then issue a sonne and a daughter And after the divisor dies also A. dies and B. dies without issue C. also and his wife die and the sonne hath issue a daughter and dies Here the question was whether the daughter of the sonne should have the land or no And it was resolved that she should not because in this case at the Common Law C. and his wife had but an estate for life with remainder to their children for life and then the cause or reason why they by the will should have an estate taile is onely grounded upon the intent of the divisor Howbeit it was resolved that such an intent ought to be manifest and certaine and not obscure and doubtfull because it will not then admit of any strained construction farther than the words themselves do import by a proper and genuine interpretation according to the Rules of Law Devise 5 If I devise lands to my sonne Thomas to hold to him and the heires male of his bodie for the terme of 500 yeares Co. l. 10. 87. a. Leonard Loves Case Dyer 7. pl. 8. 28 H. 8. his heire shall not have them but his executors for this terme is but a chattel and cannot be intailed and such a devisée may alien the terme if he please And Cook Chief Justice held that such a devise is but an estate for years because it is so in expresse words devised and that in this case against expresse words no inference or interpretation shall be admitted Tales 6 Tales de circumstantibus shall not be granted in an Assize by the Statute of 35 H. 8. 6. Co. l. 10. 105. a. Denbawdes Case because by the expresse words of that Act they are onely grantable in every writ of Habeas corpora or distringas with Nisi prius and no exposition can in this case be made against expresse words for viperima est ista expositio quae corrodit ventrem textus 7 If feme tenant for life take husband who makes wast Co. l. 5. 75. b. Cliftons Case and the feme dies Here the husband is not punishable for that wast because the Statute of Glocest 6 E. 1. cap. 5. is thus recited in the writ of wast Wast Quare cum de communi c. provisum sit quòd non liceat alicui vastum c. facere de terris c. sibi demissis ad terminum vitae vel annorum c. So that the land being not demised to the husband but he holding it onely for her life and in her right he shall not be chargeable for wast after the death of the wife by the expresse words of the Act as it is recited in that writ Devise 8 A devise of land by will is good without Probat Dyer 53. b. 11. 34 H. 8. because the Statute of wills ordaines onely that it shall be in writing and enjoynes no Probat and therefore if it be in writing and proved by witnesses it is good without Probat Tail of the King 9 If tenant in tail of the gift of the King Co. Inst pars 1 373. 1. the reversion to the King expectant is disseised and the disseisor levie a fine and five yeares passe this shall barre the estat tail notwithstanding the Proviso in the Statute of the 32 H. 8. cap. 36. So likewise if a collateral ancestor of the Donée release with warrantie and the Donée suffer the warrantie to descend without entry made in the life of the ancestor this also shall bind the tenant in raile because the words of that Statute are had done or suffered by or against any such tenant in taile And in this case he is not partie or privie to any act either done or suffered by or against him 17 Maledicta est expositio quae corrumpit textum Co. l. 2. 24. a. Baldwins Case 1 The Earl of Cumberland demises land to Anne and to one Anthony Baldwin her sonne and to the heires of the said Anthony Demise Habendum to them from the date for 99 yeares Here albeit heires are mentioned in the premisses yet is not the Habendum repugnant unto them but they have a joynt estate for yeares for it cannot be repugnant as to Anthony and yet good to Anne Viperima est ista expositio quae corrodit ventrem textus Co. l. 11. 70. a. Magd. Colledge Case Grants to the King Stat. 13 El. 10. 2 Grants to the King are restrained by the general words of 13 El. 10. for the words are to any person or persons Grants to the King of Church Livings bodie politique or corporate and the King is a person as it is said in 10 H. 7. 18. and a bodie politique as appears in Plowd fol. 213 234. Now therefore if the King be cléerely included in the letter if he shall be excluded out of the Act it must be by construction of Law and in this case the Law will make no such construction for the Quéen Lords and Commons who made the Act have adjudged as in the preamble appears that long leases made by Colledges c. are unreasonable and against reason much more estates in fée simple And the Law which is the perfection of reason will never expound the words of that Act against reason for maledicta est expositio c. 18 Nimia subtilitas in lege reprobatur Co. l. 5. 121. a. Longs case 1 Exception was taken to an Indictment Indictment because it was said to be taken coram W. S. Coronatore Dominae Reginae infra libertatem dictae Dominae reginae villae suae de Cossam praedict super visum corporis c. and doth not alleadge to what places the said libertie doth extend or whether part or any of the towne of Cossam be within the libertie and so it did not appear that the Coroner had any Iurisdiction in the place where the inquisition was taken nor where the murder was committed nor where the dead bodie lay for all is alleadged by the indictment to be at Cossam Howbeit the indictment was adjudged sufficient notwithstanding this exception for although it be true by the Rule of Law that indictments ought to be certaine yet it is to be observed that there are three sorts of certainties 1 To a common intent 2 To a certain intent in general 3 To a certain intent to each particular The first sufficeth in barres which are to defend and excuse the partie the second is required in indictments counts replications c. because they are to excuse or charge the partie the third is rejected in Law as too nice and curious for Talis certitudo certitudinem confundit And in this present case the indictment is certaine enough in general viz. that Cossam is within the libertie of Cossam but to imagine that the libertie may extend out of the town and yet the town it self to be out of the libertie is a captious and strained intendment which the
right of Inheritance or Frank-tenement which is supposed originally to commence by Livery shall not be transferred or be extinct without some Ceremony as first by re-entry upon the Disseisor and then by giving Livery or by that which doth tant amount viz. by release or confirmation to him 13 H. 7. 13. 20. c. And therefore it is commonly said in our Books that accord with satisfaction is a good Plea in personal Actions where Damages onely are to be recovered but not in Real Actions Co. l. 4. 55. b. 56. a. In the Case of the Sadlers in London 29 Ass 31. Pierce Partifields case 12 In Pierce Partifields case cited in the case of the Sadlers of London in the 4 Report fol. 55. An office found for the King cannot be quasht but by petition matter of record of as high nature b. it was found by office by force of a Diem clausit extremum after the death of one that held houses of the King in London that the Tenant died without heir whereupon the King grants them to Pierce P. for life who sueth a writ to the Major to put him into possession the Major returnes that the Tenant made his Will and gave them to his wife for her life who was yet in life and seised of the said houses together with one Jo. Digle her then husband P. P. outs Digle and his wife who thereupon bring a Scire facias against P. P. who demands Iudgement of the Writ because in as much as he was but Tenant for life and the reversion was in the King they ought to sue the King which they could not do but by petition And it was adjudged by all the Justices assembled in the Chancery that the Writ should abate and that Digle and his wife should sue by petition because for as much as the Kings Title was found by inquest of office upon oath the Title of the Subject ought also to appear by Record of as high nature viz. by like inquest of office upon oath and not by return of the Major onely for albeit that return be matter of Record yet is it not of so high and great regard in the Common Law as an office found by oath Co. l. 4. 55. a The Case of the Sadlers in London 13 At the Common Law The like when the King was seised of any estate of Inheritance or Frank-tenement by any matter of Record were his Title by matter of Record judicial as attainder c. or ministerial as office or by conveyance of Record by assent as fine Déed inrolled c. or by matter in fact and found by office of Record upon oath as alienation in Mortmaine purchase by Alienée the Kings villein escheat by death without heire c. he that had right could not have any traverse whereupon he might also have an Amoveas manum but was alwayes put to his petition of right to be restored to his Frank-tenement and Inheritance Howbeit he might have his Monstrance de droit and was not forced to his petition when the King was intitled by matter in fact as Villein Mortmaine Escheat Alien c. found by office and by the same office the Title of the party did also appeare as if a Disseisor did alien in Mortmain or to an Alienée or to the Kings Villeine or did die without heire in all these cases the party grieved might have his Monstrance de droit at the Common Law And so are the Books to be understood in 9 E. 3. 51. 13 E. 4. 8. a. 4 E. 4. 21. 33 E. 3. title Travers 36. Co. ibid. 14 It was found by office that T. by the Kings Licence married the Kings Niefe The like and that certaine Lands descended to the same Niefe which the Baron had aliened without the Kings leave his wife being the Kings Niefe to another and for that cause the land was seised whereupon the Alienée comes into the Chancery and sheweth all the case as it was found by office And therefore because all the truth of the case viz. the Niefe maried by his Licence the descent to the Niefe after the Coverture c. did appeare in the Office it was awarded that the Baron for that cause should hold by the Curtesie and that the Feme by his alienation should be put to her Action and thereupon by award the Alienée had restitution The like 15 It was found by Office that I. held of the King 30 Ass Pl. 28. Co. ibid. 56. a. and that M. his daughter and heire was of full age and had Livery and by another Office it was also found that the same I. had another daughter K. which was yet within age whereupon a Scire facias went out against M. and her husband c. who said that the land was given to I. and to his first wife the Mother of M. in taile and that K. was his issue of another wife and so M. sole heire but by award of all the Iudges all the land was seised into the Kings hand because the entaile was not found by any Office but onely that M. was general heire A Noble woman by marriage made ignoble 16 If a Woman be noble as Dutchesse Countesse Baronesse Co. l. 4. 118. b 4 Acton case Co. l. 6. 53. b. 2. The Countess of Rutlands Case c. by descent although she marie under the degrée of Nobility yet her birthright remaines For that is annexed to her bloud and is Character inde lebilis But if a Woman attaine Nobility by mariage viz. of a Duke Earle Baron c. and after the death of her first husband take another under the degrée of Nobility by this last mariage with one that is ignoble she hath lost the dignity unto which she attained by her first marying one of the Nobility for eodem modo quo quicquid constituitur dissolvitur And Quando mulier nobilis nupserit ignobili desinit esse nobilis Ecclesiastical Law founded by the Common Law 17 If it be demanded what Canons Constitutions Co. l. 5. Part 1. 32. b. The case of the Kings Ecclesiastical Law Ordinances and Synodals provincial are still in force within this Realme the answer is that it is resolved and enacted by authority of Parliament That such of them as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative Royal are still in force within this Realme as the Kings Ecclesiasticall Lawes of the fame Now therefore as consent and custome hath allowed those Canons c. So no doubt by the general consent of the whole Realme any of the same may be corrected inlarged explained or abrogated Writing annulled by writing 18 Although Indentures being made for the declaring of the uses of a subsequent Fine Co. l. 5. 26. a. The Earle of Rutlands
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
be in better condition then the subject from whom the claimes and in that case shall have the priority and so shall his grantée also c. as is holden in 24 E. 3. 65. Fitz. tit gard 27 47. Co. l. 5. 91. b. 3. in Semaynes Case 39 In all cases when the King is partie Sheriffe 〈◊〉 open dooreâ— the Sheriffe if no doore be not open may after notice given of the cause of his coming request made to have the door opened break open the house of the partie either to take him or to make other execution of the Kings process if he cannot otherwise enter into it but so it is not in the case of a subject c. So for felonie or suspicion of felonie the Kings officer may breake the house to take the felon because in every felonie the King hath an Interest and where the King hath Interest Felonie the writ is Non omittas propter aliquam libertatem and therefore the libertie or priviledge of an house shall not hold out against the King besides it concernes the Common Wealth that felons be apprehended and in that respect also the King hath a special Interest being the head of that body c. Co. l. 5. 104. a. in Bakers case 40 T. 42 E. in B. R. in Ejectione firmae it was resolved Demurre that if the Plaintiffe shew in evidence any matter in writing Record or Sentence in the Ecclesiastical Court whereupon Question in Law may rise and the defendant offers to demurre c. the Plaintiffe cannot refuse to joyne in demurrer unlesse he will waive his evidence so if the Plaintiffe produce witnesses and the defendant admit their testimonie to be true he may demurre c. So also may the Parliament demurre mutatis mutandis Howbeit upon evidence in an information for the King his Council shall not be compelled to demurre But in that Case the Court may direct the Iury to find the special matter and thereupon they shall adjudge the Law as appeares in 34 H. 8. Dier 53. And this is by reason of the Kings prerogative who may also waive the demurrer and take issue at his pleasure Nota bene Co. lib. 5. 106. a. 4. 108. b. 1. in Sir Henry Constables case 41 Originally the Common Law gave unto the King all such things as were In nullius bonis as Wrecke viz. Goods Things 〈◊〉 liuâ— boâ—i quae naufragio ad terram appelluntur Flotsan viz. When the Ship is drowned or otherwise perished and the Goods flote upon the Sea Wrecke Jetsam as when the Ship is in danger to be drowned and to dis-burden the Ship the Goods are cast into the Sea and after notwithstanding the Ship perisheth Estrayers Lagan vel potius Figan as when the Goods so cast out are so ponderous that they sinke and the Mariners to the end they might find them again fasten a piece of Corke or a Boye to them that will not sinke and therefore this séemes to be called Ligan à Ligando It gave also to the King Estrayes which Bracton calles Animalia vagantia and others Animalia vacantia quia Domino vacari debent Also treasure trove and the like Because by the Rule of the Common Law when none could claime a property in any Goods the King was to have them by his prerogative And therefore Bracton saith Sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wreccum maris Bract. l. 3. c. 3. Grossus Piscis sicut Sturgio Balena aliae res quae Dominum non habent sicut animalia vagantia quae sunt Domini Regis propter privilegium Mare Clausum And note that the King shall have Flotsan Jetsan and Lagan by his prerogative as well as wrecke Albeit they be in or upon the Sea for the Sea is of the Kings Ligeance and parcel of this Crowne of England as it is holden in 6 R. 1. protection 46. and Britton cap. 33. agrées well with the opinion of Bracton that wrecke c. are things in nullius bonis and come into the hands of the subject Originally by Kings grant his words are these Britt c. 33. Et ausi purchas lou per franchise grantee par nous de choses trovves en nulluy biens si come de wrecke de neer bestes estrayantes of Conies Levres pessons Fesants Pertris autres Bestes sauvages par franchise de aver wrecke de meer trouve en son soil waife estray trouve en son fee garrennes en ses demesnes terres c. Lady Peere â—rest 42 A Countesse by descent or mariage cannot be arrested for debt or trespas 1 In respect of her dignity 2 The Law presumes Co. l. 6. 52. b. 3. in the Case of Isabel Countesse of Rutland that she hath sufficient in Lands and Tenements so hereby to be distrained for albeit in respect of her sex she cannot sit in Parliament yet she is a Péere and shall be tried by her Péeres as appeares of 20 H. 6. cap. 9. which was nothing else but a declaration of the Common Law So it is also of a Baron that is a Péere of Parliament 11 H. 4. 15. In homine repligiando against the Lady Spencer it appeares that the said Lady was a Peere of the Realme â—pon account Lady not exâ—ined 43 In 3 H. 6. 48. Co. ibid. 53. a. 1. A Writ of debt upon arrerages of accompt was brought by the Lady of Aburgavenie against another the Defendant pleads Rien luy doit and is ready to make his Law and prayes by force of the Statute of 5 H. 4. cap. 8. that the Parliament might be examined which Act is generall viz. that examination shall be made which is alwayes intended upon oath And there Cokein who gave the Rule said La Dame d'Aburgavenie est un Peere del Realme ne sera bien fait de luy faire venir d'estre examine Car par mesme la reason nous Dames faire venir chescun Duke on Countee d'Angliterre Rolfe Serjeant purquoy nou Sr. Le dit Statute est general est fait pur chescun home haut base A que Cokein dit le ley voit over diversity pur enter Seignior ou Dame c. auter Common Person By which book it may be observed that a Lady which is but the wife of a Baron is a Péere of the Realme and is in equipage as to Nobility and priviledges incident to their dignities with Dukes â—duo Juror Earles c. 44 In 48 E. 3. 30. Co. ibid. 53. a. 3. Sir Ralfe Everden Knight brings a writ to the Chancery and also a writ of the Privy seale to the Iustices rehearsing that he was a Baron and commanding them to discharge him of his oath in juratis accessis recognitionibus quibuscunque because the Barons ought not to be sworne upon Inquests and Recognitions
the warranty did bar him for ever c. 23 Albeit Laches of a man non compos mentis may prejudice him for his entry as if he be disseised Co. l. 4. 125. a. 4. in Beverleys Case and a discent is cast Fine in this case he cannot enter yet it shall not prejudice his right as if a man non compos mentis were disseised and the disseisor had levied a Fine in this Case at the Common Law although the year and day had passed yet he that was non compos mentis was not bound thereby but that he might well enter And this is proved by the Statute de modo levandi Fines made Anno 18. E. 1. which was nothing else but a Declaration of the Common Law There is the same Law of an Infant one in prison or not within the four Seas or of a woman not duly examined for in all these Cases a Fine was not binding at the Common Law although claim was not made within a year and a day as appears by the same Statute c. There is also the like exception of such persons in the later Statute of Fines with Proclamations made 4 H. 7. cap. 24. which proves that the Law-makers had in all Ages a special care to provide for persons that had such defects and imperfections c. Ideots King Tutor 24 In Case of Ideots or fools natural Co. l. 4. 1â—6 a 2. in Beverleys Case because as Bracton saith Non multum distant à brutis qui ratione carent the Law of England as well as the Law Civil hath provided a Tutor for them viz. the King and hath made provision for the preservation both of their Inheritance and also of their goods as appears by Britton fol. 16. and likewise by Prerogativa Regis cap. 9. made 17 E. 2. which was nothing else but a Declaration of the Common Law And albeit that Statute onely saith Quòd Rex habebit custodiam terrarum fatuorum naturalium c. yet the King shall have as well the custody of their bodies and goods as of their lands and also of all other hereditaments as well those which they have by purchase as others which they have by inheritance at the Common Law c. And the reason of this is because as Fitz. N. B. saith 232. the King is bound of right by his Laws to defend his Subjects their Goods and Chattels Lands and Tenements And therefore every Subject being by the Law in the Kings protection an Ideot who cannot defend or govern himself nor order his Estate ought of right to have both his person and estate protected and ordered by the King c. Executor 25 If an Infant be an Executor Co. l. 5. 27. b. 2 in Russels case a Release or Acquittance made by him binds him not unlesse it be in the due pursuit of his Office of Executorship and for so much onely as he really receives Executor 26 An Administrator durante minore aetate cannot sell any of the goods of the dead if it be not of necessity for the payment of debts Co l. 5. 29. b. 3. in Princes case or bona peritura for he hath his Office of Administration pro bono commodo of the Infant and not for his prejudice Also such an Administrator cannot assent to any legacy unlesse there be Assets to pay debts c. and generally he can do nothing to the prejudice of the Infant for the words of the letters of Administration are Administrationem omnium singulorum bonorum ad opus commodum utilitatem executoris durante sua minore aetâ—te non alitèr nec alio modo committimus c. 27 Generally in all Actions real Co. l. 6. 3. b. 1. in Markals Case which the Infant brings of his own possession Pâ—â— Iâ—fancie â—â—tolne deâ—â—r albeit he hath the land by descent and that the tenant plead the déed or warranty of his Ancestor the parol shall not stay for his non-age For by presumption of Law the granting of delay is in favour and for the benefit of the Infant lest by default of good understanding of his estate and of the truth of the matter he might be prejudiced of his right which descends unto him from his Ancestor And therefore in such case the Law will rather suffer a delay then hazard the right of thâ— land the possession whereof his Ancestor hath by negligence or otherwise lost But when the Ancestor dies seised and the land doth descend unto the Infant and he enters and takes the Explees and profits In this Case it will he a prejudice to the Infant if he should lose the possession which he had and shall be thereof delayed until his full age It is otherwise when onely a naked right descends unto him for then he can suffer no such prejudice but rather may run a hazard c. And with this agrées 12 E. 4. 17. in a writ of Entry sur disseisin of a disseisin made to the Infant himself And 41 E. 3. tit Age 39 in a VVrit of Right of a deforcement done to the Infant himself of land which he had by descent So likewise in Escheat and Cessavit and a writ of Right sur disclaimer brought by an Infant because he hath the Seigniory in possession which by Escheat Cesser or Disclaimer he might lose and in that Case also his Ancestor had no right to the land and therefore the Parol shall not stay for his non-age In like manner in a writ of Mesne brought by an Infant because the cause of Action and the wrong begins in the time of the Infant himself the Parol shall not stay c. 21 E. 3. Age 85. Temp. E. 1. Age 119. 7 E. 2. Age 140. Also in a Formedon in remainder albeit the Infant demands Fee-simple yet because his Ancestor whose Heir he is was never in seisin nor took explees and therefore in such Case he shall alledge explees onely in the particular tenant who had the estate upon which the remainer depended for this cause the tenant without plee cannot pray that the Parol may stay in as much as the remainder was never in the possession of any of his Ancestors and the Demandant himself is the first in whom it will vest and that shall have seisin of the land in demand c. It is otherwise in a Form in reverter causa qua suprà Co. l. 6. 8. b. 1 in Ferrers case 28 At the Common Law before the Statute of West 2. cap. 4. if one had suffered a recovery in any real Action against him by default if he were lawfully summoned Recovery by default and that there were no errour in the procéeding he had not any remedy but by writ of Right Howbeit the Law was otherwise in case of an Infant for he was therein excused by reason of his tendernesse of age and want of understanding Co. l. 7. 7. b. 4. in the Earl of
