carta it is provided Quod nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum aut per legem terrae Now in reference to Honor and Order the Common Law hath divided all the Subjects into Lords of Parliament and into the Commons of the Realm The Peers of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes And the Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tried for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tried per pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a trial either at the Kings sute or between party and party in such case a Peer of the Realm shall not be impannelled Co. ibid. 165. a. 3. 4 Concerning Inheritances of Honor and Dignity there is an antient Book-case in 23 H. 3. Tit. Partition 18. in these words Note Noble women Coparceners if the Earldom of Chester descend to Coparceners it shall be divided between them as well as other lands and the eldest shall not have this Seigniory and Earldom intire to her self Quod Nota adjudged per totam Curiam By this it appeareth that the Earldom viz. the possessions of the Earldom shall be divided and that where there be more daughters than one the eldest shall not have the dignity and power of the Earl that is to be a Countess but in such case the King who is the Soveraign of Honor and Dignity may for the uncertainty conferr the Dignity upon which of the daughters he please And this hath been the usage since the Conquest as is said Vide 3 H. 3. tit Prescription Howbeit if an Earl that hath his dignity to him and his heirs dieth having issue one daughter the dignity shall descend to the daughter and her posterity for there is no incertainty And this appeareth by many presidents and by a late Iudgement given in Sampson Leonards case who maried with Margaret the only sister and heir of Gregory Fines Lord Dacre of the South and in the case of William Lord Ros. Howbeit there is a difference between a dignity or name of Nobility and an office of Honor for if a man hold a Manor of the King to be Constable of England and die having issue two daughters and the eldest daughter taketh husband he shall execute the office solely and before Mariage it shall be exercised by some sufficient Deputy and all this was resolved by all the Iudges of England in the Duke of Buckinghams case 11 Eliz. Dyer 285. But the Dignity of the Crown of England was without all question descendible to the Eldest daughter alone and to her posterity and so it hath béen 25 H. 8. cap. 22. declared by Act of Parliament for Regnum non est divisibile and so likewise was the descent of Troy as appears by Virg. Aeneid 1. Praeterea Sceptrum Ilione quod gesserat olim Maxima natarum Priami Co. l. 1. 24. b. 4. in Porters case 5 Iudges in their resolutions ought to have a special care Goâ—d
any Lord during the fathers life because the Law of Nature requires that the father during his life shall have the marriage of his heir apparent rather then the Lord or any other person whatsoever The Law is the same if D. had béen a daughter It is otherwise where the father dies living the mother when the Land holden by Knight-service descends to the son on the part of the father because the Law in that Case confides more in the father then in the mother c. Again this priviledge extends not to any collateral heir but onely to the son or daughter being heir apparent for albeit a man shall have an Action of Trespasse Quare consanguinem haeredem coepit and albeit the words be cujus maritagium ad ipsum pertinet because the wel bestowing of his heir apparent in marriage is a great establishment of his house yet that is to be understood as against a wrong-doer but not against a Guardian in Chivalry and the mother shall have the like writ for taking away of her son and heir apparent and yet the mother shall not bar the Lord by Knight-service of his wardship of his body as Littleton saith § 114. Qui ex filia tua nascitur in potestate tua non est sed patris sui Fleta l. 5. cap. 6. The like 3 Put the case there be Lord and Feme-tenant by Knights-service of a Carve of Land Co. ib. 84. b. 2. the Feme maketh a feoffment in fée upon condition and taketh the Lord to husband and have issue a son the wife dieth the issue entreth for the condition broken the Lord entreth into the Land as Guardian by Knights-service and maketh his executors and dieth In this Case the executors shall have the wardship of the Land during the minority of the heir but not the wardship of the body For albeit the Lord séemeth to have a double interest in the wardship of the body one as Lord and another as father yet as father and not as Lord in judgment of Law he shall have the wardship of the body of his son and heir apparent in respect of nature which was before any wardship in respect of Seigniories by Knights-service began And that wardship by reason of nature cannot be waved and claim made in respect of the Seigniorie And the executors of the father shall not have such a wardship which the testator had as father neither can such a wardship be forfeited by Outlawrie 33 H. 6. 55. 6. because it is due to the father in respect of privity of nature 9. 4 If the Sheriff or other Officer be of kindred or affinity to the Plaintiffe or Defendant Challenge to â—he Array and â—â—rour and that such affinity continue Co. ibid. 156. a 2. and 4. this is a cause of challenge to the Array as if the Sheriffe marry the daughter of either party or è converso this is a principal challenge so if there be affinity betwéen the son of the Sheriffe and the daughter of either party or è converso or the like albeit this is no principal Challenge yet is it a Challenge to the favour c. 5 If a Iuror be of blood or kindred to either party Consanguineus Co. ib. 157. a. 3 which is compounded of con and sanguìne â—o the Polles quasi eodem sanguine natus this is a principal Challenge to the Polles because the Law presumeth that one kinsman doth favour another before a stranger and how remote so ever he is of kindred yet the Challenge is good And if the Plaintiffe challenge a Iuror for kindred to the Defendant it is no Counter-plea to say that he is of kindred also to the Plaintiffe though he be so in a néerer degrée for the words of the venire facias forbiddeth the Iuror to be of kindred to either party 6 If a Body politique or incorporate sole or aggregate of many bring an Action that concerns their Body politique or incorporate Co. ibid. The like if the Iuror be of kindred to any that is of that body albeit the Body politique or incorporate can have no kindred yet for that those Bodies consist of natural persons it is a principal Challenge c. Co. ibid. 4. 7 Affinity or affiance by marriage is a principal Challenge The like and to the favoâ—â— and equivalent to Consanguinity when it is betwéen either of the parties as if the Plaintiffe or Defendant marry the daughter or Couzen of the Iuror or the Iuror marry the daughter or Couzen of the Plaintiff or Defendant and the same continues or issue be had And if the son of the Iuror hath married the daughter of the Plaintiff c. albeit this be no principal Challenge because it is not betwéen the parties yet is it a Challenge to the favour c. Co. l. 3. 38. b. 4. in Ratcliffes Case 8 Martha Wilcocks A maid conveyed away and married one of the daughters and co-heirs apparent of Eliz. the relict of William VVilcocks and then the wife of Ralph Ratcliffe dwelling in her mothers house at Hitchin being then under the age of sixtéen years and about fourtéen went from thence at two of the clock in the morning with the consent of the said Ralph to Bramfield being eight miles distant from Hitchin and there married Edw. Ratcliffe And in an Ejectione firmae brought by Luke Norton upon the demise of the said Edw. the issue was whether Eliz. the mother had the custody of Martha at the time of the said marriage for if she had then the Land of the said Martha being in soccage was to be lost for her life by force of the Statute of 4 5. P. M. cap. 8. which prohibiteth the conveying of a maid c. out of the custody and contracting Matrimony with her without the consent of her father if he be living or of her mother in case her father be dead c. in pain for the man to suffer imprisonment c. and for the maid to lose her land as aforesaid c. And in that Case it was resolved that Eliz. the mother had the custody of the said Martha at the time of the Marriage within the provision of the said Act for that Statute hath ordained two manner of new custodies viz. by reason of nature and by assignation And here the father of Martha being dead she is by nature left in the custody of her mother neither yet was the assent of Ralph Ratcliff the husband any thing at all material for the Statute hath annexed the custody to the person of the mother jure naturae which is inseparable and cannot by the marriage be transferred to the Baron but after the marriage remains onely in the mother c. Co. l. 3. 39. a. 4. in Ratcliffes Case 9 It is said No wardship during the â—â—thers life that if there be Lord and Feme tenant by Knights-service and the tenant make