memoriae and yet doth the Law of Nature and Law of the Realme prohibits generally the beating of any but this special Case for the prevention of a greater mischief hath an exemption and a special priviledge Pl. ibid. b. 4. 35 In a praecipe quod reddat the Tenant shall excuse his default by the increase of Waters and yet every default is abhorced in Law Necessity â—â—cused a default because it is a contempt of the Court but for that he could not without peril of death appeare the necessity of the accident in such Case shall excuse him 1 Kings 21. Math. 12. Pl. ib. 19 a. 1. 36 The Law of God prohibited the eating of Proposition Bread Proposition Bread anâ— Eates of 〈◊〉 may be 〈◊〉 yet it was adjudged by CHRIST himself to be lawful for David to eat it in a time of necessity to prevent famine So also upon the like occasion was it lawful for Christs Apostles to pull the Eares of other mens Corne and to eat them And in our Law an Obligation per dâ—â—â—s or minas shall be avoided because it is done by compulsion Pl. 37. b. 4. Plats Case 37 If the Sheriffe of Middlesex suffer an in-voluntary escape of a prisoner and making fresh suit after him takes him in Surrey Pursuit upâ—â— an escape â— of a diâ—â—â— where he is not Sheriffe yet he may justifie the taking of him there So â—â—so if one come to distrâ—ine for Rent-service and the Tenant séeing him comming drives away his Cattle from off the land yet there the Lord may pursue them within view and retake them in whatsoever land they are albeit they are out of his Authority For the pursuit and the possession after shall be adjudged as a possession with continuance when it is for Rent-service But it is otherwise for damage fesant and so the diversity is held 16 E. 4. fol. 10. yet H. 6. R. 2. abr per Fitz. Rescous 11. it is held also justifiable for damage fesant and all this is allowed for the necessity of the occasion and in favour of right and justice â—â—it patent â—ed in the 〈◊〉 Court 38 If a man hold as of a Seigniory in grosse F. N. B. 3. c which hath not a Mannor where the Lord may kéepe any Court in such Case the Tenant may sue Briefe de droit patent in the Kings Court and the Lord shall not have any Action against him for it nor by any meanes annul his Action because he hath not any Court to hold plea thereof And therefore he is compelled by necessity to sue immediately in the Kings Court. 〈◊〉 of right 〈◊〉 Dower suâ—â— in the â—B 39 If the Baron give part of his Mannor in taile to hold of him and die F.N.B. 8. a. b the Feme shall sue her writ of right of Dower in the Court of the Heire of the Baron against the Donée in taile and the writ shall be directed to the Heire But if the Baron make a Gift in taile of all the Land he hath and die here the Heire of the Baron cannot kéep any Court because he hath but a Seigniory in grosse and therefore in such Case it séemes reasonable that she shall have her writ of right of Dower against the Donée in taile directed to the Sheriffe and returnable in the Common Place and there shall be this Clause in the Writ Quia B. Capitalis Dominus feodi illius nobis inde remisit Curiam suam So it is also if the Baron lease all his Land for life there also the Feme shall sue such a Writ against the Tenant for life returnable in the Common Place because the Heire of the Baron in that Case also can kéeps no Court having but a Seigniory in grosse And in these Cases and the like the Lord shall not sue a prohibition to the Iustices of that Court that they should not procéed in such pleas for that the Feme in such Cases is forced by necessity to do it 40 If an Infant or Feme covert present not within 6 moneths Fitz. ib. 34. c the Bishop shall present by laps for there is a necessity the Church should be served 41 Where wast is made by the Kings enemies or by tempest Fitz. ib. 59. l. the Tenant shall not be punished for it 42 Ubi aliud suader necessitas cessat humanae constitutionis cessat voluntas Nomothetae Erasm in Coll. Conv. Proph. 43 A Dedimus Potestatem was granted to receive an Attorney for the Defendant in a Quid Juris clamat Dier 135. pl 15 3 4. P. M. albeit no former President could be found for it and this was allowed per Curiam by reason of the weakenesse of the Defendant who could not appeare in person without manifest danger of life â—â—â—ing a 〈◊〉 it Sea 44 Hob. 13. Bridgmans Case Hob. 13. per Hobart concerning the Masters impawning of another mans Ship at Sea for necessity of fact or other provision â—â—â—er by a â—â—tick 45 An Action of Trover and Conversion may be brought in a Lunatiques owne name Ho. 215. Cocks and Darson for graine sowne upon his Copi-hold land and caried away by a stranger and that for necessity because it can be brought in no mans name else 111. 2 Conveniencie Co. l. 9. 49. a. b. The Earl of Shrewsburies Case Vide Max. 184 cap. 5. 1 If a Parkship be granted to an Earl Dignity respected for conveniencie without words to make a Deputy yet he may kéep it by his servants for the Law doth allow divers acts for convenience in respect of the Dignity of the person as if Licence be given to a Duke to hunt in a Parke the Law for conveniencie given him such attendante as are requisite to the Digntiy of his Estate Vide 12 H. 7. 25. 13 H. 7. 10. So when a Bishop is riding forth or upon the way it is not convenient for his Estate and Degrée to be then inforced to examine the Ability of a Clerk but he ought to attend his convenient leasure 14 H. 7. 21. 15 H. 7. 7. 8. Co. ibid. and Mirror of Justices cap. 1. §. 2. 2 At the first institution of this Monarchy an Earl was Praefectus The liâ—e or Propositus Comitatus for so the Saxon word Shire-reeve imports The Romans called him Satropas from the Persians viz. Praefectus Provinciae And the Sheriff at this day called Vice-comes quasi vicem generis seu vicariis Comitis hath the whole authority for the Administration and Execution of Iustice that the Earl had and if the King do now by his Letters Patents commit unto the Sheriff custodium Comitatus without expresse words to make a Deputy yet he who comes in the place of the Earl may make a Sub-vice-comes viz. a Deputy who was in times past Seneschallus Vice-comitis and by West 2. cap. 39. Sub-vice-comes and by 11 H. 7. cap. 15. Shire-Clerk
of Malbridge c. 9. one is to do the service and the rest are to contribute the same Law being also of their vendées by equity there if any part come to the Lord either by Act of the party or of Law yet the whole service is gone for there contribution failes and the Law will rather suffer things against the principles of the Lord then a man shall be without remedy according to Rule 144. â—verance of Mannor 46 If there be grant and render by fine of the demesnes of a Mannor here albeit this be done in an instant Co. l. 6. 64. a. in Sir Moyle Finches Case so as there was no transmutation of any possession yet the demesnes being once by Act of the party absolutely severed in the fée-simple from the services of the Mannor the Mannor is destroyed for ever So likewise if a man hath a Mannor and he grants part of the demesnes and part of the services to another he shall not have a Mannor for a man by his owne Act cannot create a Mannor at this day But if there be two Coperceners of a Mannor and upon partition the demesnes are allotted to one and the services to another here albeit in this Case there is an absolute severance yet if one of them die without issue and the demesnes descend to her that hath the services the Mannor is again revived because upon the partition they were in by Act in Law and the demesnes and services were again revicted by the Act in Law So also if upon the partition an advowson appendant be allotted to one and the Mannor unto which it is appendant be allotted to the other and after one of them dies without issue whereby the Law unites them again in this Case the advowson which was once severed shall be again appendant to the Mannor Also if two Coperceners have a Mannor and upon the partition each hath parcel of the demesnes and parcel of the services here because each of them is in by Act of Law each of them hath a Mannor In Office not â—â—â—isable for â— yeares 47 The Office of Marshal of the Kings Bench cannot be granted for terme of yeares Co. l. 9. 97. a. in Sir Geo. Requols Case because being then a Chattel and an Office of trust by the death of the Lessée it may happen to fall into the hands of such persons as are not fit to be trusted with that place but yet by Act of Law a term which is but a Chattel may be in such an Office as appeares in 5 E. 4. 3. for the Duke of Norfolke had an Estate-taile in an Office holden of the King in Capite and dies his heire within age and it was found by Office In this Case the King had a Chattel in that Office viz. during the minority and in that Case if the King die it shall discend to the next King and shall not go to his Executors or Administrators for an Act in Law shall not introduce any inconvenience And the King having such an Office during the minority it séemes he cannot grant it for life or yeares or during the minority because that may prove inconvenient for the reasons above alleadged but at will he may grant it for that is no certaine Estate A Seigniory c. suspended 48 By the Act of the party whether right or wrong all a Seigniory c. may be suspended Co. lib. 9. 135. a. 3. in Ascoughs Case And therefore if the Lord or Lessor disseise or out the Tenant or Lessée of any part all is suspended also if a Commoner take a Lease of any part of the land in which c. all the Common is suspended But by Act of Law a Seigniory may be suspended in part and in esse for the other part So if a Lord seise the Wardship of the Land of his Tenant by Knight-service now is the Seigniory suspended but if the guardian endow the Feme of the Tenant of a third part of the Tenancy now is the third part of the Seigniory revived and the Tenant in dower shall be attendant upon the guardian for the third part of the services because Tenant in dower is in by Act of Law and for the same reason if a man seised of lands in fée takes Feme and enfeoffes another the feoffée grants a rent-charge to the Baron and Feme and to the heirs of the Baron the Baron dies the Feme is endowed of a third part of the land out of which the rent issuing in this Case the third part of the rent which the Feme hath for life is extinct and two parts of the rent remaines to her issuing out of the other two parts of the land for although it be a rent-charge which regularly cannot be apportioned yet by Act in Law it shall be apportioned so likewise if the Guardian in Knight-service seise the land of one co-heire within age the other being of full age there the Seigniory is suspended for a moity and in esse for the other moity And if there be two Coperceners of a Seigniory and the one disseise the land Tenant or comes to the land by defeasable title the other may distraine her for her moity of the Seigniory because these also come in by Act of Law Co. l. 10. 94. b. 3. Doctor Leyfeilds Case 49 When the Interest of a thing is gained by Act of the party Shewing forth of a deed in defence of the title thereof the party interessed must produce to the Court the Déed by which he claimes So in Trespas the Defendant pleads the Quéenes grant of the Rectory of O. to A. but shewes not the Letters Patents this is error because this Estate being gained by the Act of the party â—e might in time have provided for his defence but when a particular Estate or interest is created by Law the party interessed shall not be forced to shew forth the Déed So guardian in Chivalry or Tenant in dower may plead a release without shewing it There is the same Law also of Tenant by Statute Marchant Staple Elegit c. because they also come to the possession by execution of Law and against the will of the terre-tenant who hath the déed for Judiciâ—m redditur in invitum Co. l. 10. 104. b. 3. in Alfridus Deubawdes Case 50 A Tales ought not to be granted after a full Iury appeares and is sworne and yet if a Iury be charged A Tales granted and after and before Verdict given in Court one of them is taken away by death which is the Act of God in that Case a Tales shall be awarded and no new venire facias and with this accords 12 H. 4. 10. so likewise if any of the Iurors impannelled die before they appeare and that appeares by the Sheriffs return the Pannel shall not abate but if néed be a Tales shall be awarded Vide 20 E. 4. 11. F. N. B. 31. m. 51 If a man usurpe
juridicus Co. Inst pats 1 135. a. for that ought to be consecrated to divine service Pleas. 2 No plea shall be holden Quindena Paschae F. N. B. 17. f. because it is alwayes the Lords day but it shall be crastino quindenae Paschae Finâ—â— 3. Vpon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lords day Finches Ley pag. 7. all the proclamations are erroneous for the Iustices may not sit upon that day being a day exempt from such businesses by the Common Law for the solemnitie of it to the intent that all people may apply themselves that day to prayer and serving of God 1 El. Dyer 168 12 E. 4. 8. 3 If a writ of Scire facias out of the Common place beare Teste upon the Lords day it is errour because it is not dies dominicus in Banco Errour 4 No sale upon the Lords day shall be said a sale in Market overt to alter the propertie Sale 6 Gravius est divinam quam Temporalem laedere majestatem Co. l. 11. 29. b. Poulters case 1 Regularly Clergy a man shall by the Common law have the benefit of Clergie for any felonie Howbeit if a felon be also an Heretique Iew Sarazen or Infidel he shall not have it F. N. B. 269. b. Br. Heresie 1. Co. l. â— 58. a. Specots case 2 Heresie is an offence committed against the Majestie of God by a presumptuous oppugning of an Article of Faith or the like Heresie And therefore at the Common law this offence was punished by a more terrible and grievous mulct than any other felony whatsoever and indeed than Treason it selfe viz. by fire and faggot Howbeit to determine what is Heresie falls not within the Conusance of temporal Courts but is wholly left to the Ecclesiastical Iurisdiction for it appears by the writ de haeretico comburendo that at the Common law before an heretique could be committed to the Lay-power to be burnt he was to be convicted in a Provincial Synod before the Archbishop and his Clergie and then if he did either refuse to abjure the heresie or having abjured it upon a relapse were convicted again by such a Synod of that or any other heresie he was then delivered to the secular power to be punished by fire and faggot and no Sanctuarie could priviledge him Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocesse and if the Sheriffe were present at his conviction the Bishop might deliver him to the Sheriffe to be burnt and that without the Kings writ but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffes Turnes and Léets and from thâ—nce to be certified to the Ordinarie which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1 2 P. M. 6. which revived 2 H. 4. 15. an heretique was punishable at the Common Law as above is expressed but by 1 El. 1. the Statute of 1 2 P. M. was repealed and then by 1 El. the Quéenes Commissioners heretofore called the High Commission Court had power to judge of heresie but they were thereby also restrained to adjudge nothing Heresie but what was so adjudged by the holy Scriptures the four first General Councils or the Parliament with the assent of the Clergie in their Convocation Howbeit at this day the Iurisdiction of Bishops being taken away and that clause of 1 El. repealed by a later Act it séemes at present there is no law to punish that offence See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264 and 340. Rast Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit observe that the said Statutes made in the raignes of H. 4. and H. 5. were chiefly intended against such as did then begin to discover the Pride Lucre and errors of the Church of Rome and in dirision were termed Lollards as you may read at large in the Book of Martyrs and elsewhere in divers other authors as Sleiden Brightman c. The Kings command against Law not to be obeyed by the Judges Stat. 18. E. 3. Stat. 3. 8. 3 One part of the Iudges oath is that they shall not deny right though it be by command from the King which if they breake they will be found guilty Laesae Majestatis divinae And therefore in such case they ought rather to disobey the Kings commands then thereby incurre the high displeasure of Almighty God for Gravius est divinam c. And to the end that the Iudges might be the better protected from this danger Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Lawes whereby the Iustices have power to procéed Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrarie no though it be under the Great or Privie Seal And therefore if the King write to the Iustices to prorogue an Assize because the defendant is in his service F. N. B. 153. h. yet the Iustices ought to procéed and not to cease for any such letter so likewise in an Assize the Bishop certifies Bastardie 29 E. 3. 14. Judgment 117 and the Kings letter is sent to the Iustices to cease because the certificate was suspicious notwithstanding which letter they tooke the Assize and afterwards albeit the Chancellor reversed the taking of the Assize in the Council because they obeyed not the letter yet notwithstanding that the Iustices gave Iudgement upon the Assize 22 F. 3. 12. Judgment 185 Also in dower the tenant was essoined and had farther day given at which the King sends a letter to excuse the tenants apperance alleadging that he was at Callis in his service Howbeit the Iustices gave no regard to it but proceeded notwithstanding that letter Nor by the Sheriff 4 The Sheriffe also 14 E. 3. Returns del Viscont 8â— who is but an Officer or Minister to the superiour Courts of Iustice ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King least he likewise incurre the like danger by breaking his oath And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force An Exigi facias went forth against him to the Sheriff who returned that the King had certified him by writ that he had pardoned the trespasse and imprisonment commanding him that he should desist and that therefore he had not executed the writ whereupon saith Wilby the writ ought first to have béene sent to us that we might have commanded the Sheriffe to cease for the Sheriffe
general words which are more remote and not to the words of qualification which are néerer unto them Pretended rights 3 The Statute of 32 H. 8. 9. provides Pl. Co. 88. 6. in Partridges case that none shall buy rights of titles in land unlesse such person c. have béene in possession of it or of the reversion or remainder of it or have taken the rents and profits of it by the space of one whole yeare next before Here these words by the space of one whole yeare shall be onely referred to the sentence next before viz. the taking of the rents and profits Abbey Lands Leases 3 The Statute of 31 H. 8. 13. ordaines Pl Co. 107. a Fulmerstons case that farmers of Abbey lands which had then Leases in being should enjoy them for 21 yeares from the time of the making of such leases if so many years were therein limited or else they should enjoy them for so many yeares as in such lease or leases were expressed so that the same lease or leases exceeded not 21 yeares Here this last sentence so that c. relates to the clause next going before it and not to the first Ad proximum antecedens fiat relatio Alienation of an entail 4 Sir Th. Cheyney in 1 El. deviseth c. to H. his sonne Co. l. 5. 68. a. The Lord Cheyneys case and to the heires male of his bodie remainder to Th. Cheyney of D. and the heires male of his bodie upon condition that he or they or any of them shall not discontinue The question was whether or no H. the sonne was included within these words he or they And it was resolved by Wray and Anderson after conference had with other Iudges that those words should not be referred to the grant made to H. the sonne but onely to the grant made to Th. Ch. of D. Tithes 5 Qu. El. grants to I. S. Totam illam portionem decimarum Co. l. 4. 35. a. Bozoms case c. in L. in com N. cum omnibus aliis decimis suis quibuscunque in L. in dict com N. nunc vel nuper in occupatione I. C. Here these last words nunc vel nuper c. referre to the whole sentence and not to the later part of it onely viz. cum omnibus aliis c. 1 Because the first words are Totam illam portionem Decimarum c. So that this pronoune illam sheweth plainly that there ought to be subsequent words to explain and reduced into certaintie what portion by the intention of the Qu. shall be granted The reference of illam viz. that which was in the occupation of I. C. And therefore this pronoune illam is not satisfied untill you come to the full end of the sentence 2 This Conjunction cum omnibus aliis c. couples the last words with the former and makes the subsequent words referre to the whole sentence Vide supra Max. 8 Case 11. Dyer 46. b. P. 31 32. H. 8. 6 An Indictment found in this manner that Eliz. fuit in pace Indictment c. quousque A. vir prefatae Eliz. de D. in com S. yeoman did kill her is good for the addition yeoman must of necessity referre to the husband because a woman cannot be a yeoman But an Indictment Quousque Alicia S. de D. in comit S. uxor I. S. Spinster c. is not good again Alice S. for there Spinster being an indifferent addition both to man and woman must referre to I. S. being the next antecedent and so the woman hath no addition 9 E. 4. 48. so likewise an indictment against I. S. serviens I. D. de D. in com Midd. yeoman is not good for servant is no addion and yeoman referreth to the Master which is the next antecedent Dyer 15. b. 28 H. 8. 7 A man makes a lease for life the remainder in taile In forma pâ—dicta the remainder to I. S. in forma praedicta this shall not referre to the estate which is the next before but to the first estate because there wants the word heires to cause him to have an estate taile Dyer ibid. 8 A man is bound to abide the award of I. S. who awards Relation of time that the one party shall pay before such a feast 10 l. to the other and that then the other shall make him a release This word then shall not be referred to the feast but to the time of payment of the money Dyer ibid. 9 In a Cui in vita brought by a feme the writ is Cui in vita Cui ipsa in vita sua contradicere non c. this word sua shall not be referred ad proximum antecedens viz. ipsa but to the baron 11 The Law delighteth in apt expressions Co. Inst pars 1 302. a. 1 Whensoever a Confirmation doth enlarge or give an estate of Inheritance there ought to be apt words as Littl. expresseth them Sect. 533 used for the same Apt words Co. ibid. 297. a. 2 If a disseisor make a lease for 100 yeares Confirmation the disseisée may confirme parcel of those years but then it must be by apt words for he must not confirme the lease or demise or the estate of the Lessée for in that case though it should be but for an houre it gives the disseisor fee simple for ever as you have it in Littl. Sect. 519 and 520. and then also the addition of parcel of the terme would be repugnant if the whole were confirmed before but the confirmation must be of the Land for part of the terme Co. l. 1 85. a. in Corbets Case 3 Iudges ought to know the intention of the parties by certaine and sensible words Certain and uncertain words which are agréeable and consonant to the Rules of Law And therefore if land be given by déed to two to have and to hold to them haeredibus this is voide for the insensibility and uncertainty And albeit they have a clause of warranty to them and to their heires this shall not make the first words which are uncertain and without sense to be of force and effect in law although his intent appeare for his intent ought be declared by words certaine and consonant to law Co. l. 6. 26. a. Sharps Case 4 If one saith thus unto another Improper words I do here demise unto you my house for terme of your life this is a good beginning if actual livery be made accordingly or if he use apt words which may amount to so much but without livery or such words such a demise doth amount but to a Lease at will Vide Thorough goods case Co. l. 9. 137. b. Co. l. 6. 43. a. 5 In Sir Anthony Mildmayes case it was observed Compendiousness that in the Proviso there to restraine the tenant in tail from alienation found at large by the speceial
Montjoys case 5 Donée in taile is restrained by a particular Act of Parliament Warranty no barre quòd non faceret aliquid in nocumentum c. haered c. nisi pro juntur uxor c. reddend verum antiquum reddit c. Here if the ancient reservation was of gold he cannot reserve silver if two farmes were anciently let to several tenants for several rents he cannot let them both to one man for one intire rent nor demise parcel of the farme rendring rent pro rata nor reserve it payable at two feasts when it was before payable at four Howbeit he may reserve eight bushels of wheat instead of a quarter reserved before for they are all one in qualitie value and nature Co. l. 6 65. b. Sir Moile Finches case 6 The change of the name of a thing cannot alter the thing it selfe Reservation of rent but the new name may be used by the owner in conveyances praecipes c. without prejudice And therefore in Sir Moile Finches case in the 6. Rep. it was agréed that Exceter-house in the Strand and Dorset-house in Fleet-street having then within thrée yeares before gained those names might be well enough known to their neighbours by the same names and distinguished from all other houses and might also by those names be demanded in praecipes c. so in a praecipe brought of a Mannor in com Bedd by the name of the Mannor of Asple whereas it had béene formerly and was still called Asple guise here the tenant after the view demanded judgement of the writ unto which the demandant said the Mannor put in view was also known by the name of Asple 41 E. 3. tit Maint de briefe 49. 8 H. 6. 32. and it was adjudged that such a name gotten by the knowledge of the Country is sufficent Change of names without the true and proper name for in this sense it is true De nomine proprio non est curandum dum in substantia non erretur quia nomine mutabilia sunt res autem immobiles Co. l. 9. 110. b. in Meriel â—reshams case 7 Albeit Covina of it selfe and ex vi termini Corin. ought to be betwixt two yet when it is coupled with fraud which may be committed by one alone the Court shall adjudge upon the matter and not upon the strict Etymologie of the word for Plerunquè dum proprietas verborum attenditur sensus verborum amittitur Co. l. 11. 34. a. in Alexander Powlters case 8 The Statute of 23 H. 8. 1. House-burniâ— takes away Clergie from the House-burner the Statute of 1 E. 6. 12. gives the benefit of Clergie to all felons save onely for Murder Poysoning Burglary Robberie Horse-stealing and Sacriledge so as House-burning being in this Statute casus omissus such an offender séemeth thereby to be allowed his Clergie Neverthelesse because the Statute of 25 H. 8. 3. takes away Clergie from the House-burner that standeth mute challengeth above 20 or answereth not directly albeit the offence be committed in another County then where the offender is tried And likewise because the Statute of 4. and 5. P. and M. 4. takes away Clergie from the accessories of that offence it is adjudged that according to the intention of the makers of the Statute of 1 E. 6 House-burning is included within the meaning of that Act although it is a penal Law and quite left out of the letter of the same Act. Letters omitted 9 In 17 El. Dyer 342. a. Co. l. 9 48. a. The Earl of Shrewsburies case Co. l. 2. 17. a. Lauds case The four first letters in the name and stile of H. 7. viz. H. R. A. F. for Henricus Rex Angliae Franciae c. were left out of his Letters patents made to Simon Digby yet adjudged good And in the 38 H. 6. 33. A count in which it was alleadged that T. W. resignavit c. in manus J. Episcopi c. loci illius Ordinarii And exception was taken because it was not in manus Johannis Episcopi séeing the Letter J. signified nothing but yet the Count was adjudged good Wast 10 The Statute of Glocester cap. 5. Co. Inst 1. 54. b which gives an action of wast against the Lessée for life or yeares which lay not against them at the Common Law speaketh of one that holdeth for terme of yeares in the Plural number and yet it appeareth by Littleton Sect. 67. that although it be a penal Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall also be within the same remedie although it be out of the letter of that Law 11 Vide Pl. Co. 109. b. sequent Indictment 11 False latin shall not quash an Indictment or a Count Col. l. 5. 121. a. 4. in Longs case for albeit an original writ shall abate for false Latin as it is holden in 9 H. 7. 16. 2 H. 4. 8. 44. E. 3 18. 10 E. 3. 1. yet Iudicial writs or a fine shall not be impeached for false Latin as is held in 9 E. 3. The same Law of an Indictment as praefato reginae for praefatae mamilla for mammilla c. Vide suprà 13 4. False Latine 12 In the 14 of E. 3. the King grants licence to found in Oxford Co. l. 11. 8. b. Doctor Ayries case an Hall under the name of the Hall of the Scholars of Oxford the Founder calls it the Hall of the Queen They present to a Church by the name of Provost Fellowes and Scholars of the Colledge of the Queen in the Universitie of Oxford The Incumbent devises the Rectorie which they confirme by the name of Provost Fellowes and Scholars of the Hall or Colledge of the Queen in the Universitie of Oxford Misnamer of a Colledge Notwithstanding these variances the presentation and confirmation are both good for a small variance is not to purpose if the description be such that no other can be intended as Abbot Richerd grants by the name of Richard 15 Talis interpretatio fienda est ut evitetur absurdum inconveniens ne judicium sit illusorium Pluralities of Benefices By the Statute of 31 H. 8. 13. Co. l. 4. 79. a. Digbies case if a Parson or Vicar having one benefice with cure of soules being worth eight pounds per annum or above take another and be instituted and inducted in the possession of the same c. the first shall be void Here albeit the Statute saith plainly instituted and inducted yet if he be onely instituted into it he shall lose the first before induction and this is in regard of the great inconvenience that would insue if the first benefice should not be void by institution to the second by force of the said Act for then one may be instituted to divers benefices with cure the great charge