Rubro cap. 78. where it is said Qui servum suum liberat in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus palà m faciat liberas ei vias portas conscribit apertas lanceam gladium vel quae liberorum arma in manibus ei ponat c. Co. ibid. 139. a. 4. Littleton §. 209 8 The Law doth tender much the liberty and fréedome of the subject in general But especially of a Commialty A Custome 〈◊〉 have a fine sâ— marrying tâ— Daughter void as if a Lord of a Mannor will prescribe that there is a Custome within his Mannor that every Tenant that marieth his Daughter to any man without the Lords licence shall pay a fine to the Lord this is a void Custome to bind a Frée-man for every Frée-man may marry his Daughter to whom he and the pleaseth And therefore to claim such a fine by a general Custome within a Mannor is against the fréedom of a Frée-man that is not bound thereunto by particular term tenure c. Howbeit such a Custome will hold amongst Villeins or amongst Frée-men that hold in Villeinage or base tenure c. Co. ib. 156. b. 1 9 At the Common Law upon an indictment or appeal of Treason Peremptory Challenge or Felony the Prisoner might in favorem vitae challenge peremptorily viz. 35. which was under the number of thrée Iuries But by the Statute of 22 H. 8. cap. 14. the number was reduced to 20. in petty Treason Murder and Felony and in Case of high Treason and Mis-prision of high Treason it was taken away by the Statute of 33 H. 8. cap. 23. and afterwards by the Statute of 1 2 Ph. M. cap. 10. the Common Law was revived So that now for any Treason the Prisoner shall have his challenge to the number of thirty five as before And so it was resolved by the Iustices upon conference betwéen them in the Case of Sir Walter Raleigh and George Brooks Co. ibid. 157 b. 4 And albeit the Offender be not arraigned upon the Crime it self but the issue is joyned upon a collateral point yet shall the party have such challenges as aforesaid As if a man be out-lawed for Treason or Felony at the Kings suit and the party for avoyding thereof alledgeth Imprisonment or the like at the time of the Out-lawry In this Case although the Issue be joyned upon a collateral point yet shall the party in favorem vitae have such challenges as if he had béen arraigned upon the offence it self because this also by a mean concerneth his life And it is to be observed that this kinde of challenge is called peremptory because the party may challenge peremptorily upon his own dislike without shewing any cause at all Howbeit if the Defendant challengeth for cause he must shew the cause presently and then also albeit the Iuror be tried indifferent yet may the party afterwards challenge him peremptorily And all these priviledges concerning Challenges are granted to the Defendant in favorem vitae c. â—n criminal Cases no priâ—y verdict 10 By the Law of England Co. ibid. 158 a. 2. a Iury after their evidence given upon the issue ought to be kept together in some convenient place without meat or drink fire or candle which some Books call imprisonment and they are to have no spéech with any unlesse it be the Bailiff and with him onely after they are agréed When they are so agréed they may in Causes betwéen party and party if the Court be risen give a privy Verdict before any of the Iudges of the Court and then they may eat and drink and the next morning in open Court they may either affirm or alter their privy Verdict and that which is given in Court shall stand But in criminal Causes which concern life and member the Iury can give no privy Verdict but must alwayes give it in open Court and canâ—â—t be discharged by the Court or any other until they have given up their Verdict accordingly c. Life liberty â—espected more â—â—n Infancy 11 Regularly no Laches shall be adjudged in an Infant Co. ibid. 227. b. 2. yet if an Infant hath a Villein that is fled into ancient Demesne and he claim him not within a year and a day that Non-claim of the Villein shall take away the seisure of the Infant and this is in favorem libertatis So if an Infant bring not an appeal of the death of his Ancestor within a year and a day he is barred of his appeal for ever and this is in favorem vitae for the Law respects more liberty and life then the priviledge of infancy â—eare of maâ—ng continuâ—al claim 12 Doubt or fear that concernes the safety of the person of a man Co. ib. 246. a. 2 as Battery Maheim Imprisonment Death c. is sufficient cause to excuse him from going upon the land to make his Claim so that he approach as néer the land as he dare for such doubt or fear but fear of having his houses burnt or of the taking away or spoiling of his goods is no sufficient cause to excuse him because he may recover the same or dammages to the value thereof without any corporal hurt And therefore in such Case he shall go upon the Land to make his claim c. Talis enim debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Et nemo tenetur se infortuniis periculis exponere 〈◊〉 Felony Out-lawry may be reverâ—ed by plea. 13 If a man be out-lawed Litt. § 419. Co. ib. 259. b. 2 there is two manner of wayes to reverse it viz. by Plea or by writ of Error by plea for when the Defendant cometh in upon the Capias utlagatum c. he may by Plea reverse the same for matters apparent as in respect of a Supersedeas omission of processe variance and other matter apparent in the Record so he do it the same term as some hold But for any matters in fact as Death Imprisonment Service of the King c. he is driven to his writ of Error Neverthelesse in Case of felony he may plead these matters of fact also and that is in favorem vitae c. Co. ibid. 274 b. 2 Finch 29. 14 An expresse manumission of a Villein cannot be upon a Condition subsequent For once frée in that Case and ever frée A Villein free ever And this in favorem libertatis It is other wise of a Condition precedent in the same Case c. Co. ibid. 283 2. 3. 15 The life of a man is so precious in the eie of the Law Life precâ—â—â— in the eie of the Law that it will not suffer by way of plea to justifie in the killing or death of a man And therefore in that Case he shall be received
these cases he may Co. l 10. 47. b. 3 in Lampets Case 26 A. Lessée for 500 years deviseth to B. for life and after his decease the remainder to C. and the heires of his body this executory devise the remainder to C. and the heires of this body this executory devise may be released to B. but cannot be granted to a stranger it is otherwise of an interest executed Fit 2. N. B. 83. b 27 If the Lord levie aide to marry his Daughter Aide for marring c. and do afterward marry her she shall not have an action against the executors of the father for that money it is otherwise if she were not married in his life time So it is also of the sonne not made Knight c. F. N. B. 120. f 121. c 28 If a man take a feme who is indebted to an alien Baron not chargeable without reco and the feme dies before that Debt is recovered by action in that case the Baron is not chargeable It is otherwise if it were recovered living the feme c. Pl. Co. 52. a. 1. Wimb Talb. Case 29 An heir in tail that hath a Reversion An estate executed and executory div or remainder really executed in him shall not néed to plead specially how he is heir it is otherwise where it is to be executed So if Administrators bring an action of Trespasse for Goods taken out of their own possession they shall not shew the Letters of Administration Otherwise it is for Goods taken in the life of the Intestate for there the possession of the Goods were never executed in them but to be executed Also if a Lease be made for life the remainder in taile and he in the remainder is seised after the death of the Tenant for life his issue shall have a Formedon and shall declare upon the immediate Gift neither yet shall shew the Déed otherwise it is if that estate were to be executed Pl. Co. 51. a. 3. Wimb Talb. Case 9 H. 6. 23. Pl. Co. 56. b. 5. contra 30 A man deviseth land to one for life An estate vested shall remaine the remainder to the right heires male of the Devisor and to the heirs of his body begotten the Tenant for life dies and the next heir of the Devisor being a feme enters and after had a sonne And there it was holden by the best opinion that the some shall not out the feme because the sonne born after shall not take away the land before vested in the feme as heir for default of such person then in rerum natura to take the devise Co. Inst p. 1. 117. a. 3. 31 If lands be given to Villain and to the heires of his body Villain and alien tenantâ— in tail and the Lord enters and after enfranchiseth the Donée and then the Donée hath issue yet that issue shall never have remedie either by Formedon or entry to recover the Land for that it was executed in the Lord before the enfranchisment of the Donée and the Statute de Donis giveth remedy to the Issues of the Donée that have capacity and power to take and retaine such a gift c. So it is also if lands be given to an Alien and to the heires of his body upon office found the land is seised for the King afterwards the King makes the Alien a Denizen who hath issue and dieth in this Case also the King shall detaine the land against the Issue c. â— fâ—eri facias â—câ—ted shall â—d 32 Sale by the Sheriffe upon a fieri facias shall stand Co. l. 8. 76. b. 4. Mathew Manuings Case albeit the judgment afterwards reversed and the Plaintiffe in it restored to the value Dier 363. 24. 〈◊〉 original 〈◊〉 judicial â—ll abate or 〈◊〉 abate 33 There is a diversity betwixt writs real original Co. l. 10. 134 in Read and Redmans Ca. which are as things executory writs real Iudicial which Issue from the judgment being in the nature of a thing executed And therefore if 2 coperceners bring a real Action and the one is summoned and severed and after dies having issue or no Issue in this Case the writ shall abate so likewise if 2 jointenants bring an Assise or other original real Action and the one is summoned and severed and dies the writ shall abate albeit the thing in demand servive But if two coperceners bring a scire facias which is a judicial writ upon a fiue levied c. and the one copercener is summoned and severed then dies without Issue such judicial writ shall not abate And so it is also of two joyntenants Howbeit if the copercener that dies hath issue it shall abate because the right descends â—â—â—ter â—câ—â—ed 34 If lands be given to a man and the heires females of his body Co. Inst p. 1. 