servant unto whom they bare no former malice yet was it adjudged Murder because of their murderous intention which was the cause of his death it is otherwise when one having no malicious intent joynes himselfe with others that commit a murder for that is but Man-slaughter in him that so suddenly joynes with them 44 E. 3. 14. b. 14 Ass Pl. 20. Finch 10. 52 A man makes me sweare to bring him money to such a place Terrour or else he will kill me I bring it accordingly this is felony So if he make me swear to surrender my estate unto him and I do so afterwards this is a disseisin to me 21 E. 4. 68. b. Finch 10. 53 One imprisoned till he be content to make an Obligation at another place and afterwards he doth so being at large The like yet he shall avoid it by dures of imprisonment 3 E. 3. 84. Finch 10. 54 Outlawry in trespass is no forfeiture of land Outlawry in trespass in forfeiture as Outlawry of felony is for although the not appearing be the cause of Outlawry in both yet the force of the Outlawry shall be estéemed according to the heinousness of the offence which is the principal cause and foundation of the processe Villenage 55 A man and a feme sole have a villein Finch 10. and afterwards enter-marry and the villeine purchaseth land they shall not have the land by entierties but by moities Ioyntly or in Common as they had the villein An action for goods bailed 56 If one deliver goods to another 22 H. 6. 1. Co. l. 10. 51. b. Lampets case and after the Bailor release to the Bailée all actions the Bailée dies in a writ of Detinue brought against his executors they shall not take advantage of that release for that determines by the death of the Bailée and the action given against the executors is a new action although of the same nature grounded upon their own deteiner Election of an Annuity or distress 57 If a rent charge be granted to A. and B. and their heires Co. Inst pars 1 146. a. 1. A. distreineth the Beasts of the Grantor who sueth a Replevin A. avoweth for himselfe and maketh Conusance for B. A. dieth and B. surviveth Here B. shall not afterwards have a writ of Annuity for the election and avowry for the rent of A. barreth B. of any election to make it an annuity albeit he assented not to be the avowry because in that case the act of one joyn-tenant barreth the other and the election takes his rise from several causes viz. the land or the person and therefore when the election once fixeth upon the land it cannot afterwards charge the person It is otherwise when a man may have election to have several remedies for a thing that is méerly personal or méerely real from the beginning 28 E. 3. 98 b. 27 E. 3. 89. b. As if a man may have an action of accompt or an action of debt at his pleasure and he bringeth in an action of accompt and appeares to it and after is non-suit yet may he have an action of debt afterwards because both actions charge the person The like Law is of an Assise or of a writ of Entry in the nature of an Assise and the like 15 E. 4. 16. 10 E. 4 5. Co. Inst pars 1 295. a. 3. Wager of law 58 In an action of accompt against a receivour upon a receipt of money by the hand of another person for accompt render unlesse it be by the hands of his Wife or Commoigne the defendant shall not wage his Law because the receipt is the ground of the action which lyeth not in privity betwixt the Plaintife and Defendant but in the notice of a third person and such a receipt is traversable a 33 H. 6. 24. 13 H. 7. 3. a. 22 H 6. 41. 1 H. 6. 1. b. 8 H. 6. 11 c. But in an action of debt upon an arbitrament and in an action of Detinue by the bailment of anothers hand the Defendant shall wage his Law because the Debet and the Detinet is the ground of those actions and the contract or bailment though it be by another hand is but the conveyance and not traversable Descent to Daughters yet no Coparâ—eners 59 Land is given to a man and his wife and the heires of their two bodies and they have issue a daughter the wife dies Littl. § 662 663. the husband takes another wife and hath issue another daughter and discontinues the taile and after disseiseth the discontinuée and so dies seised Here the land shall descend to both the daughters but yet they are not Coparceners because they are in by several Titles viz. the eldest is remitted by force of the intaile to the one moity and the other hath Fée simple by force of the descent from her father but in this case the eldest shall out the youngest by her action of Formedon Recovery in value 60 If the heir of the part of the mother of land Co. Inst pars 1 13. a. 1. Pl. Co. 292. 515 whereunto a warranty is annexed is impleaded and vouch over and judgement is given against him and for him to recover in value and dieth before execution the heir of the part of the mother shall sue execution to have in value against the vouchée for the effect ought to pursue the cause and the recompence shall ensue the losse Co. ibid. 201. b. 3. 61 He that will take advantage of a re-entry for non payment of rent must make demand of the same upon the land Demands upon the land because the land is the principal debtor for the rent issueth out of the land and in an Assise for the rent the land shall be put in view and if the land be evicted by a title paramount the rent is avoided and after such eviction the person of the Feoffée shall not be charged therewith for the person of the Feoffée was onely charged with the rent in respect of the grant out of the land c. Howbeit Homage or any other special corporal service must be done to the person of the Lord and the tenant ought by the Law of convenience to séek him Co. ibid. 210. a. 1. to whom the service is to be done in any place within England for that and the like services are due and issue out of the land in respect of the person c. F. N. Br. 150. d. 62 If a man recover in value against the baron by warranty of the ancestor yet the feme of the baron shall be endowed Dower because the recovery was had by force of the warranty made and not by reason of any eigne title to the land Dyer 13. 62. 28 H. 8. 19 E. 3. 63 If land be given in Frank-marriage Divorce and after the Donées are divorced the party by whom the
thereof So likewise if the Son and heir apparent of a Baron retein a Chaplain and give unto him his Letters under his hand and seal and after his father dies and this Chaplain purchaseth a dispensation this retainer and those Letters will do him no good because they were not available at the first to make him capable Et quod ab initio non valet tractu temporis non convalescet Co. l. 4. 107. b. 3. Adams and Lamberts case H. 6. 7. E. 6. Dyer 81. 26 Pope Urbane at the request of Ralph Baron of Greystock A void foundation of a Colledge founded a Colledge of a Master and six Priests to be resident at Greystock and assignes to each of the Priests five marks per annum besides their bed and chamber and to the Master 40 l. per annum And upon the Statute of 1 E. 6. 14. it was certified in the Book of First-fruits and and Tenths Rectoriam Collegium de Greystock But it was resolved by all the Iustices that this reputative Colledge was not given to the King by the said Act because it had no lawfull beginning nor so much as the countenance of a lawfull beginning for the Pope cannot found or incorporate a Colledge within this Realme nor assigne or give Licence to assigne any temporal livings unto it but it ought to be done by the King himselfe and by no other Co. l. 5. 42. Codwels case 27 In appeal of Mayhem betwixt John Codwel Plaintife A void Panel and Thomas Parker Defendant the parties descend to issue and the Iury finds for the Plaintife and now it was moved in arrest of Iudgement that there was variance betwixt the Panel of the Venire facias and the Distringas and Postea in the name of one of the Iury that appeared and gave the verdict for in the Panel of the Venire facias he was named Palus Cheale And in the Distringas and in the Postea it was Paulus Cheale And because the name of a Iuror in the Venire facias was mistaken the Iudgement was arrested But if he had béen well named in the Panel upon the Venire and misnamed in the Distringas or Postea upon examination it might have béen amended because the Venire facias and Panel are the beginning and ground of the other subsequent Processe A void Presentation 28 D. was seised of a Mannor Co. l. 6. 50. a. 4. Boswels case 16 E. 3. Tit. Quare impedit 67. Adams case unto which an Advowson was appendant and dies the Mannor descends to E. an Infant the Church becomes void A. presents during the nonage of E. who at full age enfeoffes F. of the Mannor and after the Church becomes void againe and F. presents whereupon the Assignée of A. brings a Quare impedit And it was adjudged that by the feofment of E. when he had attained his full age the Mannor passed to the Feoffée but not the Advowson because by the usurpation the Infant was out of possession of the Advowson and he had but a right in it the usurpation being onely voidable by action which could not be transferred to a stranger And therefore the Advowson being not at all granted to F. he shall not gaine it afterwards by an usurpation A void grant of the Office of the Auditors of the Court of Wards 29 Quéen Eliz. in the 31 yeare of her Raigne grants unto Walter Tooke and William Curle Officium unius Auditorum Curiae suae Wardorum Co. l. 11. 4. a. 4. Auditor Curles Case c. habend dictis Waltero Willielmo alteri eorum conjunctim divisim pro termino vitarum suarum eorum alterius diutiùs viventis c. And afterwards King James in the 4 yeare of his Reign during the lives of the said Walter Tooke and William Curle grants the Reversion of the said Office to John Church-hill and John Tooke And in this case King James his grant was adjudged void because that Office being partly judicial and partly ministerial could not in respect of the Iudicial part be granted in Reversion for which the Rule is officia judicialia non concedantur antequam vacent And therefore being void at first it shall not be made good afterward for albeit William Curle one of the first Grantees and John Church-hill one of the last Grantees happen to die yet shall not John Tooke enjoy the Office by vertue of King James his grant because quod ab initio non valet c. A void grant of a Surveyorship â—0 John Bishop of Sarum grants the office of Surveyour of the Mannor of Sherborne unto Edward Green and John Green for their lives together with the fee of 6. l. 13. s. 4. d. per annum Co. l. 10. 61. b. 4. The Bishop of Sarums case whereas the office formerly used to be granted onely to one Edward Green dies as also the Bishop the fee is behind and John Green distreins for it but could not maintain the Avowry because the grant was void by the Statute of 1 Eliz. not printed which restraineth Ecclesiastical persons from making unusual grants c. and in this case albeit Edward Green being dead and John Green alone had the office when he distrained yet the grant being void at first shall not be made good by any subsequent Act that happens after to bind the Successor to perform it Quia quae malo sunt inchoata principio vix est ut bono peragente exitu quod initio non valet c. A void grant to a Colledge 31 A Grant by the Master and Fellowes of a Colledge to Queen Eliz. contrary to the Statute of 13 El. 10. being thereby made void Co. l. 11. 7â— a. 4. Magdalen Colledge case could not afterwards be made good by the Statute of 18 El. 2. for Confirmations of Grants made unto her because that can by no meanes be made good which was meerly void at the beginning Neither shall the general words of 18 El. enable any person to make any conveyance which by the Common Law was disabled as if an Infant had conveyed land to the Queen by Deed inrolled or had levied a Fine to her before the Statute of 18 El. and then that Act had been made yet the estates granted had not been confirmed by that Act because the Infant during his minority was absolutely disabled to make such a Grant and therefore notwithstanding that Statute he might have reversed the Fine by a Writ of Error as it was adjudged M. 32 and 33 Eliz. in B. R. by Wray and all the Court in Vaughans case So likewise if a man seised of land in fee had granted the land after his death Co. l. 11. 78. a. 3 The same case to the Queen her heires and successors the said Statute of Confirmation had not made such a grant good because it was against the Rules of Law 38 H. 6. 33. The Abbesse of Sions
the land be ancient Demesn again for the estate whereupon the confirmation should enure is defeated Finch 14. Absque impetione vasti determined 67 The priviledg of Absque Impetitione vasti is annexed to the privity of the Estate 3 E. 3. 44. per Shard and Stove so that if the estate Co. l. 11. 83. b. 3 Bowles case unto which that priviledg is annexed be changed the advantage of that priviledge is lost 5 H. 5. 9. a. And therefore if a man make a lease for years without impeachment of wast and after confirms the land to him for life he shall be ever after chargeable with waste 28 H. 8. Dyer 10. b. If a lease be made to one pur auter vie without impeachment of wast the remainder to him for the term of his own life Now is he punishable of wast for the first estate unto which the advantage of Absque impetitione vasti was annexed is drowned and gone and therefore that priviledge is gone also So it is likewise of a Confirmation c. Priviledge of 〈◊〉 by the courâ—â—sie lost by aâ—â—nation 68 It was adjudged in the case of one Ewens M. 28. Co. ibid. 29 Eliz. that where the Tenant in taile after possibility of issue extinct granted over his estate the Grantée was forced in a Quid juris clamat to attorn because by the assignment that priviledge was lost And this judgement was affirmed in the Kins Bench in a Writ of Error and with it also agrees 27 H. 6. tit Aide in Statham No prohibition of wast by the alienee of the heire against tenant in dower 69 The heire at the Common Law shall have a prohibition of wast against Tenant in Dower but if the heire grant over the reversion Co. ibid. his Grantée shall not have it for it appears in the Register fol. 72. that such an Assignee in an action of Wast against Tenant in Dower shall recite the Statute of Glocester and then by consequent he shall not have prohibition of Wast at the Common Law for then he should not recite the Statute Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. Co. Inst pars 1 12. b. 4. 70 If a man be seized of lands as heire of the part of his mother Priviledg 〈◊〉 by a purchaâ—â— of the land and maketh a feoffment in fee and taketh back an estate to him and his heirs this is a new purchase and if he die without issue the heirs of the part of the father shall first inherit because the estate unto which the property of descending to the heirs of the part of the mother being by the change of the same estate destroyed that property it selfe is also destroyed So likewise if a man so seized makâ—th a feoffment in fee reserving a rent to him and to his heirs this rent shall goe to the heirs of the part of the father c. Co. ibid. 83. a. 2. Co. l. 4. 88. in Luthrels case 71 If there be Lord and Tenant by Castle-guard Castle-guard gone by aâ—â— nation and the Lord granteth over his Seignory to another In this case the Castle-guard is gone because the Grantee hath not the Castle which is the ground of the service For the same reason it is that if one holdeth of me as of my Mannor of D. by fealty and suit of Court if I grant over the services of this Tenant the suit is gone because the Grantée hath not the Mannor But if the Castle be wholly ruinated Si castrum sit penitùs dirutum yet the tenure remaineth by Knight service and it goeth in benefit of the Tenant as to the guarding of the Castle untill it be re-eedified but ward and marriage belongeth unto the Lord in the meane time Co. Inst pars 1. 53. b. 4. 72 After Waste done Wast made dispunishable there is a special regard to be had to the continuance of the reversion in the same state that it was in at the time of the Waste done for if after the Wast committed the reversion granteth it over though he taketh back the whole estate again yet is the Wast dispunishable So likewise if he grant the reversion to the use of himselfe and his wife and to his heirs yet the Wast is dispunishable and so of the like because the estate of the reversion continueth not but is altered and consequently the Action of Wast for Wast done before which consists in privity is gone also Co. l. 5 28. a. 3. in Middletons case 73 An Executor before probat may release an action Executor may release befoâ—â— probat not the Administrator albeit before probat he cannot bring an action for the right of action is in him So also if two Executors prove the Will and the third refuse yet he may release It is otherwise of an Administrator for if A. release and after take administration that shall not barre him because the right of action was not in him at the time of the release made Co. Inst pars 1 76. b. 3. 74 If there be Lord and Tenant A conditional wardship devested and the Tenant maketh a feoffment in fée of Lands holden by Knight service to the use of the Feoffée and his heirs untill the Feoffor pay unto the Feoffée or his heirs 100 l. at a time and place limited the Feoffée dyeth his heire within age Here the Lord shall have the wardship of body and lands conditionally For if the Feoffor pay the money and enter into the land the wardship of both body and lands is divested Vide pro ibid. Dyer 155. Pl. 20 4 5. P. M. 75 A. by Indenture enrolled in Chancery in consideration of money Use upon an use bargains and sels to B. the Mannor of D. to have and to hold to B. and his heirs to the use of A. for life the remainder to the use of B. in taile Here because the first grant to B. is an use by the Statute of 27 H. 8. and one use cannot be engendred out of another the limitation of the two last uses was adjudged void Dyer 186. 1. 2 3 Eliz. 76 A man gives land to two habendum eis pro termino vitae eorum Cestuy que 〈◊〉 eorum alterius diutiùs viventis ad usum A. B. pro termino vitae suae without more and the two Lessées die In this case it seemed to the Court of Common Pleas that the estate was determined because the estate upon which the use was created and raised was gone c. But Quaere if such an estate had béen made before the Statute of 27 H. 8. of uses Dyer 205. 7. 3 4 Eliz. 77 A writ of extent was awarded in the time of Quéen Mary Extent returnable Quindena Martini and the Writ is executed in the life of the Qu but before the return she dies and yet it was returned and a liberate was thereupon
another if the land which B. had in exchange be evicted from him by an eigne title B. shall enter upon the alienée of A. c. â—edi conâ—â—ssâ— implies â—arranty and 〈◊〉 covenant 4 If a man make a feoffment by this word Dedi Co. l. 5. 117. a. 3. Spencers case which implies a warranty the Assignée of the Feoffee shall not vouch but if a man make a lease for yeares by this word Concessi or Demisi which imports a covenant if the Assignee of the Lessee be evicted he shall have a writ of Covenant For the Lessee or his Assignee hath the yearly profits of the land which encrease by labour and industry and if he should lose the land he should also lose his labour and cost unlesse he were helped by implicite covenant â—ant of a â—ard 5 If the Grantée of a Ward be impleaded Co. l. 5. 18. a. â— Ibid. he shall vouch the Grantor because this word Grant in case of the grant of a Ward being a Chattel reall imports in it selfe a warranty c. Co. l. 6. 36. b. 1. Bishop of Bathes case 6 A. being Lessee for 60 years if he should so long live Lessee from Reversionâ— hath interâ—sâ— termini the reversion in B. and his heirs B. grants a lease to C. Habendum cum post sive per mortem sursum redditionem vel forisfacturam praedicti A. acciderit vacare c. for 60 yeares This last lease vesteth presently in C. in point of Interest and doth not depend in contingency to take effect in possession at the end of the first terme if by any of these accidents the first lease shall happen to be void For in this case these words which of them soever shall first happen are implyed in Law and the lease is not void for the uncertainty which of them will happen first neither hath the Lessee election to choose which of them he pleaseth as if the first Lessee surrender the last terme takes place immediately after such surrender c. Co. l. 7. 34. a. 4. Nevils case 7 If the dignity of an Earldome had been entailed to the heirs male A dignity â—â—â—feitable for treason befoâ—â— 26 H. 8. 13. it might have béen forfeited for Treason before the Stat. of 26 H. 8. cap. 13. by reason of a secret condition in Law annexed unto it for Earls are created for two purposes viz. Ad consulendum regi tempore pacis ad defendendum Regem patriam tempore belli And therefore they wear a Cap and a Robe in token of Counsel and are girded with a Sword to represent them gallant Champions and Cavalliers Now then when such a person against his duty the end of his dignity commits Treason against the King his dignity though entailed is forfeited by that condition tacitè annexed to his estate Vide 32. 17. Co. lib. 7. 40. Bedels case 8 A man by Indenture betwéen him and his wife of one part Bloud is a sâ—ficient consâ—deration to raise an use without expressing it 〈◊〉 his second son on the second part and his third son of the third part in consideration of natural affection and that the land may remaine in his blood covenants to stand seised to the use of himselfe for life after to his Feme for life after of the one moity to one son and of the other moity to the other son In this case the use accrues to the Feme although not named in the considerations of the deed because the expresse limitation of the use to her being his wife imports in it selfe a sufficient consideration c. and the rather because it is not repugnant to the déed So also if I covenant that in consideration of fatherly love and affection to my eldest son I will stand seised to the use of my eldest son for life or in taile and after to the use of my second son in taile and after to the use to such an one my cousin in fee Here albeit the consideration expressed in words respect onely the eldest son yet the consideration apparent in the déed in limiting the use to my second son or to my Cousin is sufficient in Law to raise an use In like manner if I covenant to stand seised to the use of my wife son or cousin this shall well raise an use without any expresse words of a consideration for in that case sufficient consideration appears c. Co. lib. 11. 25. a. Henry Harpers case Co. l. 8. 34. b. 2. Pains case 9 At the Common Law if lands had been given to a woman Tenant by 〈◊〉 courtesie and to the heirs of her body and she had taken husband and had issue and the issue had died and the Feme also had died without other issue by which the inheritance of the land reverted to the Donor In this case the estate of the Feme was determined and yet the Baron shall be Tenant by the Courtesie for that is tacitè implyed in the grant Co. l. 8 82. a. 4. Vivyors case 10 A. is bound to B. upon condition to stand to and abide the award of C. In an action of Debt brought by B. against A. the Defendant pleads that C. made no award the Plaintiff pleads What is to 〈◊〉 pleaded 〈◊〉 an arbitrement revoâ—â— that the Defendant discharged C. c. In this case the Bond is forfeit and the Plaintiff néed not aver that C. had notice of the Countermand for that is implyed in the words of the plea Revocavit abrogavit omnem authoritatem c. because without notice it is no revocation of the authority and therefore if there had not béen notice then the Defendant might have taken issue quòd non revocavit c. and if no notice were given to C. it would have béen found for the Defendant as if a man pleads quòd feoffavit dedit or demisit pro termino vitae that implies livery for without livery it could not be feoffment gift or demise for life And therefore there is a diversity when two things are requisite to the performance of an act and both things are to be â—one by the same party as in the case of feoffment gift demise revocation countermand c. and when two things are requisite to be performed by several persons as upon the grant of a reversion attornment is not implyed in it and yet without attornment the grant hath not perfection but inasmuch as the grant is made by one and the attornment is to be made by another it is not implyed in the pleading of the grant but in the other cases both things are to be done by one and the same party c. Bridges Bentleys case 21 H. 6. 3. accord 28 H. 6. 6. 6 H. 7. 10. To use a manual occupation implies a â—rade 11 James Wagoner was arrested at the suit of the Chamberlain of London Co. lib. 8. 129. a. 2.