357. a. 2 and he maketh a feofment in fée and take backe an Estate to him and his heires and dieth having Issue a Daughter leaving his wife grossement ensuit with a Son and dieth the Daughter is remitted and albeit the Son be afterwards borne he shall not devest the remitter because it was executed â—e feme reâ—ed after â—ontinuâ—e 35 If the Baron discontinue the land of the Feme and go beyond Sea Litt. § 677. Co. Inst p. 1. 356. b. 4. and the discontinuée leases the land to the Feme for life and gives her seisin and after the Baron returnes and dis-agrées to the lease and livery of siesin made to the Feme yet in this Case she is remitted to her ancient Estate because by the lease for life and livery the remitter was executed in the Feme and the Estate for life to the Feme which wrought the remitter is vanished and whole defeated And therefore dis-agréement of the husband can devest the Estate gained by the lease which by the remitter was actually devested before 〈◊〉 plenâ—â—ty â—â—re induâ—â—n 36 A Clerk is not enabled by the Stat. of 25 E. 3. 7. Dier 1. 8. 4 H. 8. by the word possessor to plead in barre before induction for by that his possession is executed and then he is possessor and not before â—eâ—ants in â—â—mon of 〈◊〉 Advowson 37 Thrée Tenants in common 〈◊〉 an advowson make composition Dier 19. a. 194 28 H. 8. that each of them shall present by term if each of them hath once presented by his turn by vertue of the composition in a Qu. Imp. brought after amongst them it is not necessary to shew the composition because it was executed it is otherwise in Case it were not executed And such composition cannot be without writing it is otherwise of coperceners for such composition may be by parol amongst them because they are privies and as one heire and are compellable to make partition â—sâ—uy que use â—render in 〈◊〉 38 Cestuy que use after the Statute of 1
c. hereupon C. brings a writ of Error c. and for one of the Errors assigns that albeit Ludlow be a Court of Record yet it is not such a Court as is intended by the Statute for causes of that nature for that the antient usage in all such popular actions or informations hath been that albeit the Informer tam pro domina Regina quam pro ipso exhibits the Information yet if the defendant pleads a special plea the Quéens Attorney shall reply alone and it was intended by the makers of the said Act that the sute should be in such a Court where the Kings Attorney may attend for the benefit which the King may have by such a sute and that is in the four Courts at Westminster And thereupon the Iudgement was reversed Vide Dyer 236. 24. Admission and Institution 32 He that comes in by Admission and institution Co. l. 6. 49. b. 1. in Boswels case comes in by a judicial act and the Law presumes that the Bishop who hath the cure of the Souls of all within his diocess for which he shall answer at his fearfull and final account in respect whereof he ought to defend them from all Schismatiques Heretiques and other Instruments of the devil will not do or assent to any wrong to be done to any Parsonage within his diocess but if the Church be litigious will inform himself of the truth de Iure Patronatus and so do right Peer agâ— 33 The person of a Peer of the Realm or a Countess Baroness Co. l. 6. 52. b. 3. in the Countess of Rutlands case c. by marriage or descent ought not to be arrested for debt or trespass because the Law presumes that they have sufficient in lands and tenements whereby they may be distrained and therefore in such cases issues only shall go out against their lands And albeit a Countess Baroness c. in respect of her sex cannot sit in Parliament yet she is a Peer of the Realm and shall be tried by her Peers as appears by the Statute of 20 H. 6. cap. 9. which is but a declaration of the Common Law Vide plus ibidem Cestuy que use 34 If Cestuy que use had granted his use by his will Co. l. 6. 76. a. 3. in Sir Geo. Cursons case no collusion could have been averred upon such a will to obtain the wardship of his heir for Nemo praeâ—umitur esse immemor suae aeternae salutis et maxime in articulo mortis et omne testamentum morte consummatum est And therefore the Statute of 4 H. 7. 10. which gives the wardship of Cestuy que use makes exception when any will is by him declared Vide 27 H. 8. 14. Divorce 35 Ch. and Eliz. were divorced in the Court of Audience ratione aetatis minoâ—is et impubertatis Eliz. after they had lived ten years together and had issue a daughter Co. l. 7. 