is to be bound by it And yet if the Father be Tenant for life the remainder to the same in fee the father by covin and consent maketh a lease for years to the end that the Lessee shall make a feoffment in fee to whom the father shall release with warranty and all this is executed accordingly the father dieth Here this warranty shall not binde albeit the Disseisin was not done immediately to the son for the feoffment of the Lessee is a disseisin to the father who is particeps criminis So it is if one brother make a gift in taile to another and the Vncle disseise the Donee and enfeoffeth another with warranty the Vncle dieth and the warranty descendeth upon the Donor and then the Donee dieth without issue Here albeit the Disseisin was done to the Donee and not to the Donor yet the warranty shall not binde the Donor So likewise if the father the son and a third person be Ioyntenants in fee the father maketh a feoffment in fee of the whole with warranty and dieth the son dieth the third person shall not onely avoid the feoffment for his own part but also for the part of the son and he shall also take advantage that in this case the warranty commenced by disseisin though the disseisin was done to another c. Co. l. 5. 79. b. Fitzherberts case Co. ibid. 372. a. 4. 23 By the Statute of the 32 H. 8. cap. 36. Fine barres aâ— entail in reversion a fine with proclamations according to the Statute of 4 H. 7. cap. 24. shall barre the estate taile but not him in the reversion or remainder if he maketh his claime and pursue his action within five years after the estate taile spent c. Howbeit if a gift be made to the eldest son and to the heires of his body the remainder to the father and to the heires of his body the father dieth the eldest son levieth a fine with proclamations c. and dieth without issue this shall bar the second son for the remainder descended to the eldest and therefore what the father might have done by force of a fine the eldest son shall in this case also do c. Co. lib. 3. 84. The case of Fines Dalison 2 El. 7 Eliz. 24 If the Lessor enter for the condition broken Debt for rent after surrender c. or if the Lessee surrender unto the Lessor Here the estate and terme is determined and yet the Lessor shall have an action of debt for the arrearages due before the condition broken or the surrender made as appears in Fitz. N. B. 120. 122. 30 E. 3. 7. 6 H. 7. 3. b. contrary to the booke of 32 E. 3. tit Barre 262. which is not Law and this is in respect of the contract betwixt the Lessor and the Lessee Co. lib. 3. 23. b. 4. Walkers case 25 A man may prescribe in a Water-course leading to his Grist-mill Prescription 〈◊〉 a Waterhouse albeit it was of late time changed from a Fulling-mill to a Grist-mil Et vice versa because that alteration is not of the substance of the prescription but the Mill may be so described to shew the nature and quality of it and doubtlesse at first he might prescribe in the Water-course before any Mill was built Co. l. 4. 87. a. 1. Luttrels case Co. ibid. 26 If a man have Estovers either by grant or prescription belonging to his house Prescription 〈◊〉 Estovers c. although he alter and change the rooms and chambers of the house as to make the Hall to be the Parlour and the Parlour to be the Hall and such like alteration of the quality of the house and not of the house it selfe and without making any new Chimneys whereby the owner of the wood may suffer prejudice or albeit he make new Chimneys or an addition to the house yet spend none of the Estovers in thâ—se new Chimneys or in the part newly added doth in none of these cases destroy the ancient prescription for then many prescriptions would be destroyed There is the same law of Conduits Water-pipes and the like Also if a man have an ancient window in his Hall and after he convert his Hall to a Parlour or any other use yet his neighbour cannot stop it for he can prescribe to have a light in such a part of his house â— corporation â—ranslated enâ—oyes the ancient priviledges 27 If a Corporation hath Franchises and Priviledges by grant or prescription and after they are incorporate by another name Co. ibid. b. 1. as if they were Bailiffs and Burgesses before now they are Major and Cominalty or Prior and Covent before and after they are translated to a Deane and Chapter c. Although in these cases the quality and name of their Corporation is changed and especially in the case of the Prior and Covent for of Regular which are dead persons in the Law they are made Secular yet the new Corporation shall enjoy all the Franchises Priviledges and Hereditaments which the old Corporation had be it by grant or prescription for no man can be prejudiced by it c. A stranger â—ound by a cuâ—tome 28 In debt against an Administrator upon an Obligation Co. l. 5. 83. a. Snellings case the Defendant pleads that the custome of London is that the Administrator shall be bound to pay a debt upon a simple contract as upon an Obligation c. and that he had already payd I. S. c. And in this case it was adjudged that the Plaintiff being a stranger was as well bound by that custome as if he had béen a Citizen Vide 1 E. 4. 6. accord Presentation â—o an Advowâ—on 29 Winsor Plaintiff hath an Advowson of two parts Co. l. 5 102. Winsors case the Defendant of the third the Plaintiff presents one the Incumbent dies then in the time of E. 6. he presents one Parry who in the time of Quéen Mary was deprived quia conjugatus c. whereupon the Defendant presents his Clerke who 1 Eliz. was also deprived by Juell and other High Commissioners and the first sentence adjudged void and Parry restored the Clerk of the Defendant dies Parry also dies the Defendant presents because his Clerk was deprived whereupon the Plaintiff demurres And in this Quare Impedit judgment was given against the Plaintiff for albeit the Clerk of the Defendant was Parson for the time to all purposes and during the first deprivation Parry was not Incumbent yet when the second sentence came then was Parry incumbent againe by force of the first presentation institution and induction and there néeded no new institution c. And by force of the second sentence the Presentée of the Defendant was removed and Parry restored And therefore when Parry dyed which was the last Presentée of the Plaintiff the Defendant shall present as in his turn and by force of the second sentence Parry was
temporary and a disability absolute and perpetual As if a man be attainted of Treason or Felony this is absolute and perpetual disability by corruption of Blood and shall barre any of his posterity to claime any hereditament in Fée-simple as heire unto him or to any other Ancestor paramount him But when a man is onely disabled by Parliament without any attainder to claime any dignity for his life this is a personal disability for his life onely and his heire after his death may claim as heire to him or to any of his Ancestors above him c. And upon this diversity Thomas Lord De la ware Anno 39 Eliz. was restored to the place in Parliament originally belonging to his Family Wast by Baron 11 Where a lease is made to the Baron and Feme for terme of life or yeares the Feme shall not be punished for Waste F.N.B. 59. â— committed by the Baron after the Barons death M. 3. E. â— Battery 12 When a corporal hurt or damage is done to a man 12 H. 8. 12. as to beat him c. if he or the party beaten die the action is gone Finch 17. Covenant by Lessor 13 The Lessor covenants to pay quit-rents during the terme 1 2 P.M. 114. Finch 17. and dieth his Executors shall not pay them for it is a personal covenant which dieth with the person Debt against Executors 14 In debt against Executors who plead fully administred Dyer 32. 2 28 29 H. 8. and they gave in evidence to the Inquest that they had paid divers debts upon contracts made by the Testator whereas this suit was upon an obligation whereupon the Plaintiff demurres And it séemed to the Iustices that there was no cause to delay it because they were not compellable to pay such debts for that they die with the person and the Plaintiff had judgement de bonis testatoris Quit-rents 15 The Lessor covenants with the Lessée to pay and beare all quit-rents c. not naming his Executors or Assignes If the Lessor die Dyer 114. a. 60 1 2 P. M. his Executors are not bound according to the opinion of divers Iustices Tamen quaere Covenant implyed and expresse 16 If there be Tenant for life remainder in fée Dyer 257. 13. 9 Eliz. and Tenant for life demise for 15 yeares and die he in remainder enters and the termor brings covenant against the Executors of the Lessor upon the Demise onely which is but an implyed covenant and it was adjudged it would not lie albeit the lease were by Indenture unlesse it had béen broken in the life of the Testator it is otherwise also of an expresse covenant But an implyed covenant is personal and dies with him Vide Stat. 32 H. 8. 34. Note that if the heire out the termor of the father covenant lies against him upon the demise for the privity Vide Max. 55. Licence to retaile wines 17 Quéen Mary grants to one licence to sell Wines by retaile with a non obstante the Statute of 7 E. 6. 5. and doth not limit how long Dyer 270. 22. 10 Eliz. but there is a commandment in the Patent to the Officers to permit him to do it during his life And it was held by Dyer and Sanders that it was durante bene-placito onely and that the pleasure determined by the death of the Quéen the commandment ceased also by her death Warden of the Fleet. 18 Whitacres brings an action of Debt against the Executors of the Warden of the Fleet upon an escape in the life of the Testator Dyer 322. 25. 15 Eliz. and it was adjudged it would not lie because the offence was but trespasse which died with the person And by the Common Law debt did not lie against the Warden but an action upon the Case until the Statute of 1 R. 2. 12. which gives debt against the Warden but speaks neither of Heire or Executor It is otherwise where the recovery is in the life of the Warden 48 Things do enure diversly according to the diversity of the time Purchase by Inhabitants 1 The Parishioners or Inhabitants or probi homines de Dale Co. Inst pars 1. 3. a. 2. or the Church-wardens are not capable to purchase lands but goods they are unlesse it were in ancient time when grants were allowed to passe by such names Grant to commoners 2 An ancient grant by the Lords to the Commoners in such a waste Co. ibid. that a way leading to their Common should not be straitned was good but otherwise it is of such a grant at this day And so in ancient time a grant made to a Lord hominibus suis tà m liberis quà m nativis or the like was good but they are not of capacity to purchase by such a name at this day c. Co. l. 9 28. a. 3. in the case of the Abbot of strata Marcella 3 When an ancient grant is general obscure or ambiguous A charter interpreted as the Law was when it was made it shall not be now interpreted as a Charter made at this day but it shall be construed as the Law was taken at the time when such ancient Charter was made and according to the ancient allowance upon record Vide ibid. many authorities in the point Vide suprà 25. 22. Co. Inst pars 1. 21. b. 3. 4 If the Donor give lands in liberum maritagium reserving a rent Frankmarriage the fifth degree this reservation shall take no effect till the fourth degrée be past but after that time the rent shall be paid according to the reservation Littl. Sect. 19. Finch 18. Co. ib. 147. b. 1. 5 If a man grant a rent out of Black-acre to one and to his heires Rent-charge and seck and grant to him that he may distrain for this in the same acre for term of his life this is a rent charge for his life and a rent seck afterwards Diversis temporibus Co. l. 7. 24. b. 3. Buts case Co. ib. 171. a. 3. 6 Judicis officium est ut res ita tempora rerum Quaerere quaesito tempore tutus eris Co. ib. 178. a. 4. 7 A gift in Frankmarriage was before the Statute of Westm 2. Frankmarriage out of use a Fée-simple and since that Statute a Fée-taile So as it is true that the gifts do continue as Littleton saith Sect. 271. but not the estates for the estate is changed as appeares in the same Author Cap. Fee-taile And albeit Littleton saith Sect. 271. that such gifts have béen alwayes since used and continued yet now they are almost grown out of use and serve now principally for Moot-cases and questions in law that thereupon were wont to rise Co. l. 5. 119. b. 1. in Whelpdales case 8 When an obligation was once a deed Non est factâ—â— when a deed was and is no deed and after before
Lord Cromwel and one Andrews Mich. 14 15 Eliz. But if the Tenant maketh a lease for life or a gift in tail this is a continuance of the privity and estate in the Tenant in respect of the reversion that remaineth in him because in that case the sée was never out of him c. Co. l. 8. 75. b. 3. The Lord Staffords case Co. ib. 103. b. 2. 8 If the Tenant by Homage Ancestrel alien his land The like and the Alienée is impleaded and vouch the Alienor albeit he cometh in by fiction of Law to many purposes in privity of his former estate yet to this purpose he cannot come in as Tenant by Homage Ancestrel because of the discontinuance of the estate and privity for that the tenancy was not continued in the bloud of the Tenant And therefore Britton saith Britt 170. a. Et come ascun soit vouche per homage le Seignior tende à averrer que le tenement dount il est vouche fuit translate hors del sanke del primer purchassour per feoffment ou per ascune autre translation en tiel cas soit le tenant charge de voucher son feoffor ou ses heires c. Howbeit if the land were recovered against the Tenant upon a faint title and the Tenant recover the same again in an action of an higher nature Here the Homage Ancestrel remains because in that case the right was a sufficient mean to preserve the privity and continuance So it is also if he had reversed it in a writ of Errour Co. ib. 103. a. 4. 9 If Cestuy que use after the Statute of 1 R. 3. 1. Cestuy qâ—â— use and before the Statute of Uses 27 H. 8. 10. had made a feoffment in fée upon condition and entred for the condition broken he should have detained the land against the Feoffées for ever for that the estate and privity was for the time taken out of the Feoffées and thereby dissolved for ever Co. ib. 117. a. 2. 10 The Lord shall not take advantage of any obligation covenant Things in action or other thing in action made to the Villein because they lie in privity and cannot be transferred to others Neither shall the Lord have a thing in action by Escheat for the same reason Co. l. 10. 48. a. 3. Lampets case Co. Ibid. Neither yet shall the Lord by voucher or otherwise take advantage of a warranty made to a Villein his heirs and assigns because it is in liew of an action and consists in privity c. Co. Inst pars 1. 130. b. 1. 11 Albeit the Vouchee Tenant by resceit Prayée in aide A protectiâ—â— cast for vâ—â—chee c. or Garnishée be no Parties to the Writ yet before they appear a Protection may be cast for them because when the Demandant grants the Voucher or resceit in judgement of Law they are made privie And although the Demandant counterplead the Voucher or resceit yet if it be adjudged for them and so they made privy in Law a Protection may be cast for them as aforesaid And so it is of the Garnishée a Protection may be cast for him at the day of the return of the Scire facias c. Co. ib. 146. a. 1. 12 If a Rent-charge be granted to A. and B. and their Heires Joyntenants in Avowry A. distraineth the beasts of the Grantor he sueth a Replevin A. avoweth for himself and maketh conusance for B.A. dieth and B. surviveth In this case B. shall not afterwards have a Writ of annuity because the election and Avowry for the rent by A. barreth B. of any election to make it an annuity albeit he assented not to the Avowry and this is by reason of the privity of their estate c. Co. ib. 170. b. 1. 13 Husband and Wife Tenants in special Tail have issue a daughter the Wife dieth Coparcenâ—â— the Husband by a second Wife hath issue another daughter both the daughters enter where the eldest is onely inheritable and make partition here the eldest daughter is concluded during her life to impeach the partition or to say that the youngest is not Heir and yet the youngest is a stranger to the Tail but in respect of privity of their persons the partition shall conclude for a petition between meer strangers in that case is void Howbeit the issue of the eldest shall avoid this partition as issue in Tail The like 14 I. S. seised of Lands in Fee hath issue two daughters Co. ib. 170. b. 2. viz. Rose bastard eigne and Anne mulier puisne and dieth Rose and Anne do enter and make partition In this case Anne and her Heirs are concluded for ever and this is by force of the Privity that is betwixt them â—ccompt 15 An action of Accompt must he grounded upon Privity Co. ib. 172. a. 4. for without Privity no Action of Accompt can be maintained viz. either a Privity indeed by the consent of the party as in such an action against a Receiver or Bailife for against a Disseisor or other wronged doer no account doth lie or a privity in Law ex provisione legis made by Law as against a Guardian in soccage c. â—lienation of 〈◊〉 property in 〈◊〉 â—â—parcenary 16 In coparcenarie if one of the parts be evicted by an eigne title Co. ib. 173. b. 2. Littl. Sect. 262. she that so loseth her part shall enter upon the rest to have recompence c. because yet the Privity which the Law creates betwixt them doth still remain but if one of the parceners sell her part and then the part which the other parcener hath is evicted c. In that case the parcener that so loseth her part shall not enter upon the Alienée for that by the alienation the privity is dissolved Littl. §. 260 And therefore if a man hath land in taile and also as much in Fée-simple and hath issue two Daughters and die and the Daughters make partition so that the entailed land is allotted to the eldest and the Fée-simple land to the youngest Here if the youngest Daughter alien the Fee-simple land to another in fée and hath issue and die the issue may well enter into the entailed land and shall hold it in property with her Aunt Yet shall not the eldest sister enter into half of the lands in Fee-simple upon the Alienee because by the alienation the privity of the estate was destroyed c. So it is also Co. ib. 172. b. 4. if the youngest Daughter had made a gift in tail because the reversion expectant upon an estate tail is of no account in Law for that it may be cut off by the Tenant in tail at his pleasure Exchange It is otherwise of an estate for life or years c. And what is said of parcenary is also true of exchange in point of eviction c. â—oparceners 17 If a man is
the remainder to D. in fée A. makes feoffment in fée the Feoffée suffers a common recovery in which B. is vouched and he over the common Vouchée In this case A. is not bound but B. and all the remainders over are barred For albeit by the feoffment of A. all the remainders were discontinued and the estates of B. C. and D. were converted to méer rights and that the remainder could never be remitted before the estate tail in possession were re-continued Yet in case of a common recovery which is the common assurance of the land he that comes in as Vouchée shall be in judgement of Law in in privity of the estate which he ever had although the precedent estate upon which the estate of the Vouchée depended were devested or discontinued c. Privities of estate diversity 92 There are thrée manner of privities Co. l. 3. 22. b. 4. Walkers case viz. 1 In respect of the estate onely 2 Of the contract onely 3 Of the estate and contract together Privity of the estate onely as betwéen the Grantée of the Lessor and the Lessee or if the reversion escheat between the Lord by escheat and the Lessee so also between the Lessor and the Assignee of the Lessee there is privity in estate onely for that there is no contract betwixt them Privity of contract onely which extends onely to the person of the Lessor and the person of the Lessee as when the Lessee assigns over his interest notwithstanding such assignment the privity of the Contract still remains between them as to bring against the Lessee an action of Debt for rent arrear or the like albeit the privity of the estate be removed by the act of the Lessee himself Privity of estate and contract together is between the Lessor and Lessee themselves so long as the estate is continued betwixt them c. Vide Dyer 4. b. 1. 24 H. 8. The like 93 Lord and Tenant the Tenant makes feoffment in fée Co. ib. 23. a. 4. in this case the privity which was between them in estate or in tenure is gone Neverthelesse for the arrearages due as well before as after the feoffment until notice c. the privity betwéen them as to the avowry doth still remain And at the Common Law before the Stat. of Quia emptores terrarum if the Tenant had made a feoffment to hold of the chief Lord the Feoffée by no tender that he could make could compel the Lord to avow upon him but the Lord might still avow upon the Feoffor for that the privity did still remain and the Tenant by his own Act could not change the avowry of the Lord c. Howbeit in the first case if the Lord grant over his Seigniory or if the Feoffor die there the privity as to the avowry is destroyed for that is personal and holds onely between the Lord and the Feoffor themselves in person So also if after the assignment of the lease the Lessor grant over his reversion the Grantée shall not have an action of Debt against the Lessée For the privity of contract as to the action of Debt holds onely betwéen the Lessor and the Lessée themselves in person So in the same case if the Lessée die the Lessor shall not have an action of Debt against his Executors for the privity consists onely between the Lessor and Lessee c. Co. ib. b. 3. 94 If Tenant in Dower Dower Coâ—â—tesie Waste c. or Tenant by the Courtesie assigne over their estate yet privity of action remains between the heir and them so that he shall have an action of Waste against them for Waste done after the assignment But if the heir grant over the reversion then the privity of the Action is destroyed and the Grantee cannot have any action of Waste save onely against the Assignee because between them there is privity of estate but between the Grantee and the Tenant in Dower or Tenant by the Courtesie there is no privity at all Vide suprà 86. Co. ib. b. 4. 95 If the Lessor enter for the condition broken Privity of contract or the Lessee surrender to the Lessor Now is the estate and term determined and yet the Lessor shall have an action of Debt for the arrearages due before the condition broken or the surrender made as appears by F. N. B. 120 122. 30 E. 3. 7. 6 H. 7. 3. b. against the book of 32 Edw. 3. Tit. Barre 262. which is not law And this is in respect of the privity of the Contract which still remains between the Lessor and the Lessee c. Co. ibid. Vagle Glovers case 96 If the Lessee for years assign over his Interest The like and the Lessor by deed indented and enrolled according to the Statute bargain and sell the reversion to another the Bargainee shall not have an action of Debt against the Lessee because there is no privity between them Nevertheless after the assignment the Lessor himself might have an action of Debt against the Lessee himself for rent due after the assignment because the privity of the contract between the Lessor and Lessee doth still continue as long as the Lessor retains the reversion So likewise if an Executor of a Lessee for years assignes over his interest Co. l. 3. 24. a. 1. Overton and Sydhals case an action of Debt lyeth not against him for Rent due after the assignment Also if Lessee for years assigne over his interest and die the Executor shall not be charged for the rent due after his death For by the death of the Lessee the personal privity of the contract as to the action of Debt in both these cases was determined Co. ibid. Brome and Hores case 97 A. le ts to C. 3 acres of land for years rendring rent Privity of estate and coâ—tract the said C. assignes all his estate in one acre to another A. suffers a common recovery to the use of B. in fee who brings an action of Debt against the first Lessee this action will well lie for inasmuch as the Lessee assignes his interest but for part remains possessed of the residue not onely the Lessor but also his Assignee or he that claims under him shall have an action of Debt for the intire rent against the Lessee because there was not onely privity of contract but also privity in estate and contract together and therefore in this case the action runs with the estate So also at the Common law before the Stat. of Quia emptores terrarum if the Tenant had made feoffment in fee of part of the tenancy In that case there was no apportionment but the Lord or his Grantee shall avow upon the Feoffor for that he remains Tenant in respect of the residue Howbeit if he had made feoffment of all then the Grantee of the Lord shall not avow upon him c. Co. ibid. Marrow and Turâ—ins case 98 In debt