43. b. Kennes case and afterwards Ch. marrying another woman by another Sentence in the Ecclesiastical Court the first marriage was declared void the second good and liberty given them ad exequenda conjugalia obsequia The second wife dies and Ch. marries a third wife and hath issue another daughter The last daughter is found heir by office the first traverseth the office by bill in the Court of Wards And in this case it was resolved that albeit the first was in truth a lawfull marriage yet the Sentence of divorce being in force no averment could be admitted against it because the Spiritual Iudge having jurisdiction thereof before the Sentence were repealed it was intended by Law to be Iust and our Law gave credence thereunto for Res Judicata pro veritate accipitur See Dyer 13. pl. 62. Co. l 9. 52. b. 4 in Hickmols case 36 If the Obligee confess himself to be discharged of all bonds betwixt him and the Obligor Release of bonds this by intendment of Law is a release or discharge of all bonds betwixt them for albeit the word discharge is not properly said of the part of the Obligee but of the Obligor for the Obligor is to be discharged yet in judgement of Law such an acknowledgement amounts to a discharge of the Obligor of all such duties Co. l. 9. 109. Meriel Treshams case 37 In debt against an executor he cannot plead quod ipse non habet c. aliqua bona c. praeter bona Plea of Executor c. quae non sufficiunt ad satisfacienda debita praedicta but he ought to plead quod non habet c. bona c. praeterquam bona catalla ad valentiam of a certain summ non ultra quae eisdem debitis obligata onerabilia existunt for the first plea is insufficient for the uncertainty vide Max. 162. pl. 61. and the other he ought to plead because he being privy and representing the person of the testator hath by intendment of Law notice of the certainty and certain value of the goods and therefore in such case ought to plead certainly as aforesaid The like Law is of an administrator for the goods of the Intestate Co. l. 11 13. a. 1. in Priddle and Nappâ—rs case 38 Of Impropriations formerly given to Monasteries Appropriations not only those which were truly Impropriate but likewise such as had been and were so in reputation were given to H. 8. by the intendment of the Statutes of Dissolution for albeit in those Statutes there is a saving of rights yet the Founders Donors c. are excepted out of that Saving so as they are bound by the body of the Act. Co l. 11. 16. a 4. in Doct. G anâ—s case 39 A Prescription Tites that every Inhabitant in the parish is to pay 2 s. in the pound according to the value of their houses yearly instead of Tithes is a good prescription because by intendment of Law the commencement thereof might be lawfull for it might be so by composition for the land before the houses were built 40 It is a Principle in Law that a barr is good if it be certain Plea in barr to a common intent good to a common intent Pl. Co. 28. a. 4. Colchrist Bernshin Vide ibid. 31. a. 33 a. 4. â—6 a. 3. as if a Messuage be demised to A. for life the remainder to B. for life si ipse B. vellet inhabitare in messuagio praedicto c. Here in an Action brought by the lessor for the recovery of the Messuage c. upon the condition broken it is a good barr for B. to say that after the death of A. he entred without averring the time of his entry viz. immediately after the death of A. because by intendment of Law it will be presumed he did so enter So if one plead in barr that A. died seised and that B. entred as son and heir to A. this is a good barr
§. 209. as if a Lord of a manor will prescribe that every Tenant who matieth his daughter to any man without the Lords licence shall make fine This prescription is void being against reason because none shall make such fines but only villeins for a freeman may fréely mary his daughter to whom he pleaseth And albeit that it hath been objected by some that such a custom may have a lawful beginning because Littl. in the beginning of the chapter of villeinage § 174. alloweth that a freeman may take lands of the Lord to be holden of him viz. to pay a fine for the mariage of his son or daughter and therefore some have thought that such a custom generally with in the manor might be good but the answer is that although it may be soln a particular Case upon such a special reservation of such a fine upon a gift of land yet to claim such a fine by a general custom within the manor is against the fréedom of a freeman that is not bound thereunto by particular tenure howbeit a custom may be alleged within a manor that every tenant albeit his person be free that holdeth by bondage or native tenure the freehold being in the Lord shall pay to the Lord for the mariage of his daughter without licence a fine And this is termed Marchet of two french words Mariage and achecter to buy Co. ibid. 140. a 4. b. 1. Littl. §. 210. 6 The custom of Gavelkind in Kent where all the sons inherit equally Gavelkind hath been alwayes allowed a good custom because every son is as well a gentleman as the eldest and having means may attain to as great honor and preferment as the eldest which by want and penurie may be obstructed according to that of Horace Haud facile emergunt quorum virtutibus obstat Res angusta domi Co. ibid. 140. b. 3. Littl. §. 