against two Administrators upon a lease made to their Testator the Defendants plead that before the rent arrere The like one of them had assigned all his interest to J. S. of which the Plaintiff had notice and accepted the rent by the hands of the Assignee due since the assignement and before this rent now demanded was due Here upon the demurrer of the Plaintiff the judgement passed against him because the privity of the contract was determined by the death of the Lessée and for that after the assignment made by the Administrator debt lyeth not for rent due after such assignment See Dyer 4. b. 1 c. â—ebâ—â—ter 99 C. being possest of a Mease with the appurtenances for 30 years Co. l. 4. 52. a. 3. in Rawlins case demised all his interest therein to R. and after C. having departed with his whole interest in the Mease by Indenture demised a Stable belonging to the same unto W. for six years And then R. re-demiseth the whole Mease with the appurtenances to C. for 21 years In this case if W. be impleaded for the Stable by C. W. shall rebutt and maintain the lease of the Stable for six years against C. by way of conclusion because all parties and privies in estate or interest are bound by Estoppels Warranty and condition imâ—lied in exâ—hange and â—â—itition 100 The warranty which is tacite implyed in every exchange Co. l. 4. 121. b. 1. in Bastards case runs onely in privity For none shall vouch by force thereof but onely such as are parties to the exchange or their heirs and no Assignée Howbeit an Assignée may rebutt by force thereof albeit the exchange be without déed as appears 3 E. 3. tit Form 44. 2 E. 2. Qui in vita 16. There is the same law also in case of partition and as it is in case of warranty so it is also in case of the condition which the Law doth also imply upon every exchange And therefore if A. exchange with B. and B. alien to C. who is evicted by title paramount In this case C. shall not enter upon the other for as the warranty so also the condition runneth in privity to such â—nely as are parties to the exchange and to their heirs and doth not extend to the Assignée So likewise none shall have a Contra formam feoffementi but the Feoffée or his heirs Howbeit the Assignée may rebutt Vide F. N. B. 163. c. 22 H. 6. 50 b. 30 H. 6 7. a. 10 H. 7. n. e. but in the same case if the title of A. who aliened not be evicted he shall enter into the land which he gave in exchange albeit B. had aliened it over c. Vide suprà 18. 78. Joyntenants â—emise at will 101 If two Ioyntenants make a lease at will rendring rent Co. l. 5. 10. b. Hensteads case and one of them dies all survives to the other and the Lessée continues his possession Here the survivor shall have an action for the whole rent in respect of the privity c. Fuit dit Grantees preâ—â—ntment to 〈◊〉 avoydance â—od seisin for 〈◊〉 Grantor 102 A man seised of an Advowson in fée Co. l. 5. 97. b. 4. The Countesse of Northumberlands case grants the next avoydance to another the Incumbent dies the Grantée presents Here albeit the Grantor nor his Ancestors or those whose estate he hath ever presented yet this presentment of the Grantée shall be adjudged sufficient seisin in the Grantor and his heirs and shall serve to make title in a Quare Impedit And this seems to be in respect of the privity between the Grantor and the Grantee for that the Grantee presents in the right and title of the Grantor c. And therefore if the presentment be alledged in the Lessor or Donor and also in the Lessee or Donee this is not double for the presentment of the Lessee or Donee is the presentment of the Donor or Lessor and the presentment of the Lessor or Donor is onely traversable So also if the Grantee for years of a Seigniory or a Guardian happen the seisin of the services this shall be good seisin for him in the reversion And with this agrees F. N. B. 179. f. 45 E. 3. 26. 11 E. 3. Tit. Ass 86. â—ord paraâ—â—unt may â—arge tenant â—â—avail 103 At the Common Law the Lord was not compellable to take his rent of any other then of him who was his immediate Tenant in privity Co. l. 6. 58. a. 2. in Bredimanâ— case and therefore at the Common Law the Lord paramount was not compellable to accept his rent by the hands of the Tenant paraâ—ail or by the hands of a Tenant for life where the reversion was over And that well appears by the Statute of Westm 2. cap. 9. Capitalis Dominus fervitia consuetudines sibi debetas renuebat accipere permanus alterius quà m per manus proximi tenentis suis sic tenentes in dominico amiserunt proficua tenementorum suorum Non habeat capitalis dominus potestatem distringendi tenentes in dominico dum praedictus tenens offerat ei servitia debita consueta Co. l. 7. 7. b. 3. The Earl of Bedfords case 104 If Tenant in tail of lands holden by Knight-service make leases not warranted by the Statute of 32 H. 8. cap. 28. and die Guardian 〈◊〉 Bishop may 〈◊〉 evict voidaâ—â—â— estates his heir within age the Guardian in privity and right of the heir in tail shall avoyd those leases during the time that the heir is in Ward So also if a Bishop make a lease for years not warranted by the Statute so that the lease is voydable by the Successor and dies the King shall avoyd that lease during the vacation of the Bishoprick viz. in privity and right of the same Bishoprick for that the Guardian in the one case and the King in the other are not strangers but privies in right Howbeit in the case of the Guardian he shall avoyd the lease as to his own interest onely but shall not prejudice the heir of his election at his full age to confirm the same leases if he please For Custos statum haeredis in custodia sua existentis meliorem non deteriorem facere potest So likewise if the heir within age before the entry of the Guardian or the Ancestor being within age make a lease for years rendring rent the Guardian may enter in privity and right of the heir and shall avoyd the lease Howbeit the Lord by escheat shall not avoid voydable estates made by his Tenant who was an Infant for regularly none shall avoid voydable estates by reason of infancy but onely such as are parties or privies viz. the Infant himself or his heirs being privies in bloud and in the case abovesaid the Guardian as privy in right c. Co. l. 7. 13. a. 1. in Englefeilds case 105 Thomas Duke of Norfolk Power 〈◊〉
attornment Co. ib. 94. 2. he shall not shew it sic de simlibus But when he that claimes the thing or any right or interest out of it or justifies in right of the Grantée there he ought to shew the first grant as the second Grantée of a rent charge shall shew the first grant and so shall his Bailife and the Grantée of a rent charge shall not plead the release of the Disseisée to the Disseisor without shewing it for albeit he claime not the land of which the release is made yet he that hath rent out of land hath also right in the land which by a release of all his right shall be extinct and therefore in such case he ought to produce the Déed And with this agrées the 20 H. 7. 6. 14 H. 8. 5. The Disseisée shall not plead a release to the Disseiser neither of right in the land nor of rent issuing out of the land without shewing it for where one claims the thing unto which the release is made or right or interest out of it the Law creates a privity in respect of his estate or right in the land viz. to this intent that he shall not have benefit of the Déed without shewing it Impeachment â—f wast is gone â—y altering the â—â—tate 116 If an estate of land be granted without impeachment of wast Co. l. 11. 83. b. 3. Lewis Bowles case that priviledge is individually annexed unto that estate 3 E. 3. 44. per Shard and Stone If one that hath a particular estate without impeachment of wast change his estate he loseth that advantage 5 H. 5. 9. a. If a man make a Lease for years without impeachment of wast and after he confirmes the land to him for his life he shall be afterwards chargeable for wast 28 H. 8. Dyer 10. b. If a Lease be made to one pur auter vie without impeachment of wast the remainder to him for terme of his own life here he is punishable of wast for the first is estate drowned and gone and so it is also of a Confirmation The heir at the Common Law shall have prohibition of wast against the Tenant in Dower but if the heir grant over the reversion his Grantée shall not have prohibition of wast For it appears in the Register fol. 72 that such an Assignee in an action of wast against Tenant in Dower shall recite the Statute of Glocester and therefore he shall not have prohibition of wast at the Common Law for then he should not recite the Statute Vide F. N. B. 55. 14 H. 4. 3. 5 H. 7. 17. b. suprà 1 4. â—ouchee c. â—y have a â—rit of Erâ—â— c. 117 If a man be vouched and enter into warranty and leaseth F. N. B. 21. c. he may have a Writ of Error and shall assigne the errors which hapned between the Demandant and the Tenant or between the Demandant and himselfe as Vouchee And so he in reversion that prays to be received for default of the Tenant for life or for his faint pleading if he be recovered and plead and lose he shall have a Writ of Error and shall assigne the error that hapned betwéen the Demandant and Tenant or betwéen the Demandant and himselfe that so prayed to be received So also if Tenant for life lose by default he in the reversion shall have a Writ of Error albeit he neither was received nor prayed to be received And he shall assigne for error any matter that hapned betwéen the Demandant and Tenant that so lost by default And all this is in respect of the privity and interest which the Vouchee and Reversioner had in the land so recovered by the Iudgement F. N. B. 21. l. m. n. 118 In a plea of land against the Tenant if the Tenant die Who may bring writs 〈◊〉 Error he that is heir to the Tenant for that land shall have a Writ of Error and not he that is heir at the Common Law as in Borough English if the Tenant lose the land by erronious Iudgement the youngest sonne shall have the Writ of Error and so shall he that is heire in special tail And this in respect of the special privity and interest which they have in the land And for the same reason it is that in case land be lost by erronious Iudgement the Tenant may have a Writ of Error and so also may the Vouchee have another Writ of Error upon one and the same Iudgement and so may the Tenant and the Tenant by receit and all at one time hanging Executors also or Administrators shall have a Writ of Error upon a Iudgement given against their Testator for debt or damages So likewise the heir shall have a Writ of Error to reverse an out-lawry of Felony pronounced against his father to restore him to the privity of bloud betwéen his father and him F.N.B. a. 22. b. The Successor of an Abbot Prior Parson or such like bodies politique shall have a Writ of Error upon a Iudgement given against their Predecessor of all things which touch the Succession or Corporation but if a man recover against a Parson Bishop or the like debt or damages by judgement or action personal their Executors shall have a Writ of Error upon such Iudgement and not their Successors because their Executors or Administrators have interest in such things and not the Corporation c. If a man sue execution erroniously against the recongnisor upon a recognisance the Feoffée of the recognisor shall have a Writ of Error c. F. N. B. 22. c. 119 In a praecipe quod reddat of land if the Tenant disclaime No writ of Eâ—ror upon diâ—claime whereby the Demandant recovers in that case the Tenant shall not have a Writ of Error against his own Disclaimer because by that plea he hath waved all the privity and interest that he had in the land but if the Tenant onely plead non-tenure and thereupon it is found against him so that the Demandant recovers in that case the Tenant shall have a writ of Error c. F.N.B. 98. q. r. 120 If a man lose land by default in a praecipe quod reddat and die Heir and â—â—cutor privies the heir shall have an action of deceit as well as the father and shall have restitution for he is privy in bloud So likewise if a man have execution by default upon a recognisance in a Scire facias sued against one and that Defendant die his Executors shall have a Writ of deceit and shall be restored for they are privies in right c. F.N.B. 108. a. 121 The Vouchée or Tenant by receit or he in the reversion Reversione shall have â—taint or Eâ—â— where he joyns to the Tenant for terme of life by aid prayer shall have an attaint if they lose by false verdict And if the Tenant for life lose by false verdict he in the
the Law 27 Eliz. Co. l. 3. 13. Sir Will. Herberts case 11 H. 7. 12. b. 2 Vpon a recognizance acknowledged by the Ancestor Equal interests require â—qual contriâ—â—tions or a judgement in an action of Debt given against him If he die seised of two acres whereof one is holden in Borough English or having issue two daughters which make partition or if he die without issue whereby part of his land descendeth to the heir of his fathers part and part to the heire on the part of his mother In all these cases if one onely be charged he shall have contribution against the other for they are in aequali jure Finch 20. Co. l. 2. 25. b. 4. The case of Banker 26 Ass Pl. 37. 3 If two four or more men being severally seised of lands Equal extenâ— joyn in a recognizance all their land must be equally extended Finch 20. Finch ibid. 4 This Rule doth chiefly shine and shew forth it self in the exposition of Statutes Exposition of Statutes by extending things there provided to mischiefs in the like degrées c. Finch ibid. 5 This Rule is also of great use for guiding the grounds and maximes of things which newly start up Grounds of Law according to the rule of the Common Law 23 H. 8. Fitz. 6 Vses at the Common Law were nothing Uses regardâ—â— as estates yet in time gaining greater regard to be imputed amongst Inheritances are now demeaned as other Inheritances at the Common Law so as possessio fratris shall be of them of lands in Borough English the use shall descend to the youngest son And now also these uses being turned into estates shall be demeaned in all respects as estates in possession Finch 20. 7 When custome createth Inheritance in Copy-hold lands Copihold 〈◊〉 Freehold and maketh the lands descendable Co. l. 4. 22. then shall the Law direct the descents according to the Maximes and rules of the Common Law to have a possessio fratris and the like But not to collateral things as tenancy by the Courtesie Dower descent to toll an entry Finch 20. Co. Inst pars 1 24. b. 1. 8 Equitie is a construction made by the Iudges Equity a coâ—struction mâ—â—â— by the Judges that cases out of the letter of a Statute yet being within the same mischief or cause of making the same shall be within the same remedie that the Statute provideth And the reason hereof is for that the Law-maker could not possibly set down all cases in expresse terms Aequitas est convenientia rerum quae cuncta coaequiparat quae in paribus rationibus paria jura desiderat And again Aequitas est perfecta quaedam ratio quae jus scriptum interpretatur emendat nulla scriptura comprehensa sed solum in vera ratione consistens Aequitas est quasi aequalitas Bonus judex secundum aequum bonum judicat Co. ib. 24. a. 4. aequitatem stricto juri praefert Et jus respicit aequitatem And therefore the cases set down in the Statute of Westm 2. are there put onely for examples of estates taile general and special and not to exclude other estates taile For Exempla illustrant non restringunt legem And this appears by the words of the same Stat. Auxi sont divers autres estates en le taile c. And herewith also agreed Littleton § 21. Carbonels case 33 Ed. 3. Taile 5. 3. E. â— 32. 18 Ass Pl. 5. 18 E. 3. 46. 1 Ma. Dy. 46. The Lord Barkleys case Pl. Co. 251. Co. ib. 53. b. 3. 9 Albeit the Statute of Glocester Wast and â—â—struction coâ—vertible which provideth remedy against wast speaketh not of the exile of Villeins yet that also is comprehended under the general word of waste so that exile or destruction of Villeins or Tenants at will or making them poor where they were rich when the tenant came in whereby they depart from their tenures is to be adjudged waste for waste and destruction in their larger sense are words convertible c. â—ivery of â—nds in ward 10 A livery of lands out of the Kings hands is in the nature of a restitution which is to be taken favourably Co. ib. 77. a. 4 For if livery be made of a Mannor cum pertinentiis the heir shall thereby have an Advowson appendant Howbeit it is otherwise in grants by Letters Patents 11 By the Statute of 2 E. 6. cap. 8. it is enacted Co. ib. 77. b. 2. That such persons as hold for term of years â—tatute Merâ—hant Staple â—legit c. â—ithin 2 E. 6. 8. or by copie of Court-roll or have any rent common or profit apprender out of any lands found in any office whereby the King is entitled to the wardship of the same lands or to the forfeiture of lands upon attainder of treason felony praemunire or any other offence may have hold enjoy and perceive their several estates interests and profits although they be not found in the office Here albeit those two estates onely are saved by the letter of the said Act yet it being a beneficial Law the estate of Tenant by Statute Staple Merchant Elegit and of Executors that hold lands for payment of debts c. are taken to be within the benefit of that clause which was doubted in 14 El. Dyer 319. â—ncertain teâ—ure found â— E. 6. 8. 12 Where an office is found by these words or the like quod de quo Co. ib. 77. b. 3. vel de quibus tenementa praedicta tenentur juratores praedicti ignorant or that the lands are holden of the King sed per quae servitia juratores ignorant neither of these shall be taken for an immediate tenure of the King in chief but in such cases a melius inquirendum shall be awarded as hath béen accustomed of old time And this provision is made by the Statute of 2 E. 6. cap. 8. And here albeit that Statute saith no more yet by the equity of the same Statute if the first office find a tenure for the King per quae servitia c. and upon the Melius the tenure is found for a Subject In that case the first office hath lost his force and need not to be traversed and the Melius is in the nature of a Diem clausit extremum or a Mandamus c. And this was but a declaration of the ancient Common Law as by these words of the same Statute as hath been accustomed of old c. it appeareth but if upon the Melius it be found again as uncertainly as before is said then it is in judgement of Law a tenure in Capite Howbeit if upon the Melius a tenure be found for the King Ut de manerio c. sed per quae servitia c. it shall be taken for Knight-service â—arons and Knights fees 13 At or before the Statute of Magna carta cap. 2. Co.
the lands undisposed of excéed in value the other lands given in Frankmarriage yet shall not the Donée in Frank-marriage have any part thereof unlesse she will put her part in Hotchpot with the other lands and then they shall be equally divided betwéen the sisters And it séemeth by our old books Co. ib. 176. b. 3 Glanvil l. 7. cap. 5. that by the ancient Law there was also a kind of resemblance hereof concerning goods Si autem post debita deducta Division of the testators goods post deductionem expensarum quae necessariae erunt id totum quod tunc superfuerit dividatur in tres partes quorum una pars relinquatur pueris si pueros habuerit defunctus secunda uxori si superstes fuerit Et de tertia parte habeat testator liberam disponendi facultatem si autem liberos non habeat tunc medietas defuncto alia medietas uxori Si autem sine uxore decesserit liberis existentibus tunc medietas defuncto alia medietas liberis tribuatur Si autem sine uxore liberis tunc id totum defuncto remanebit Lambert 119. 68. And by the law before the Conquest it was thus provided Sive quis in curia sive morte repentine fuerit intestatus mortuus Dominus tamen nullam rerum suarum partem praeter eam quae jure debetur herioti nomine sibi assumito verùm eas judicio suo uxori liberis cognatione proximis justè pro suo cuique jure distribuito Frankmarriâ—ge Hotchpot 22 If a man seised of 30 acres of land each acre of equal value Littl. §. 273. Co. Inst pars 1. 179. a. 1. hath issue two daughters and gives 15 acres to one of them in Frankmarriage and dies seised of the other 15 acres In this case the other sister shall have the 15 acres so descended and the Baron and Feme shall not put their 15 acres in Hotchpot with them because the parts are already equal but this is to be thus understood if they are of equal value at the time when the Partition should be made For if the land given in Frankmarriage be by the act of God decayed in value or if the remnant of the lands in Fée-simple be improved after the gift they may be cast into Hotchpot And the Law will adjudge of the value as it is at the time of the Partition unlesse it be by the proper act or default of the parties c. And it séemeth to some that in case they be of equal value at the time of the partition that then the reversion in fée of the lands given in Frankmarriage shall onely descend to the Donee for otherwise the other sister shall have more benefit than the Donee and so their parts would not be equal and then their parts might be put into Hotchpot notwithstanding the 30 acres are all of equal value at the time of the partition which is against the reason that Littleton gives Sect. 273 c. â—rvivor of â—yntenants 23 If there be two Ioyntenants in fee Co. ib. 193. a. 3. and the one letteth his part to another for the life of the Lessor and the Lessor dieth some say that his part shall survive to his companion for that by his death the lease was determined Howbeit others hold the contrary and their reason is First because at the time of his death the joynture was severed for so long as he lived the lease continued And secondly because notwithstanding the act of any one of the Ioyntenants there must be equal benefit of survivor as to the Frée-hold but here if the other Ioyntenant had first died there had béen no benefit of Survivor to the Lessor without question because at that time the joynture would have béen severed And this last séems to be the opinion of Coke for that he puts it last according to his own rule and the course which he observes Littleton to use Co. ib. 341. b. 4. 24 A Bishop Abbot Dean Master of an Hospital Abbot c. Writ of right Parson a Jâ—â— utrum or any other such body politique or corporate which hath a sole seisin of lands in fée in right of their several Corporations if any such be ousted they shall if néed be have a remedie agréeable to their right viz. a Writ of Right which is the highest remedy for that they have the highest estate It is otherwise of a Parson because the intire fée and right is not in him his highest writ being a Juris utrum c. Co. ib. 365. b. 2. 25 Albeit the Statute of Glocester cap. 3. made in 6 E. 1. Alienation by Tenant by courtesie no barre for the relief of the heir against the alienation of the Father Tenant by the courtesie with warranty c. maketh one by mention of a Writ of Mortdancester Cosenage Aiel and Besaiel yet a Writ of Right a Formedon a Writ of Entry ad communem legem and all other like actions are within the purview of that statute for those actions are but put for examples Again where it is said in the same Statute if the Tenant by the Courtesie alien yet his release with warranty to a Disseisor c. is within the purview of that Statute because it is in equal mischief and if that evasion might take place that Stat. should have béen made in vain So also if Tenant by the Courtesie be of a Seigniory and the tenancy escheat unto him and after he alieneth with warranty this shall not bind the issue unlesse assets descend for it is in equal mischief c. Co. ib. 313. a. 2. 26 Albeit the preamble of the Statute of 34 H. 8. cap. 20. Gifts of the King 34 H 〈◊〉 20. extendeth onely to gifts in tail made by the Kings of England before that Act viz. hath given granted c. and the bodie of the Act referreth to the preamble viz. that no such feigned recovery hereafter to be had against such tenant in taile c. So as this word such may seem to couple the bodie and the preamble together Yet in this case such shall be taken for such in equal mischief or in like case and by divers parts of the Act it appeareth that the makers of the Act intended to extend it to future gifts and so is the Law taken at this day without question Littl. Sect. 732. Co. ib. 383. b. 1. 27 Some do expound these words of the Stat. of Glocester cap. 3. Heritage in Gloc. 3. iâ— heritance by purchase 〈◊〉 the heritage of his mother to be the lands which the mother hath by descent And that construction is true but that Stat. by the authority of Littleton Sect. 732. extendeth also where the mother hath it by purchase in Fée-simple for so saith Littleton himself that this word Inheritance is not onely intended where a man hath lands by descent but likewise where a man hath a
number neverthelesse any one right is within that Statute c. Pl. Co. 83. 86. Partridges case Vide 40. â—anslaughter 13 By a pardon of murther Man-slaugther is also pardoned Finch 21. Finch ibid. â—taint 14 An attaint supposing a Verdict to have passed before two Iustices whereas it passed before four is good enough â—covery 15 A recovery pleaded of thrée acres where it was of six Finch ibid. is good enough â—ndition 16 A condition that I shall not enfeoff I. S. is broken Finch ibid. if I enfeoff I. S. and I. D. â—pihold 17 A Copy-holder of a Mannor Finch ibid. where the custome giveth liberty to demise in fée may demise for any lesse estate without other prescription Vide 3. â—â—ise 18 Where the custome is 18 E. 3. 8. that a man shall not devise his lands for any higher estate than for terme of life Yet if a devise be made in fée and the Devisée claim but for life the devise is good Finch 21. â—iso 19 By the Statute of 32 H. 8. cap. 1. 2 3 P. M. Dyer 150. b. that giveth power to devise two parts of ones land a devise of the whole had béen good for two parts although the Stat. of Explanations 34 35 H. 8. cap. 5. had not béen made Finch 21. â—mes â—ure 20 An estate of Fée-simple conveyed to the Feme for her joynture Co. l. 4. 3. b. Vernons case and in satisfaction of her Dower is a joynture within the equity of 27 H. 8. For if an estate for life be a competent livelihood for her much more an estate in Fée-simple c. Sir Morrice Denurs case Dyer 8 El. 248. â—hold wiâ— estate 21 Where the custome of a Copihold Mannor is to grant Copihold lands for one two or thrée lives Co. l. 4. 29. b. 4. there a grant to a Feme Durante viduitate is good for that is a lesse estate and therefore included in the other c. Downes case â—nt inâ— conâ— 22 This word Attaint of murther in the Statute of 3 H. 7. cap. 1. Co. l. 4. 46. a. 4. in Kath. Wroteâ— case shall not be meant onely of a person that hath judgement of life but also extended to a person convicted by confession or verdict for a person attaint is a person convict and more 36. Co. l. 4 106. a. 4. in Adams Lamberts case 23 Albeit by the expresse words of 1 E. 6. cap. 14. Superstitious uses Estates in Fée-simple given to superstitious uses séem onely to be given to the King for the words are To the finding of a Priest to have continuance for ever c. yet that Stat. by construction extends also to every lesse estate as to an estate in taile for life c. Co. l. 5. pars 1. 6. b. 4. The Kings Ecclesiastical law 24 If by the proviso of 1 Eliz. cap. 2. The high Commission may censure depravers of the Common Prayer the Ecclesiastical jurisdiction of Arch-Bishops Bishops and other inferiour Officers is saved so that they may still punish by deprivation and other Ecclesiastical censures all such as shall deprave the book of Common Prayer notwithstanding by the same Act there is other provision made for the punishment of such offenders before temporal Magistrates Much more shall high Commissioners authorised by another Statute of the same year cap. 1. have power to inflict due punishment for the like offence albeit in the said Act of 1 Eliz. cap. 2. there be no such provision made for them as for Bishops c. Because Cui licet quod majus est non debet quod minus est non licere Co. l. 5. 6. b. 1. The Lord Mountjoys case 25 The words of the Statute of 1 Eliz. concerning leases to be made by Bishops c. are these other then for the terme of 21 yeares Leases by tâ—â— Clergy or three lives without saying or under and yet a lease for a lesse term is good There is also the same exposition of the Stat. of the 13 Eliz. cap. 10. whereof the words as to that point are the same 1. Co. l. 5. 29. b. 4. in Princes case 26 In Princes case in the 5 Rep. it was said Administration of boâ—â— Notabilis that it was adjudged in a case between Vere and Jeffres in tempore Reg. Eliz. That where one had goods onely in an inferiour Diocesse yet the Metropolitan of the same Province pretending that he had bona Notabilia in divers Diocesses committed the administration c. This administration was not void but onely voidable by sentence because the Metropolitan hath jurisdiction over all the Diocesses within his Province But if an Ordinary of a Diocesse commit the administration of the goods when the party hath bona Notabilia in divers Diocesses such administration is méerly void as well to the goods within his own Diocesse as elsewhere because he can by no means have jurisdiction of the cause Co. l. 5. 91. a. 1. in Hoes case 27 A man assignes a debt unto Quéen Eliz. by déed enrolled in satisfaction of a debt due to her from him as Collector of the Fifteens Three include 〈◊〉 with proviso that if the Lord Treasurer and the Barons of the Exchequer or any two of them for some reasonable cause should disallow revoke the same that then it should be void In this case revocation by three of the Barons shall be sufficient for if three doth it two doth it at least c. Co. l 5. 115. a. 1. in Wades case 28 If a man tender more money then he ought to pay Tender 〈◊〉 greater fâ—â—â— that is good enough for Omne majus continet in se minus and the other ought to receive so much thereof as is due unto him Quando plus fit quam fieri dâ—bet videtur etiam illud fieri quod faciendum est Et in majore summa continetur minor 29 In the general pardon of the 28 of Eliz. Burglary was excepted Attainder 〈◊〉 Burglary â—doned and thereupon the Iudges were then moved Co. l. 6. 13. a. 4. in the cases of pardon H. 29 Eliz. whether the attainder of Burglary was thereby also excepted And it was resolved that it was For if Burglary it selfe was excepted while it was yet doubtful whether it would be found Burglary or no and before it did appeare to the eye of the Law to be so à fortiori when Burglary appears upon record by judgement of Law it shall be excepted Co. l. 6. 56. a. 1. in the Lord Chandos case 30 By the grant of the Mannor without this word of the reversion By the 〈◊〉 Mannor 〈◊〉 version pâ—seth the reversion shall passe albeit at that time the Grantor had not the Mannor in possession but in revension for this word Mannor includes all estates and degrees of estates of or
hath his Clergy the accessory cannot be arraigned For the Maxime of Law is Ubi factum nullum ibi forcia nulla ubi non est principalis non potest esse accessarius Then before there appears to be a principal one cannot be charged as accessory but none can be said to be principal before he be so proved and adjudged by Law and that ought to be by judgement upon verdict or confession or by outlawry for it sufficeth not that in truth there is a principal unlesse it appeare so by judgement of Law And this is the reason that when the principal is pardoned or takes his Clergy before judgement that then the accessory shall never be arraigned because it appeares not by judgement of Law that he was principal and the acceptance of the pardon or prayer of the Clergy may be an argument but can be no judgement in Law that he is guilty Howbeit if the principal after attainder be pardoned or hath his Clergy allowed there the accessory shall be arraigned because it then appears judicially that there was then a Principal 28 29. 34 35. Land tree severed 20 When a man makes a lease for life or years Co. l. 4. 64. b. 2. in Herlakendens case the Lessée hath but a special interest or property in the trées being great timber as accessories annexed to the land so long as they are annexed unto it But if the Lessée or any other sever them from the land the property and interest of the Lessée is thereby determined and the Lessor may take them as accessory things which were parcel of his Inheritance and in which the interest of the Lessée is determined c. The like 21 If I let my land for life and after grant the trées Co. ib. 62. b. 4. and after that the Lessée dies yet the Grantée cannot take them as it was holden per toram Curiam in 21 H. 6. 46. d. because at the time of the Grant the Lessée had a property in them as accessories annexed to the land c. Vide Max. 25. The like 22 If trées being great timber be blown down by the winde Co. ib. 63. b. 1. the Lessor shall have them for they were parcel of his Inheritance and not the Tenant for life or years But if they be dotards without any great timber in them the Tenant for life or years shall have them c. Superstitious uses draw good uses 23 When certain summes are limited to superstitious uses Co. l. 4. 115. a. 2. in Adams Lamberts case and one use is separated and divided from the other there the finding of one of them onely shall not give all the land to the King by the Stat. of 1 E. 6. cap. 14. but onely the sum appointed to the superstitious use which was employed within five years before the making of that Statute but if one of the uses depend upon the other there the finding of the principal or any part thereof shall give all the land to the King As if land be given to the intent that an Obit shall be found in such a Chappel and that upon the Obit 10 s. shall be distributed and employed to the Priest and 6 s. 8 d. to divers poor persons that shall be present at it and the residue of the profits to the reparations of the Chappel In this case if the Obit be maintained in any part within the five years although the 6 s. 8 d. be not employed to the poor men nor any thing at all upon the reparations of the Chappel within the five years Yet all the land shall be given to the King by the said Statute because all the uses depend upon the first 24 In suits in the Star Chamber before the repeal of that Court albeit the suit was for the King Co. lib. 5. 51. Halls case Upon censure or sentēce the King cannot pardon the damages or costs before censure or sentence contr◠and the offence such as the King might pardon yet when the censure was once given and damages given to the Plaintiff then the Plaintiff had particular interest in them by the censure which the King would not pardon But if the pardon had béene obtained before the censure there the pardon had discharged all for then the Court could not have procéeded to any censure of the Principal and by consequent neither of damages which are but accessories There is the same law of a pardon before sentence in suits depending betwixt party and party in the Court Christian for defamation casting violent hands upon a Clerk or the like for these being suits pro salute animae vel reformatione morum are in truth suits onely for the King although prosecuted by the party And therefore if in such a suit the Plaintiff hath expended any costs and the King before sentence pardons the Defendant in that case the costs are lost causa qua suprà It is otherwise if he be not pardoned till after sentence for then costs being thereby given to the Plaintiff he hath a particular interest in them which the Kings pardon cannot frustrate c. Co. l. 5. 96. b. 3. in Goodales case being adjudged in Randals case 23 24 Eliz. in the Court of Wards 25 A. seised in fée of certain lands A condition accessory to the estate by déed indented and enrolled according to the Statute covenants with B. That if B. pay unto A. his Heirs or Assignes 10 l. upon such a day at such a place that then A. and his heirs will stand seised of the said lands to the use of B. and his heirs A. having issue a son makes his Will in writing and makes C. his Executor and withal deviseth that C. shall have the land during the minority of his son and then dies his son within age In this case the question was to whom after the death of A. the Tenant ought to be paid and it was resolved that it ought to follow the estate of the land as an accessory unto it and shall not be paid unto C. either as Termor or Executor because C. could not be such an Assignée as is meant by the words of the Covenant having by the devise onely a particular interest in the land Neither yet if A. had granted the land for life or years could any such Lessee have béen Assignée in that case because notwithstanding such grant the reversion still remained in A. and the possibility of having the land again as in his former estate in case the condition were not performed and therefore the payment thereof ought to be made to his son and heir or unto the Assignée of the Covenantors whole estate as if the Covenantor had made an absolute feoffment in fée or else a gift in taile or lease for life with the remainder over in fée then the Feoffée Donée in tail or Lessée for life might be Assignées to whom the Condition ought to
be performed because in those cases the Covenantor departed with the whole estate unto which the Condition was annexed c. â—he estate â—ile not barâ—d the reverâ—oÌ„ or remainâ—r not barred â—lso 26 Whereas by the Statute of 34 H. 8. cap. 20. It is provided Co. l. 8. 77. b. 4. in the Lord Staffords case that no common recovery had against Tenant in taile who is party to the recovery shall barre his issues when the King hath the reversion c. by this Inclusivè the act preserves the reversions and remainders in tail of the Kings grant for they cannot be barred but when the estate tail upon which they depend is barred And this is the reason that when Tenant in taile is in of another estate and suffers a common recovery as Tenant this shall not bar any reversion or remainder because it barreth not the estate of the Tenant in taile being party to the recovery and upon whose estate such reversion or remainder depends For quod non valet in principali in accessoria seu consequenti non valebit quod non valet in magis propinquo non valebit in magis remoto Ordinary subâ—ect to an aâ—tion 27 If before the Statute of Westm 2. cap. 19. Co. l. 9. 39. b. 2. Hensloes case an action lay at the Common Law against the Deputies or Committées of the Ordinary by the name of Executors as appears by 38 E. 3. 26. 42 E. 3. 2. A multo fortiori an action shall lie by the Common Law against the Ordinary himself who is the Principal and from whom the Administrators do now derive their power â—rincipal and Accessary 28 Albeit the Principal be attainted erroneously Co. l. 9. 119. a. 4. in the Lord Sanchiers case either for errour in processe or because the Principal being out of the realm c. was out-lawed or because he was in prison at the time of the Out-lawry c. yet shall the accessary be attainted for the attainder of the Principal stands good until it be reversed and with this agrées the resolution of all the Iustices in the Kings Bench 2 R. 3. 12. And in the 18 E. 4. 9. the Principal was erroneously out-lawed for felony and the Accessory was taken indicted arraigned convicted attainted and hanged and afterwards the Principal reversed the Out-lawry and was indicted and arraigned and found not guilty and thereupon was acquit And in this case forasmuch as there can be no accessary but where there is a principal and here there was no principal the heire of the accessary shall be restored to the lands which his Father had forfeited by that unjust attainder either by entry or action at his election For now upon the matter by act in Law the attainder against his Father is without any writ of Error utterly annulled because by reversing the attainder against the Principal the attainder against the Accessary which depended upon the attainder of the principal is ipso facto utterly defeated and annulled And this doth notably appeare in an ancient book de tempore E. 1. tit Mortdancester 46. where the case was this A. was indicted of felony and B. of of the receipt of A. A. eloigns himselfe and is out-lawed B. was taken and put himselfe upon inquest and was found guilty and was thereupon attainted and hanged and the Lord entred as in his escheat After which time A. came in and reversed the Out-lawry and pleaded to the felony and was found not guilty wherey he was acquit Hereupon the heire of B. brings a Mortdancester against the Lord by escheat and therein sheweth all this matter and so upon a Demurrer it was awarded that the heire should recover seisin of the land For if B. had béen living he should have gone quit by the acquital of A. because B. could not be a receiver of a Felon when A. was no Felon 19. 29. 34 35. â—rincipal and â—ccessary 29 The makers of the Statute of 4 5 P. M. cap. 4. Co. l. 11. 35. a. 1. in Alexander Powlters case observing that by the Statute of 25 H. 8. cap. 3. Clergy was taken from the principal offender in the case of house-burning c. and not from any accessary have provided that the accessary before the fact in that and other cases there provided for shall be also outed of his Clergy which was taken to be a good interpretation made by that Parliament of all the Acts which concerned that matter For if the Principal shall have his Clergy it would be absurd to take away Clergy from the accessary because if the Principal hath his Clergy before judgement the accessary shall not be arraigned Vide suprà 19. F. N. B. 32. a. primer 30 If Baron and Feme present to an Advowson in right of the Feme which is appendant to the Mannor of the Feme Advowson appendant to an acre of land and after the Baron alien an acre parcel of the Mannor together with the Advowson in fée to a stranger and dies and after the stranger presents and then aliens the acre to another in fée saving the Advowson to himselfe and after the Church becomes void Here the Feme shall present and if she be disturbed she shall have an Assise of Darrein presentment because the Advowson was severed from the acre but if the Advowson were appendant to the acre then ought the Feme to recover the acre before she can present to the Advowson F. N. B. 47. d. 31 If a man recover in a Quare Impedit in the Common Pleas Quare non admisit out of the Kings Bench. and the record is removed by a writ of Errour into the Kings Bench and there affirmed In that case he shall have a writ to the Bishop there and ought to sue a Quare non admisit against the Bishop there upon that record c. F. N. B. 107. m. 32 An Attaint may be sued in the Common Pleas The like for an attaint if the record be there which is the principal or it may be sued in the Kings Bench upon false verdict given in the Common Pleas if the record be removed into the Kings Bench c. Ibid. 33 A recovery was had in an Assise brought in the Kings Bench The like and afterwards the record was sent into the Common Pleas and the party sued an Attaint upon that record in the Common Pleas For the record is the principal and the Attaint thereupon is accessary which see in tit Assise 8 E. 2. Itinere Canc. F. N. B. 115. f. 34 If the Principal die before verdict given upon the acquital Principal and Accessory or hath a charter of pardon and plead it c. In that case the Accessory shall not have a writ of Conspiracy because he is discharged by the death of the Principal or by the charter of pardon made unto the Principal c. 19. 28 29. Pl. Co.
cannot be defeated without entry and therefore by entry they ought to be made void Co. l. 7. 42. a. 3. in Beresfords case 2 Such an Exposition of a Déed must be made An entail good wiâ—â— menti 〈◊〉 the body â—â—gotten that all the parts thereof may well stand together and that withall it may stand with the rule of Law So if lands be given to the use of Aden and of the heirs male of the said Aden lawfully begotten and for default of such issue to the use of divers others in remainder c. Here albeit there wants the words of the bodie yet is this a good limitation of an estate taile For otherwise it would be against the intent of the Donor and all the remainders over would be void and if these words should be turned into Latine they ought to be rendred thus Et haeredum masculorum de praefato Adeno legitimè procreat and not haeredum masculorum praefati Adeni which is cléerly proved by the subsequent clause and for default of such issue c. For issue cannot be of Aden unlesse the words should be De dicto Adeno and so in this case the one clause is well expounded by the other c. Co. l. 8. 93. a. 1. in Frances case 3 In Replevin the Defendant avows for damage fesant The Plaiâ—â— plea in 〈◊〉 destroyed 〈◊〉 yet recoveâ— the Plaintiff pleads in Barre that the said lands were holden in soccage and that I. S. being thereof seised in fée by his last Will devised them unto him for sixty years if he should so long live c. Vnto which the Defendant pleads that it was true there was such a devise made but after the said devise I. S. enfeoffed certaine persons thereof to the use of the Plaintiff for sixty years if hee should so long live c. whereupon the Plaintiff demurs And in this case it was resolved that although it appeared that the title by which the Plaintiff claimed in his barre to the Avowry was utterly destroyed for the Plaintiff claims by the Will of I. S. which Will appears to be afterwards countermanded by the feoffment which the Avowant afterwards pleads and which the Plaintiff confesseth by his demurrer yet shall the Plaintiff have judgement because his Count is good and the Avowant in his replication to the barre of his Avowry hath done two things For first he hath destroyed the title which the Plaintiff made by the Will And again he hath given to the Plaintiff another title viz. to have the land for 60 years by force of the uses declared upon the feoffment And therefore in as much as upon the whole record according to which the Count ought to judge it plainly appears that the Plaintiff hath a lawful terme in the Lands and that the Defendant had taken his Cattel wrongfully for that cause judgement was given against the Avowant and for the Plaintiff albeit the title which the Plaintiff made for himself was destroyed c. â—etters Paâ—ents and Acts â—f Parliament â—est expoundâ—d by themâ—elves 4 The best Expositor of Letters Patents and Acts of Parliament Co. l. 8. 117. a. 4. in Doctor Bonhams case are the Letters Patents and the Acts of Parliament themselves by the construction and conference of all the parts together Optima statuti interpretatrix est omnibus particulis ejusdem inspectis ipsum statutum Et injustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere The count made good by the barre the barre by the replication c. 5 In Doctor Bonhams case in the eighth Report Co. l 8. 120. b. 1. in Doctor Bonhams case although it was admitted that the Plaintiffs replication was not material and the Defendants had demurred thereupon yet in as much as the Defendants had confessed in the barre that they had imprisoned the Plaintiff without cause the Plaintiff had judgement And this is the diversity there taken that when the Plaintiff replies and by his replication it appears that he hath no cause of action there he shall never have judgement but when the bar is insufficient in matter or amounts to a confession of the point in debate and the Plaintiff replies and shews the truth of his matter to enforce his case and in judgement of Law it is not material yet in that case shall the Plaintiff have judgement For 't is true that sometimes the Count shall be made good by the barre and sometimes the barre by the replication and sometimes the replication by the rejoynder c. Howbeit the diversity is that when the Count wants time place or other circumstance that may be made good by the barre so it is also of the bar replication c. as appears in 18 E. 4. 16. b. But when the Count wants substance no barre shall then make it good so likewise of a barre replication c. and with this agrées 6 E. 4. 2. Bone cas nota ibidem dictum Choke Vide 18 E. 3. 34. b. 44 E. 3. 7. a. 12 E. 4. 6. 6 H. 7. 10. 17 H. 7. 3. 11 H. 4. 24 c. But when the Plaintiff makes replication sur-rejoynder c. and thereby it appears that upon the whole record the Plaintiff had no cause of action he shall never have judgement albeit the barre rejoynder c. be insufficient in matter for the Court ought to make judgement upon the whole record and every one shall be intended to make the best of his own case Vide Riegeways case in the third Report 52. And these diversities were also resolved and adjudged between Kendal and Helier M. 25 26 Eliz. in B. R. and M. 29 30. in the same Court between Gallis and Burbry â—he like 6 Albeit the replication be insufficient Co. l. 8. 133. b. 1. in Turners case yet if the bar be also insufficient in matter upon the whole record the Plaintiff shall have judgement It is otherwise when by the replication it appears that the Plaintiff hath no cause of action for there the Plaintiff shall never have judgement although the barre be insufficient As in Debt upon an Obligation with condition to perform covenants in an Indenture the Defendant pleads performance of all the Covenants generally when it appears to the Court that divers of them are in the negative or disjunctive and so the plea in the general affirmative insufficient Yet if the Plaintiff reply and shew a breach of one of the Covenants which by his own shewing is no breach upon which the Defendant demurs judgement shall be given against the Plaintiff because upon the whole record it appears that the Plaintiff hath no cause of action For the Obligation is endorsed with condition to perform Covenants so that the Plaintiff hath no cause of action until there be a breach of Covenant and by the shewing of the Plaintiff himself there is not any breach sufficient in
King hath an Interest in the Land or shall lose Rent c. or services then the Court ought to cease until they shall receive a procedendo in loquela from the King c. F. N. B. 154. d. e. 85 If the King by his writ certifie the Iustices Justices to surcease upon the Kings Certificat that the Lands are in his custodie by reason of the nonage of some heire taken by Inquisition and returned into the Chancery commanding them that they shall not procéed Rege Inconsulto In that Case it séemes that the Iustices ought to cease for the present albeit there be no such Office found nor returned for they are bound to give credit to the Kings certificate albeit that it be not true c. And in Assise de Novel disseisin if the King send his writ to the Iustices that the Defendant holds the Land put in view of the Kings gift for term of life by the Kings Charter commanding them not to procéed Rege Inconsulto here although the Tenant will not plead this yet it séemes that the Iustices ought to cease by that writ So if the King rehearse in the writ that the Tenant is in his service in warre beyond Sea or in Scotland and that he holds by Charter of the Kings grant for term of life commanding that they shall not procéed Rege Inconsulto but to continue the Assise untill a certain day there also it séems they shall surcease Because the Tenant cannot plead it for if the Escheator will say that he seised the Land into the Kings hand in an Assise brought by any person the Court shall surcease for that saying and by force of the Kings Certificate c. F. N. B. 106. c. 86 Men and Women of Religion are to be excused from appearing at the Sheriffs turne or at Leets unlesse it be for some great cause Men of Religion And if they be distrained to come unto them they may have a writ De exoneratione sectae c. out of the Chancery to discharge themselves of such service c. F. N. B. 159. c. 87 If Land descend to Coperceners Suit of Copeceners for which onely one suit ought to be done In this Case if the Land be holden of the King then all the Coperceners ought to make a suit as well after the partition as before But if the Land be holden of another Lord then the eldest Sister or her Feoffée shall onely make the suit c. And if the Lord do distraine the other Coperceners for that suit they shall have a writ De exoneratione sectae c. to discharge themselves of it c. Pl. Co. 76. b. in The Lord Willoughbies Case 88 If the King direct his writ Coronatoribus in Com. L. this is to be understood in the Kings Case Coronatoribus de Com. L. for the Kings writs in such Cases The Kings Writ will admit a favourable construction for the fulfilling of the Kings full intent c. Finch 81. 89 For the Kings prerogate see Finch 81. c. and elswhere throughout his whole Book under the several heads when there is any difference betwéen this Case an that of a subject Finch 83. 90 The King never dieth Demise Le Roy. but in Law it is said the demise of the King and a gift unto the King without more trencheth to his Successors 91 The particular prerogatives due to the King by the Common Law may be for that most part referred to one of the eight heads hereafter following notified in the outward margent by their several and respective letters as followeth 1 Divine perfection A 2 Infinitenesse B 3 Majesty C 4 Soveraignity power D 5 Perpetuity F 6 Justice G 7 Truth H 8 Omniscience I Ideot 92 Because every subject is by Law in the protection of the King Co. l. 4. 126. a. 2. in Beverleys Case who therefore is of right bound to defend his subjects persons and Estates and for as much as an Ideot is not able to governe himselfe or order his Estate The Law of England hath provided the King to be his Tutor to Govern and order both his person and Estate For the Statute of Praerogativa Regis made in the 17 of E. 2. cap. 9. was nothing else but a declaration of the Common Law c. Rent reserved 93 It is a Maxime in Law that the Rent must be reserved to him Co. Inst p. 1. 143. b. 4. from home the State of the Land moveth and not to a stranger but some do hold that it is otherwise in the Kings Case Upon a joint purchase tenement in common 94 If Lands be given to A. de B. Bishop of N. and to a secular man Co. ibid. 190. a. 4. to have and to hold to them two and to their heires In this Case they are joyntenants For each of them take the Lands in their natural capacity But if Lands be given to the King and to a subject to have and to hold to them and to their heires yet they are Tenants in Common and not Ioyntenants For the King is not seised in his natural capacity but in his Royal and Politique capacity in Jure Coronae which in respect of the Majesty of his Kings Person cannot stand in jointure with the seisin of a subject in his natural capacity And therefore if there be two joytenants and the Crowne descend to one of them the joynture is thereby severed and they are become Tenant in Common c. Grant in Mortâ—aine 95 It appeareth by Littleton § 140. Co. ibid. 99. a. 3 which my Lord Coke saith is a secret in Law that in the Kings licence to grant land to a Corporation there needs not any non obstante of the Statutes of Mortmaine for the King shall not be intended to be mis-conusant of the Law and when he licenseth expressely to alien to an Abbot c. which is in Mortmaine he needs not make any non obstante of the Statutes of Mortmaine for it is apparent to be granted in Mortmaine and the King is the head of the Law and therefore praesumitur Regem habere omnia Jura in scrinio pectoris sui for the maintenance of his grant to be good according to the Law Descent of â—etrage to Feâ—ales 96 When an Earldome or Baronie descends to one Daughter or other heire Female she shall solely enjoy both the Dignity and Lands Co. ibid. 165. a. 3. but where it descends to more heirs Females then one the Lands shall be divided as amongst other Coperceners Howbeit in that Case the dignity cannot be divided neither shall the Eldest have it as to be a Countesse Baronesse c. But in such case the King who is the Soveraigne of Honor and Dignity may for the uncertainty conferre it upon which of the Daughters he please this is to be intended when the Ancestor dies seised of Peerage in Fée-simple