211. The like custom is used and allowed as reasonable in other parts of England within divers manors and seigniories although it be not called Gavelkind in any Country but Kent And as it is said of sons so likewise by custom when one brother dieth without issue all the other brethren may inherit There is also another custom allowed within divers manors called Borough-English Borough-English where the youngest son or youngest brother inherits and in the manor of B. in Berkshire where the sisters shall not be Parceners but the eldest sister shall have the inheritance all which do hold good because consonant to reason Co. inst pars 1. 141. a. 3. 7 Malus usus abolendus est and every usage is evill Malus usus that is against reason Quia in Consuetudinibus non diuturnitas temporis sed soliditas rationis est consideranda And by this rule at the Parliament holden at Kilkenny in Ireland Lionel Duke of Clarence being then Lieutenant of that Realm the Irish custom called there the Brehon-law was wholy abolished for that as the Parliament said it was no law but a lewd custom et malus usus abolendus est as is said before Co. ibid. 155. a. 2. 8 Albeit the writ of Assise be that the Sheriff Assise Faceret duodecim liberos et legales homines de vicineto c. videre tenementum c. Yet by antient course the Sheriff must return 24. and this is for expedition of justice for if 12. should only be returned no man should have a full Iury appear or be sworn in respect of challenges without a Tales which would be a great delay of trials so as in this case usage and antient course maketh a Law Co. l. 2. 17. a. 4. in Lanes case 9 Severance of the frank-tenement and inheritance of land holden by copy of Court-Roll Copyhold doth not extinguish or determine the Copy-hold estate for albeit his estate is taken to be but an estate at Will yet the custom hath so established the estate of the Copyholder that he is not removeable at the Will of the Lord so long as he performs the customs and services And by the same reason the Lord cannot determine his interest by any Act that he can do and so hath it been oftentimes adjudged in the Kings Bench. Co. l. 4. 21. a. 3. in Browns case 10 Albeit a Copyholder hath in judgement of law but an estate at Will yet custom hath so established and fixed his estate Copyhold that it is by the custom of the manor descendable and his heirs shall inherit it And therefore his estate is not meerly ad voluntatem domini but ad voluntatem domini secundum consuetudinem manerii so as the custom of the manor is the very soul and life of Copyhold estates for without custom or if they break their custom they are subject to the Will of the Lord And by custom a Copyholder is as well inheritable to have his land according to the custom as he who hath a franktenement at the Common Law for Consuetudo in this case est altera lex and being an usage time out of mind may create and consolidate Inheritances Alienation presented 11 A Custom within a Manor Co. l. 5. 84 a. 3. in Penimans cas◠that every alienation of lands holden of the same Manor whether it be by writing or feoffment thereof made or by will shall be presented at the next Court holden for the said Manor in pain that upon failer of such presentment such alienation shall be void is a good and reasonable Custom But a Custom that none shall use his Common in such a place until the Lord enter with his beasts is void for the unreasonableness for if the Lord will not enter it is no reason that the Commoners should lose their Common Vide 2 H. 4. 24. Common of Shack. 12 Common called Shack which at the beginning was but in nature of a féeding together by reason of Vicinage for avoiding of sutes is in some places by Custom altered to the nature of Common appendant or appurtenant Co. l 7. 5. a. Sir Miles Corbets case and in some places it retains the original nature and the Rule to know it is the Custom and usage of every several Town or place for Consuetudo loci est observanda And therefore if in the Town of Dale one hath gotten divers parcels of land together in which the Inhabitants have used to have Shack and long since did enclose it and nevertheless alwayes after harvest the Inhabitants have had Shack there for their Cattel This shall be taken for Common appendant or appurtenant and the Owner cannot exclude them from Commoning there albeit he will not Common with them but hold his own lands so enclosed in severalty And this is well proved by the usage for notwithstanding the antient enclosure the Inhabitants have had Common there But if in the Town of Sale the Custom and usage have béen that every Owner in the same Town hath enclosed his own land