Holbornes Case And this is the cause that if Baron and Feme acknowledge a Statute or Recognizance this is void as to the Feme albeit she survive her Baron as it was holden P. 17 Eliz. in the Countesse of Lennox Case So if Baron and Feme acknowledge a Déed to be enrolled and it is enrolled accordingly this also is void as to the Feme Vide 29 H. 8. Faits enroll Br. 14. and 7 E. 4 5. 16 H. 7. 5. and 21 E. 3. 43. And the reason is because no such writ is depending against the Baron and Feme upon which the Feme may by the Law be examined F.N.B. 104. k. But if an Infant acknowledge a Statute or Recognisance it is not void but voidable by Audita quaerela Statute Recognizance during his non-age And the cause of the diversity is for that the Iudge in case of an Infant may by inspection know his age but not know whether a woman be covert or no. And the use is alwayes upon a common Recovery against Baron and Feme to examine the Feme and to grant a Dedimus potestatem to take upon examination her Conusance as in Case of a Fine for in that Case also there is a writ upon which she may be examined Vide 44 E. 3. 28. Howbeit a common Recovery against an Infant although he appear by Guardian Common Recovery shall not binde him for an Infant hath not such a disposing power upon the Land as Baron and Feme have but is utterly disableo by Law to convey or transferre his Inheritance or Frank-tenement to others during his minority And at this day a common Recovery appeares to be a Common Conveyance or Assurance of Lands c. Co. l. 11. 77. a. 4. in Magd. Coll. Case 36 If an Infant had conveyed lands to Quéen Eliz. by déed inrolled that grant had not béen established by the Act of 18 El. cap. 2. 18 El. cap. a. Grant al Roy. Fine which was made for the confirmation of grants made to the Quéen from primo to that time c. because the person of the Infant during his minority was absolutely disabled to make any conveyance at all by the Common Law So likewise if an infant had levied a fine to Quéen Eliz. and afterwards the said Act was made yet the infant notwithstanding the Statute might have reversed such fine by writ of Error And so it was resolved M. 32 33 El. in B. R. per Wray Chief Iust totam Curiam in Vaughans Case Co. ib. 78. a. 3. There is the same Law if Baron and Feme had made a grant of the Land of the Feme to the Quéen Baron Feme for neither had his béen made good by the said Act to have bound the feme after the Coverture or her heires Because the person of the feme covert is dis-abled to convey her Land unlesse it be by fine upon due examination and so also was it holden in the aforesaid Case of Vaughan 37 If an infant hath a Mannor by descent Advowson Usurpation unto which an Advowson is appendant F. N. B. 34. x. and suffers an usurpation to the Advowson when the Church happens to be void and after grants the Mannor in fée at his full age and after that the Advowson happens to be void again In this Case the infant shall present and not the feoffée for the Advowson was severed by the usurpation and yet the infant may present 38 If a Lease be made to Baron and Feme for life or yeares Waste the Feme shall not be punished for wast done by the Baron F.N.B. 59. i. Finch 26. after the Barons death 39 A man may have a Writ of accompt against a Feme Accompt as receptrix denariorum F.N.B. 110. d. or against a Chaplain But a man shall not have a Writ of accompt against an infant 40 Women shall not be compelled nor distrained to come to the Sherifs turne F.N.B. 161. a. b or to Leets and if they be distrained Femes nemy jure in Lees Dit Wayve they may sue the writ de exoneratione sectae c. to excuse themselves of that service and thereupon they may also have alias plura and attachment c. And for as much as Femes shall not be sworne in Léets to the King as men of the age of twelve yeares or upwards shall be when a Woman is out-lawed she is said to be waived and not out-lawed for she was never put nor sworne to the Law but a man is said to be out-lawed because he is or ought to be sworne to the Law and then for contumacy he is put out of the Law and so is said to be ut lagatus quasi extra legem positus And by the Rule of the Register two Women may joyne in such a writ c. 41 If an infant of tender age viz. under the yeares of discretion kill a man Felonie that is not felony in him Pl Co. 19. a. 2. in Fogassues Case because he wanted discretion and understanding and therefore the Law imputes it to his ignorance which he hath at that age by nature and so no default in him and therefore it is called In voluntary ignorance For he cannot be wise and dâ—scréet though he would but is ignorant by compulsion and therefore shall be excused And such an Act is properly said to be ex ignorantia where involuntary ignorance is adjudged to be the cause thereof Felonie So if a man de non sanae memoriae kill another albeit he hath broken the words of the Law yet he hath not broken the Law because he hath not any memory or understanding but mere ignorance which falls upon him by the hand of God and therefore the Law imputes it to involuntary ignorance and not to him so that he shall be excused for the doing of it c. Stat. 11 H. 8. cap 20. 42 The makers of the Statute of 11 H. 8. 20. Pl. Co. 50. b. 3. in Winbish and Talbois Case per Hales in consideration of the frailty and inconstancy of Women ordained that Law to restraine them from the alienation of the Lands of their deceased Husbands and because they did conceive that they might by flattering words be easily deluded and inticed to covin therefore they ordained in that Act a penalty against them as a bridle of their inconstancy to prevent them from being in that manner seduced c. Dower best possession 43 A Woman shall be endowed of the best possession of her Husband Finch 26. as if the Husband holds of Jo. S. per iij. d. who held over of an other by xx d. and Jo. S. release to the Husband so as now the Husband holds by xx d. the wife being endowed of this land shall hold onely by the third part of iij. d. and not of xx d. Dumbe 44 If a dumbe person bring an Action he shall
Executors or assignes alien that it shall be lawfull for the Lessor to re-enter and after makes his Wife his Executrix and dies the Feme takes a new Baron who aliens and the lessor makes a new lease before entry In this Case the new lease is not good being made before entry for albeit entry be but in the nature of a ceremony or circumstance yet in such Case and others of like kind it is necessary for the Lessor to make his entry before he can be capable of making a new Lease â—ornment 13 If a Villein purchase a reversion Co. Inst p. 1. 119. b. 2 Lit. §. 179. his Lord may not claime it before attornment be made by the Tenant of the land to the Villein for if he make his claime after the grant and before attornment such claime is void yet attornment is upon the matter but a bare ceremonie â—iâ—e poenae 14 A nomine poenae is not recoverable without an actual demand of the Rent for the non-payment whereof it became forfeited Hob. 133. Howel and Samback 103 Things executed and done more then executorie and to do Vide 40. 51. â—ery in 〈◊〉 without â—y void 1 A livery in view otherwise called a livery in Law is good to convey the Estate to the feoffée c. if he make entry Co. Inst p. 1. 48 b. 3 and so the Estate be executed during his life and the life of the feoffor but if either of them die before entry the livery is void â—ange not â—â—ed void 2 In exchange of Land the parties have no fré-hold in them in déed or Law before they execute the same by entry Co. ib. 15. b. 2. and therefore if one of them die before the exchange be executed by entry the exchange is void for the heir cannot enter and take it as a purchasor because he was named onely to take by way of limitation of estate in course of descent Co. ib. 51. b. 4 3 If a man let lands to another for term of yeares Interest in a Lease for yeaâ—â—â— good without entry c. albeit the Lessor die before the Lessée enter yet he may well enter into the same lands after the Lessors death because in case of a Lease for yeares the estate is executed and the interest of the term doth passe and vest in the Lessée before entry And therefore the death of the Lessor cannot devest that which was vested before Co. ib. 52. b. 4. 4 If the Lessor by his Déed licence Licence to alien good after the Lessors death the Lessée for life or yeares who is restrained by Condition not to alien without licence to alien and the Lessor dieth before the Lessée doth alien yet is his death no countermand of his licence but that he may alien for the licence exempteth the Lessée out of the penalty of the Condition and it was executed on the part of the Lessor as much as might be And so it was resolved M. 3. Jac. in Com. Ba. So likewise if the King licence to alien in Mortmaine and dieth the licence remaineth good notwithstanding the Kings death c. Co. Inst p. 1. 76. b. 3. 5 If one levie a Fine executory as sur grant and render to a man and his heires and he to whom the land is granted and rendred Upon a fine executory no Wardship dieth before execution and his heir being within age entreth In this case he shall not be in Ward For his auncestor at the time of his death was not tenant to the Lord because the Fine wos not executed c. Co. ib. 128. b. 1. 6 Vpon plea in disability of the person by reason of Out-lawry Out-lawry 〈◊〉 perfect befâ—â—â— the return of the Exigent before the Defendant can disable the Plaintiffe the Out-lawry must be perfectly executed and appear upon Record for the judgment after the Quinto exactus given by the Coroners in the County Court is not sufficient but the Writ of Exigent must be returned because before the Return of that Writ it is not perfectly executed nor doth appear upon Record c. Co. ib. 130. a. 4 7 A man in execution in salva custodia shall not be delivered by a protection for then the suit is executed and the Law hath her end c. After execâ—â—â—an no protection Writs of execution admit no protectioâ— Co. ib. 131. a. 3 8 In judicial Writs which are in nature of actions where the party hath day to appear and plead and therefore yet somewhat to doe a protection doth lie as in Writs of Scire facias upon Recoveries Fines Iudgments c. Albeit by the Statute of W. 2. cap. 45. essoignes and other delayes are ousted in Writs of Scire facias yet a protection doth lie in the same so it is in a Quid juris clamat and the like But in Writs of execution as Habere facias seisinam Elegit execution upon a Statute Capias ad satisfaciendum fieri facias and the like no protection can be cast for the Defendant for then the suit is ended Neither hath the Defendant then any farther day in Court and the protection extendeth onely ad placita quaerelas and must be allowed by the Court which cannot be but upon a day of apparance Co. ib. 139. a. 2. 9 In a Quare Impedit if the Plaintiffe be non-suit after apparence In a Quaâ—e Iâ—pedit non-sâ—â—â— or discontin a good barrâ— the Defendant shall make a title and have a Writ to the Bishop And this is peremptory to the Plaintiffe and a good barre in another Quare Impedit And the reason is for that the Defendant had by judgment of the Court a Writ to the Bishop which is a judicial Writ and in the nature of an execution And therefore the Incumbent that cometh in by that Writ shall never be removed which is a flat barre as to that presentation And of this opinion is Littleton in our Books And the same Law and for the same reason it is in case of a discontinuance Co. ib. 139 a. 3 10 In an Attaint if the Plaintiffe after apparence be non-suit In Attainâ— non-suit peremptory it is peremptory but if the processe in the attaint be onely discontinued the Plaintiffe may have another Writ of Attaint because upon the non-suit there is a judgment given but not upon the discontinuance c. Account Nâ—n-suit 11 After an award to accompt the Plaintiffe may be non-suit Co. ib. 139 b. 2 because that is onely an interlocutory award of the Court and no final judgment Recognisance c. executory not binding executed conâ—â—â— 12 If there be two joyntenants of an estate in Fée-simple Co. ib. 184 b. 2. and one of them acknowledgeth a Recognisance or a Statute or suffereth a judgment in an action of Debt c. and dieth before execution had it shall not be executed
b. 4 and maketh a lease of life of both of them reserving two shillings Rent in this Case albeit several liveries must be made at several times yet it is but one intire Rent in respect of the necessity of the Case and he shall distraine in one County for the whole and make one avowry for the whole A condition good by necessity 12 B. seised of a Mannor with an Advowson appendant Co. l. 2. 77. b. 1 The Lord Cromwels Ca. by indenture bargaines and sels it to A. and covenants to suffer a Common Recovery to the use of A. in fée rendring to B. 42 l. per annum and also to levie a fine to A. and that A. shall render by the said fine the said Rent provided that A. shall grant the Advowson to B. for life The recovery is had B. and A. levie the fine to P. who render the Mannor with the Advowson to A. and the Rent to B. proclamations passe A. dies before the grant of the Advowson the Church becomes void in the life of B. E. enters as heir of A and B. enters for the Condition broken In this Case it was objected that the conusance of B. had extinguished the Condition but one reason amongst the rest against that was this that the render of the Rent could not have been made to him And albeit a Fine be of so high a nature that it will not permit a naked Averrement against the purport and conusance thereof yet when the Law requires one for necessity or conformity to joyne with another in a Fine it permits him also to shew the truth of the matter to avoid prejudice and conclusion Vide ibid. plus upon the same ground Co. l. 3. 73. b. 1 Westbies Case 13 If the Sheriff hath in his custodie divers persons in Execution The Sheriff is to take notice at his peril who are in execution and die and afterwards a new Sheriff is made it behooves the new Sheriff to take notice at his peril of all the Executions which are against any person that he finds in the Gaol and this is for necessity for there is none to make delivery of them or to give him notice who are in Execution and who not And it is no mischief to the Sheriff if he keep them safe until he hath perfect knowledge of all the Executions But if he may with impurity suffer suffer such as are in Execution to escape great inconvenience would ensue thereupon Co. l. 5. 40. a. 4. b. 3. Dormers Case 14 Albeit regularly a Writ of Entry in the Post A Writ of Entry upon an Advowson c cannot be of an Advowson as appeares by the Statute of W. 2. cap. 5. 4 E. 3. 162. 14 H. 4. 33. Nor of a Common of Pasture as also appears 4 E. 3. 146. 27 H. 8. 12. yet for a Common Recovery being a common assurance and by consent of parties to cut off an entaile the Law for necessities sake permits it for otherwise there could be no assurance of an Advowson Common in Grosse c. to barre remainders or reversions expectant upon an estate tail Co. l. 5. 109. b. 4. Foxleys case 15 If a Felon be arrested for felonie and as be is in conveying to the Gaol he flyes from them that convey him No felony to kill one in pursuit and in the pursuit they cannot re-take him without killing him and so they do kill him If the whole matter and also the flight be presented before the Corâ—ner or any other having authority to enquire of Felonies albeit the party was so killed yet he shall forfeit all his Goods and Chattels because they were urged to do it by necessity And with this agrées 3 E. 3. Coron 287 312 328. And there it appears that it is not Felony in those that pursue him So 3 E. 3. Forf 25 if an true man kill a thief that would robbe him if the thief goe not back the true man shall forfeit nothing for the same reason Co. l. 6. 21. b. Butler and Goodals Case 16 Albeit by the Statute of the 21 H. 8. Exceptions out of the Stat. of Non-residence of non-residence the Parson ought to dwell upon his Rectory viz. in the Parsonage House and not in any other House though it be within the Parish for the Statute intends not onely serving of the Cure or for Hospitality but also for the maintainance of the Houses and habitation of the Parson not onely for himself but likewise for his Successors that they may also maintaine Hospitality there yet lawful imprisonment without Covin or if there be no Parsonage House to live in are good excuses of non-residence and it was held in the Exchequer Tr. 39 El. that sicknesse without fraud is also a good excuse viz. where the patient removes for advice in Phisick bona fide for better aire and for the recovery of his health for these cases are exceptions out of the Statute by construction of Law Co. l. â— 47. a. 1. Dowdales case 17 In Debt against Executors A Place certaine being pleaded for necessity restraines not Jurors verdict the Defendant pleads fully administred the Plaintiff replies that he had Assets in Exeter and the Iury finds Assets in Ireland and it was adjudged for the Plaintiff For when the place is material as when it is parcel of the issue there the Iurors cannot find the point in issue in any other place for by special pleading the point in issue is restrained to a certaine place But when the place is onely named for necessity and conformity and is also parcel of the issue there the Iurors may find Assets in any other County or place than where they were alleadged in the Replication So also in 10 El. 271. Dyer in Debt against the heir he pleads riens per discent generally in this case the Plaintiff cannot replie in so general a manner for then no trial could be made thereof but in such case for conformity and necessity of a trial he ought to name a certaine place as he did in that case viz. in a Parish and Ward in London and upon evidence given by the Plaintiff the Iury found Assets in Cornewal and it was adjudged good for the Law is that the Plaintiff shall have in Execution all the Lands that the heir hath And therefore in such case a certaine place is named for necessity yet the Iurors may find all that which by the Law shall be chargeable in such case in what Town or County soever it be 〈◊〉 of rent â—y the Feoffor â—â—od 18 In Bredimans Case in the 6 Rep. it was said Co. l. 6. 58. a. 1. Bredimans case that if there be Lord and Tenant and the Tenant make Feoffment in Fée here before notice and tender of the Arrerages the Feoffor may give Seisin of a Rent because he is Tenant as to the Avowry 8 H. 6. 18. for in such
Indenture for yeares c. Co. l. 9. 77. a. 2 in Combes Ca. They cannot make Indentures in their owne Names but in the Name of him that gives them warrant But if a man by his will in writing devise that his Executors shall sell his Land and die in that Case the Executors in their owne Names may sell the Land for necessity because he that gave them authority by his will which tooke no effect until after his death is dead And yet in such Case the Devisée is by the Divisor Graine bonum â—eriturum 27 If a man enter into bond conditioned to pay the lesser summe at a day to come if he tender it at the day Co. l. 9. 79. a. 4 Peystets Case he may after plead that tender and shall say uncore prist But if a man be bound by Obligation in 100 quarters of Graine to pay 50 quarters here if the Obligor tender them at the day and the other refuse he shall plead it without saying uncore prist because the Graine is bonum periturum which cannot be kept any time and would be chargeable for the Obligée to kéepe Grant â—f an â—â—â—ce by a â—â—hop good â—â—d not withâ— the stat of 〈◊〉 28 The Bishops grant of an Ancient and necessary Office is by construction exempted out of the general restraint of the Statute of 1 El. for as Bracton saith fol. 247. Illud quod alià s licitum non est Co. l. 19. 61. a. 3 The Bishop of Sarmas Case necessitas facit licitum necessitas inducit privilegium quod Jure privatur And if Bishops should not have power to grant such Offices of service and necessitie for the life of the Grantées but that their Estates should depend upon uncertainties as upon Death Translation c. of the Bishop then persons of best abilities would never serve them in such Offices or at least would not discharge them with alacrity â—â—eed not â—â—â—ed proâ—â—d by witâ—â—es 29 Regularly déeds pleaded in Court shall be produced in Court Co. l. 10. 92. b. 3 Doctor Leyfeilds Case for it were dangerous to suffer them to be proved by Witnesses or by a Copy because the razings enterlivings and other imperfections cannot thereby appeare to the Court nor upon what Condition limitation or power of revocation they were made whereby Truth Iustice and the true reason of the Law might be subverted Neverthelesse in great and notorious extremities as by casualty of fire where all the evidences in his house have béen burnt if that appeare to the Iudges they may in favour of him that hath received such great losse by the sire suffer him upon the general Issue to prove the déed in evidence to the Iury by witnesses least affliction should be added to affliction and if the Iury find it although it were not shewed in evidence this is good enough as appears in 28 Ass P. 3. 〈◊〉 repaire Bankes reâ—â—ed against â—â—al flouds 30 If a man by proscription is bound to repaire a Banke or Wall against water-flouds either salt or fresh and by his default the water breakes in he shall repaire it at his owne charge Co. l. 10 139. a. 3. Knightleys Case and the rest of the parties interessed therein may recover their damages against him in an Action upon the Case But if in such Case he maintaine the Wall or Banke at the usual height in good repaire and by a suddaine an un-usual increase of waters the Wals or Bankes are thrown down or the waters over-flowes the Bankes In such Case the Commissioners of Sewers by the Statute of 23 H. 8. 5. are to tax all persons that have there any Lands Common of Pasture or profit of fishing or may other that may suffer any losse or dis-advantage thereby according to the several quantities of their Lands c. â—int fine â— good exâ—â— in some â—ses 31 A joint fine imposed upon two Capital priviledges in a Léet Co. l. 11. 43. b. 3 Godfreys Ca. because they refused to present with certainty they had payd the Léet was adjudged void because it was jointly and not severally set yet in some Cases a Fine or Amerciament shall be imposed upon divers persons Ioyntly sometimes upon a Towne as for the escape of a Murderer other-wayes upon an Hundred as for a Robbery and sometimes upon a whole County c. and this for necessity by reason of the uncertaine knowledge of the persons offending and the infinity of the number Pl. 9. b. Fogassaes Case ib. 13. b. 2. 32 Effusion of Bloud and the killing of men are prohibited by the Common Law yet every man in his owne defence A tempest excuseth on uncertain agreement with the Custome and as a Champion in trial in a Writ of weigh and the like may kill others and here the one is for the salvation of his life in his defence and the other for the necessity of trial So likewise by the Common Custome of the Realme Inholders are chargeable with the goods of their Guestes being lost or imbeziled out of their houses yet if their houses be broken by the Kings Enemies and so the goods taken from them they shall not be chargeable therewith For in reason such violence cannot be resisted and therefore it shall infringe the violence of the Custome Pl. ibid. 19. b. So in Fogassaes Case in the Commentaries when by reason of the tempest part of the Woad was cast into the Sea and thereby the quantity remaining could by no meanes be discovered before it was landed and weighed the un-certaine agréement made with the Customer before the landing thereof was adjudged good 1 E. 6. cap. 13. and so the rigor of the tempest did excuse the rigor of the Statute Pl. 13. b. 3. in Fogassaes Ca. 33 If a Felon breake Prison Breaking of Prison and â—â—â—verance of Jâ—rors lawfull by necessity it is Felony by the Statute of De frangentibus prisonam yet if the Prison be fired and they that are within breake the Prison to save their lives this shall be excused by the necessity of the change So in 14 H. 7. fol. 29. Bract. Verdict 19. Stamford cap. 7. fol. 15. The Iurors who were sworne upon an Issue for feare of a great tempest forsake the house where they were and dispersed themselves and it was there held that they should not be amercied for it but their Verdict afterwards was held good for the necessity of the occasion whereas otherwise they should have béen â—rievouâ—â—y amercied Pl. 18. b. 2. in Fogassaes Ca. 34 In 22 Booke of Ass Pl. 56. Lawfull to beat a mad man where a man was enraged and of non â—â—nâ—e memoriae and did great hurt whereupon a man together with his parents tooke him bound him and beat him with scourges and it was there holden that they might justifie for the avoidance of the great hâ—rt that he might do being of non sanae
being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
thing collaterall and transfers or convey nothing as if the Major and Cominalty of London have an Estate for the life of I. S. if in this Case the Major and Cominalty attorne to the grantée of the reversion the law requires that it shall be by déed for notwithstanding that the grantée comes not in by them that attorne and that the attornment is but a bare consent yet in pleading the déed of Attornment ought to he shewed for in such Case the déed is requisite ex constitutione Legis but when a déed is onely requisite ex provisione hominis in such Case the provision of a man shall not charge the judgement of the law as if a man make a lease for years of land to A. upon condition that he shall not assigne it over but by déed and not by parol in this Case ex provisione hominis the assignement ought to be by déed yet because ex constitutione legis the déed is not necessary for the assignée he may plead the assignement without shewing the déed â—â—render â—arranty â—â—â—â—ment 14 Fortior aequior est dispositio legis quà m hominis Co. l. 6. 69. b. 3 in Sir Mâ—ile Finches Case and therefore he that hath a future interest cannot surrender it by any expresse surrender but by taking of a new lease which is an Act and amount to a surrender in law it may be surrendâ—ed and determined as it is held in 35 H. 6. c. vide suprà cap. 5. So if the father be enfeoffed in Fée and the Feoffor warrant the land to him and his heires here the assignée shall not vouch but if the father enfeoffe his sonne and heire apparent with warranty and die in this Case the heire being in truth assignée shall vouch for the law which hath determined the warranty of the father to the son will give the son benefit of the first warranty as it was adjudged in 43 E. 3. 5. by which it appeareth that the act in law is both more strong and more equal The principal Case therein effect then the Act of the party can be So also if A. Lessée for 50 yeares demiseth to B. for 10 yeares and then the reversioner levies a fine to B. and his heires who enfeoffes D. who outs B. and B. re-enters upon D. here the entry of B. is a good attornment in Law and stronger then an expresse attornment Co. l. 8. 82. a. 3 in Vivyors ca. 15 Albeit a man be bound in an Obligation to stand to abide c. Authorities revocable an Atbitrament yet he may contermand it For a man cannot by his owne Act make such an authority power or warrant as shall not be countermandable which by the Law and in its one nature is countermandable as if I make a Letter of Attorney to make livery or to sue an Action in my name or if I assigne Auditors to take an accompt or if I make one my Factor or submit to an Arbitrament albeit these are made by expresse words irrevocable or if I bind my selâ—e that they shall stand irrevocably yet they may be revoked So if I make my last Will Irrevocable yet I may afterwards revoke it For my Act or my Words can not alter the judgment of Law and make that irrevocable which of its owne nature is revocable Co. l. 10. 67. b. 2 in the Church wardens of St. Saviour in Southwarke their Case 16 The Church-wardens of St. Saviour in South-warke having a Lease of the Rectory almost expired contracted Surrenders 〈◊〉 Law that the Church-wardens then having and possessing the said Rectory would pay 20 l. fine and surrender the old Letters Patents to the King and in consideration thereof a new lease should be granted them They paid the 20 l. fine delivered into the Chancery the Letters Patents and discharged the fées there but did not take care that the Letters Patents were â—acated and yet the King was not deceived in his grant but the lease adjudged good For it was a good surrender in Law because albeit the lessées were a corporation aggregate of many and could not make an expresse surrender without déed in writing under their seale yet they may by Act in Law surrender their term without any writing So if the Prior without the consent of the Covent make a lease for yeares rendring Rent if the Prior by déed expressely release the rent and die the Successor shall recover the arrerages but if the Prior out the lessée and die this discharge in law shall discharge the rent that incurred during the Outer against the Successor as appears in 34 H. 6. 21. Co. l. 1â— 80. b. 4 in Lewes Bowles Case 17 The Estate of a Tenant in Taile after possibility Tenant is taile after possibility â— c. ought to be a Râ—maine and residue of an Estate Taile and this by the Act of God and not by the limitation of the party ex dispositione Legis and not ex provisione hominis and therefore if a man make a Gift in Taile upon Condition that if he do such an Act that he shall then have it but for life he is not Tenant in Taile after possibility c. for this is ex provisione hominis and not ex dispositione Legis but it ought to be the remaine and residue of an Estate Taile and that by the Act of God and the Law viz. by the death of one of the Donées without issue And therefore if Tenants in special taile recover in an Assise and after one of them die without issue and afterwards he that survives who is Tenant in taile after possâ—bility is re-disseised he shall have re-disseisin for the francktenement which he had before for it is parcel of the Estate taile Vid. sup Case 4. Co. l. 8. 152 a. 2 Edw. Althams Case 18 If the Disseisée release all Actions to the heire of the disseisor thereby his right is gone in judgment of Law Release of right for when a man hath not any other meane to come by his Land but onely by way of Action if he release all Actions by such release his right is Inclusive in Iudgement of Law gone because by his own Act he hath barred himselfe of all meanes and remedies to recover or attain thereunto but if the heire of the Disseisorâ— make a Lease for life the remainder in fée and the disseisée release to the Tenant for life all actions which he hath against him and after Tenant for life die the disseisée shall have an action notwithstanding such release against him in remainder for he did but release the action and the act in law will never extend the act of the party more largely then his expresse words as if the Lord disseise his Tenant and make a lease for life this release in law shall not entend farther then for the life of the lessée for true it is Fortior potentior est dispositio Legis quà m
and Talbois Case because he did not in answering that suit take such advantages as the Law allowes in such Cases as vieu essoine and the like but immediately appeares and suffers the Demandant to recover by nihil dicit For the Law presumes unlesse there be covin or other neglect or restraint which cannot be avoided that the party interessed will take all advantages that the Law allowes to make good his owne cause which advantages are the birth-right of the subject as Lands or other Inheritance and when they are waved or neglected the Law implies covin or some other miscarriage Co. Inst p. 1. 46. a. 4. 34 The King grants lands to A. in taile Tenant in â—aâ— Lease Primer seisâ— to hold by Knight-service A. makes a lease to B. for 31 yeares reserving rent A. dies his son and heire of full age and all this if found by Office now here as to the King this lease is not of force for he shall have his primer seisin as of land in possession but after livery the Lessée may enter and then if the issue in taile accept the Rent the leafe shall bind him for the Kings primer seisin shall not take away the Election of the issue in taile because it may be the Rent was better then the land and so the Law will presume that his acceptance tended to his advantage and therefore he shall be bound thereby Co. ib. 46. b. 1. and Pl. 437. a In like manner Tenant in taile makes lease a for 40 years reserving a Rent to begin 10 years after Feofment Tenant in taile dies the issue enters and enfeoffes A. the ten yeares expire the lessée enters now in this Case also if A. accept the Rent the lease is good for he shall have the same Election that the issue in taile had either to make it good or to avoid it But because the lessée accepts the Rent the Law presumes it was for his advantage so to do and therefore thereupon adjudged the lease still good notwithstanding such entry of the heire before it commenced Litt. §. 559. 35 If there be Lord and Tenant and the Tenant take Feme Acceptance good attornment and after the Lord grants the services to the Feme and her heirs and the Baron accept the Déed In this Case after the death of the Baron the Feme and her heirs shall have the services for the acceptance of the déed by the Baron is good attornment albeit the services are in suspence during the coverture Litt. §. 573. So likewise if a man let land to another for term of life and after confirmes by his déed the Estate of the Tenant for life the remainder to another in fée and the Tenant for life accepts the déed this is a good attornment in law to make the Estate in remainder good Co. l. 3. 86. b. 2. in the Case of Fines 36 Every fine levied shall be intended to be levied with proclamations according to the Statutes in that behalfe provided Fines because that is most beneficial for the Conusée Dier 244. 59. 8 Eliz. 37 There were four Defendants in an Assise or plaint of thrée Messuages Assise thrée of them severally undertake the Tenancy of the several Messuages and plead several barres and to the residue Nul tort the fourth takes upon the intire tenancy of all without that c. and pleads also barre at large In this Case the Plaintiffe at his peril is to choose his Tenant because the law presumes that he will do it for his best advantage 117 And therefore the Law believeth against the party whatsoever is to his prejudice Co. Inst p 1. 52. a. 4. 1 If one as Procurator or Attorney to another present to his owne benefice he puts himselfe out of possession Present Benefice because it is his owne act and the presentée comes in by the institution an induction of the Ordinary Co. ib. 55. b. 3. 2 If Lessée at will or for life sow the land Tenant for life or wil Grant Sowet and the lessor determines his Will or dies before the graine is ripe yet the lessée shall have it because in either of the said Cases the end of the term is uncertaine either upon the Will or death of the lessor which cannot come within the lessées power to prevent but if lessée for yeares who may know the end of the term sow the land she shall not have the graine Litt. §. 68. Co. ib. 56. a. 4. because his term is certain And therefore the Law will attribute the sowing of the land to his owne folly So if lessée at will sow the ground with Corne c. and after he himselfe determines his will and refuseth to occupie the ground In that Case the lessor shall have the grain for otherwise the lessor should lose his Rent and the lessée hath determined it by his own act In like manner if a woman that holdeth land durante viduitate low the ground and taketh husband the lessor shall have the emblements because the determination of her Estate grew by her own act So likewise where the Estate of the lessée being uncertaine is defeasible by a right paramount or if the lease determine by the act of the lessée as by forfeiture condition c. there he that hath the right paramount or that entreth for any forfeiture c. shall have the Corne causa qua supra â— and Teâ—â—â—dship â—ease 3 If there be Lord and Tenant by Knight-service Co. ib. 83. b. â— and the Tenant dieth his heire being within age the Lord waiveth his wardship as he may and taketh himselfe to his Seigniory In this Case the Lord shall not have reliefe at his full age because he might have had the wardship of the body and land if he had not neglected his time 〈◊〉 emptor 4 By the Civil law every man is bound to warrant the King Co. ib. 102. a. â— that he selleth or conveyeth albeit there be no expresse warranty but the Common Law bindeth him not unlesse there be a warranty in déed or in Law for the Common Law believeth against the party things done to his prejudice and therefore in such Case Caveat Emptor â—â—nage by â—â—ssion 5 If a man being brought into a Court of Record by course of Law will there acknowledge himselfe to be a Villein albeit he was not a Villein before he shall be for ever after a Villein in grosse Littl. §. 185. Co. Inst p. 1. 122. b. 2. and therefore if a praecipe be brought against one he may confesse himselfe Villein to a stranger and that he holds the land in Villeinage of him and this is good and shall bind him and if in that Case the Demandant replie that the Tenant the day of his writ purchased was a Frée-man and thereupon issue is taken and he is tried to be frée yet he shall remain
intire yet it was conceived by many that it is good for the moity because the party to the Condition hath dispensed with the Condition by his acceptance of the Estate Dier 140. Pl. 43. 3 4 P. M. 80 If Lessée for years by indenture accept of another lease though it be but by parol to begin immediately A surrender Law this is a surrender in Law of his first lease because by his acceptance of the last lease he admits himselfe out of possession and that the Lessor hath lawfull power to demise him a new one Vide Dier 279. 11. Dier 144. 57. c. 3 4 P. M. 81 The Statutes of 27 E. 3. 8. and 28 E. 3. 13. of the Staple were made for the benefit and in favorem alienigenarum for trials per medietatem linguae yet if an Alien be Plaintiffe Trial per 〈◊〉 dietatem liâ—gua and omit the advantage of requesting it whereupon a general venire facias issueth out and is returned some say that thereby he hath slipt his time and that the Iudges are not bound ex officio to award any such special writ by reason of the said Statute for it appeareth not unto them by the Record quòd una pars sit alienigena and by the Common Law the trial was by all English Howbeit Treason shall not be tried per medietatem linguae Dier 158. Pl. 32. 4 5 P. M. 82 If a Guest come to a Common Inne to lodge there A Guest robbed and the Host saith that his house is already full of Guests and is not willing to admit him and the Guest saith that he will make shift amongst the other Guests and is there robbed of his goods in such Case the host shall not be charged therewith because he refused him but the Guest shall beare the losse himselfe Vide Dier 266 9. Dier 164. 57. 4 5 P. M. 83 If a man hath goods to value of 100 l. and is in Debt 20 l. and by his will gives his wife the moity of all his goods Goods bequeathed to be equally divided betwixt her and his Executors and then he makes Executors and dies in this Case if the Executors discharge the Debt to the Creditor by sale or other satisfaction out of the goods themselves the Feme shall have onely the moity of the residue viz. 40 l. but if they pay the Debt by their owne money the Feme shall have the moity of all the goods viz. to the value of 50 l. so as the Executors have assets Dier 200. 62. 3 Eliz. 84 The King demiseth a Messuage rendring Rent Surrender and afterwards the lessée takes a patent of the office of the kéeping of the said house this séemes to be a surrender in law of the lease Dier 226. 40. 6 Eliz. 85 In an Ejectione firmae against two Ejectione â—â—mae one appeares and pleads the general issue and processe is continued against the other who also appeares and pleads entry of the Plaintiffe into the land since the last continuance in abatement of the writ whereupon the Plaintiffe demurres afterwards the issue above was found for the Plaintiffe yet he shall not have judgment for by the demurrer he hath confessed the entry which abates his own writ Dier 261. 28. 9 Eliz. 86 The rasing of a lease in any place though not material by the lessée himselfe makes the lease void Rasing Hob. 119. Wood and Budden 87 In Trespass in 8 acres of Pasture in Tollard Royal Trespas the Defendant pleads that W. E. of Salisbury was seised of Cranborne Chase And so prescribed in liberty of Chase and that the said Chase did extend it selfe as well in and thorough the said 8 acres as the said Towne of Tollard Royal and â—ustifies the Trespass for use of the chase The Plaintiffe maintains his declaration and traverseth that the Chase extends not it selfe as well to the 8 Acres as to the whole Towne And this issue being found for the Plaintiffe it was moved in arrest of judgment that this issue and Verdict were faulty because if the Chase did extend to the 8 Acres onely it was enough for the Defendant and therefore the finding of the Iury that it did not extend as well to the whole Towne as to the 8 Acres did not conclude against the Defendants right in the 8 Acres which was onely in question But it was answered by the Court that there was no fault in the issue much lesse in the Verdict which was according to the issue but the fault was in the Defendants plea who takes the exception for he put in his plea more thou he néeded viz. the whole Towne which being to his owne dis-advantage and to the advantage of the Plaintiffe there was no reason for the Plaintiffe to demurre upon it but rather to admit as he did and so to put it in issue And so judgement was given for the Plaintiffe 118 When several remedies are given the party to whom the Law giveth them hath thereby also election given him to take which he will â— writ of anâ—â—y or â—lâ—â—se 1 If a man grant by his déed a Rent-charge to another Litt. §. 219. Co. Inst p. 1. 145. a. 1. and the Rent is arrere the grantée may choose whether he will sue a writ of Annuity or distraine for the Rent arrere but in this Case he shall but choose once for if he recover in a writ of Annuity he shall never after distraine or if the distrainâ— and avow in Court of Record he shall never after bring a writ of Annuity because an avowry in a Court of Record being in nature of an Action Co. ib. 145. b. 4. is a determination of his election before any judgment given Electio semel facta placitum testatum non patitur regressum Quod semel placuit in electionibus amplius displicere non potest â—ction of â—â—at or 〈◊〉 So if a Rent-charge be granted to A. and B. and their heires Co. ib. 146. a. 1 A. distraineth the Beasts of the grantor who sueth a replevin A. avoweth for himselfe and maketh conusance for B. A. dieth and B. surviveth Here B. shall not have a writ of Annuity for in that Case the Election and avowry for the Rent of A. barâ—eth B. of his election to make it an Annuity albeit he assented not to the avowry And here is a diversity to be observed betwéen the Case above-said where the grantée makes it either real or personal at his Election real when he distraines or personal when he brings his writ of Annuity and where a man may have Election to have several remedies for a thing that is méerely personal or méerely real from the beginning As if a man may have an Action of account or an Action of Debt at his pleasure and he bringeth an Action of account and appeare to it and after is non-suit yet may he have an Action
the Guardian cannot lose the Wardship An Infant payes releif 3. Littleton saith Litt. S. 112. Co. ibid. 83. b. 4. That the heire of a Tenant by Knight-service ought not to pay releife untill his age of twenty one years yet in some case the Heire shall pay releif when he was within that age at the time of the death of his Ancestor As if a man holdeth Lands of the King by Knight-service in Capite and of a common person other Lands by Knight-service and dyeth his heire being within age here the King hath the Wardship both of body and Lands by his Prerogative untill the full age of the heire and therefore in this case the Heire though he be within age shall immediately pay releif to the other Lord for as the Law giveth away the Wardship to the King by reason of his Prerogative so doth it in respect thereof reserve to the other Lord all that conveniently may be reserved viz. his releif The Lord shall not have the body 4. A man seised of Land holden by Knight-service hath issue a Daughter who takes Baron and hath issue a Son Litt. S. 114. Co. ibid. 84. a. 3. the Tenant dyes and also the Mother in this case the Son shall not be in ward for his body living his Father but yet the Lord shall have the Wardship of the Land untill the full age of the Son for albeit in this case the Law doth give the custody of the body to the Father and barreth the Lord thereof yet the Lord shall have the Wardship of the Land by force of the tenure of the first creation thereof So it is also if the Father marry his heire within age and dyeth in this case also the Lord shall have the Wardship of the Land Co. ibid. 88. b. 3. 5. Where the Father is Guardian of his Son for Land holden in Knight-service this is in respect of his paternall naturall custody Father Guardian in socage accountable and therefore in such case he shall not be answerable for his marryage or custody of his Lands but where the Father is Guardian by reason of a tenure in Socage he must by Law be accountable to the Son both for his marriage and also for the profits of his Lands which he should not be if he had the custody of his eldest son in this case as his Father in respect of nature And because the Law doth appoint him to be Guardian in Socage it compels him also to be accountable for the act of Law doth never any man wrong Co. ibid. 134. b. 2. Anic super carta cap. 15. 28. E. 1. 6. Before the Statute of Articuli super cartas In reall actions fifteen dayes returne in all Summons and Attachments in Plea of Land were contained the terme of fifteen dayes and it appeareth not onely by that Statute but likewise by the ancient Authors of the Law who wrote before that Statute that this was the ancient common Law And the reason of giving so many dayes in reall Actions was the Recovery being so dangerous that the Tenant might the better provide himself both of answers and proofes Co. ibid. 132. b. 2. 7. If I be disseised and my Brother release with Warranty Descent upon Profession and is afterwards profest in Religion and thereby the Warranty descend upon me In this case albeit the Law binds me by the Warranty yet I being his heire the Law gives me by descent such Inheritance as my Brother had at the time of his Profession Co. ibid. 137. a. 3. Litt. S. 203. 8. Albeit by an act in Law a man may have damnum Profession dischargeth wardship yet in such case it is alwayes absque injuria as if a Ward enter into Religion and be profest hereby the Lord loseth the Wardship of the Land which may be said damnum for by such Profession the Ward is civiliter mortuus a dead man in the Law and cannot hold any Inheritance neither can the Guardian continue the Wardship of the land because by the civill death of the Ward the Inheritance is descended to another but this damnum is absque injuria for by such Profession the land descends to another who is either to be in Ward or to pay releif And therefore in such case the law giveth the Guardian no remedy neither by any formed Writ nor by Action upon the case Co. Inst pars 1. 138. a. 3. 9. If Tenant for another mans life by his Deed grant a Rent charge to one for twenty one years Cesty que vie dyeth A annuity good the land evicted hereby the Rent-charge is determined and yet the Grantee may have during the years a Writ of Annuity for the arrearages incurred after the death of Cesty que vie because the Rent charge did determine by the act of God and the course of law Actus Legis nemini facit injuriam So it is also if land out of which a Rent-charge is granted be recovered by an eyent title and thereby the Rent-charge is avoyed yet the Grantee shall have a Writ of Annuity because the Rent-charge is avoyded by the course of law and so it was holden in Wards case cited in Co. l. 2. fo 36. in Heywards case against an opinion obiter in 6 H. 6. 42. a. Vide Max. 114. Ex. 13. Co. ibid. 149. a. 1. 10. A. hath common of Pasture sans number in twenty Acres of land Common sans number not apportioned and ten of these Acres descend to A. the common sans number is intire and uncertaine and cannot be apportioned but shall remaine but if it had been a Common certaine as for ten Beasts in that case the Common â—â—â—dition shall be apportioned And so it is also of common of Estovers Turbary Piscary c. And it is to be observed that in none of these cases or the like the descent which is an act in Law shall worke any wrong to the Ter-tenant for neverthelesse he shall have thereby that which belongeth to him for the Act in Law shall never worke any wrong The like 11. Of Common or Corody certaine as for ten beasts Co. ibid. 164. b. 4. so many Dishes in certaine c. partition amongst Coparceners or Apportionment may be made for this can worke no wrong to the Ter-tenant But if a man have reasonable Estovers as House-boot Hay-boot c Appendant to his Free-hold they are so intire that they shall not be divided amongst Coparceners So likewise if a Corody uncertaine be granted to a man and his heirs and he hath issue diverse Daughters this Corody shall not be divided between them there is the same Law also of Common sans number for in these cases and the like if Estovers Common Piscary or Corody uncertaine should be partable amongst Sisters such partition would worke a wrong to the Ter-tenant Co. ibid. 165. a. 1. who should be opprest and over-charged thereby which the Law
he shall be discharged because he hath a property in them and therefore he ought to keep them no otherwise then his owne but if he that gaged them tendred the money before the stealing and the other refused to deliver them then for this default in him he shall be charged The like 11. If A. leave a Chest locked with B. to be kept Co. ibid. a. 4. Pasch 43. El. inter Southcote and Bennet in detinue and taketh away the key with him and acquainteth not B. what is in the Chest and the Chest together with the goods of B. are stollen away B. shall not be charged therewith because A. did not trust B. with them as this case is neither were they lost by the default or negligence of A. And in all such cases what is said of stealing is also to be understood of Shipwrack by Sea fire by lightning and other like enevitable accidents And therefore when a man receives anothers goods to keep it is good to receive them with this caution To keep them as his owne or at the perill of the Owner Vouchee 12. If upon a sequatur sub suo periculo the Sheriff returne Co. ibid. 101. b. 4. that the Vouchee hath nothing albeit the Demandant shall have Iudgement against the Tenant yet he shall not have Iudgement to recover in value because the Vouchee was not warned Condition Tender 13. Co. ibid. 211. a. 2. If a man be bound to pay twenty pounds at any time during his life at a place certaine and the Obligor tenders the money at the place without giving notice to the Obligee this is no good tender So it is also where a man makes a Feoffment in fee upon Condition that if the Feoffor pay twenty pounds to the Feoffee at a place certaine at any time during his life that then c. in this case also the tender is not good without notice for the time in these cases being uncertaine it cannot be imputed to the default or negligence of the Obligee or Feoffee if he be not present at the payment thereof ready to receive it Vide pl. Co. ibid. 246. a. 4. Litt. S 403. Dyer 143. 57. 3 4. P. M. 14. If a Feme sole be seised of Lands in fee and is disseised Baron and Feme Descent a last Entry and then taketh Husband in this case the Husband and Wife as in the right of the Wife have right to enter and yet the dying seised of the Disseisor in that case shall take away the Entry of the Wife after the death of her Husband because it shall be accounted her folly that when she was sole she did not enter and also for that she would take such an Husband as would not enter before the Descent cast But if Baron and Feme have title of Entry into Lands in right of the Wife and the Tenant dye seised the Entry of the Baron is taken away but if the Baron dye then may the Feme enter upon the Heire that is in by Descent for it shall be accounted Laches in the Baron and not in the Feme nor any way turne to the prejudice of her or her Heires So if the woman were within age at the time of her taking of Husband then also the dying seised shall not after the decease of her Husband take away her Entry because no folly can be accounted in her for that she was within age when she took Husband and after coverture she could not enter without her Husband It is otherwise where a Condition is to be performed which see ubi supra Litt. S. 416. Co. ibid. 251. Co. ibid. 252. a. 3. 15. If there be Tenant for life Remainder for life Continuall claime right of Entry Remainder in fee and the Tenant for life aliens the Land to another in fee and he in the Remainder for life makes continuall claime before the dying seised of the Alienee and after the Alience dyes seised and he in Remainder for life also dyes before any Entry made by him In this case he in the Remainder in fee may enter upon the Heire of the Alienee by reason of the continuall claime made by him in the Remainder for life because such right as he had to enter shal remain to him in the Remainder after him in as much as he in the Remainder in fee could not enter upon the Alienee in fee during the life of the Remainder for life and because he could not make continuall claime for none can make continuall claime but he that hath title of Entry Litt. S. 438. Co. ibid. 259. b. 3. 16. Excuse of 〈◊〉 apparence There are divers wayes of excusing a mans not appearing in Court and all allowed by Law as by Imprisonment whereof Littleton speaketh S. 438. also per inundationem aquarum tempestatem pontem fractum Navigium subtractum per fraudem petentis minorem aetatem defensionem summonitionis per legem mortem Attornati breve de warrantia diei Also si petens essoniatas sit vel si placitum mittatur sine die But sicknesse as one saith is no cause of saving a default because it may be so artificially counterfeited that it cannot be known Litt. S. 442. Co. ibid 262. b. 17. If a man be disseised An Assize amounts to a claime and he arraigne an Assize against the Disseisor and the Recognitors of the Assize chaunt for the Plaintiff and the Iustices of Assize will be advised of their Iudgement untill the next Assize c. and in the interim the Disseisor dyes seised In this case this dying seised shall not toll the Entry of the Disseisee because the bringing of the Assize amounted to a continuall claime and there was no default or neglect in the Disseisee Note that this is a Quere in Litt. but since resolved to be Law Co. ibid. 283. a. 1. 18. In an Action of Waste upon the Plea nul wast fait Waste he cannot give in evidence Iustifiable waste as to repaire the House or the like but he ought to plead it specially Howbeit if the waste be such as came not by any default or neglect in him he may upon the Plea nul wast fait bring in evidence that the wast was done by tempest lightning enemies or the like and he shall be thereupon excused c. Rent-service Descent tolls not Entry 19. If my Tenant which payes me a Rent-service in grosse Litt. S. 589. Co. ibid. 323. b. 3. atturnes and payes it to a stranger this shall not put me out of Possession of the Rent no albeit I bring an Assize against the stranger for the Rent and thereby admit my self out of Possession or although the stranger die and a Descent is cast for still I may distraine my Tenant for all the rent arreare because it cannot be imputed to my neglect or folly that the Rent was paid to a stranger Remitter 20 If Tenant in
of the Clerk as where it abates for false Latine or variance or for default of forme c. there the Demandant shall have the benefit of a new Writ by Journeys accounts because it was the default of the Clerk of the Chancery and not the default of the Demandant himselfe as the Books are agreed in 26 E. 3. Quare Impedit 163. 25 E. 3. 54. 48 E. 3. 5. 14 H. 4. 23. c. So likewise when the Writ abates for want of due Summons for that is the default of the Sheriff and no default in the Demandant and therefore in such case also the Demandant shall have a new Writ by Journeys accounts Co l. 7. 6. b. 3. in Milbornes case Vide Max. 57. Ex. 51. 35. For a Robbery done in the morning ante lucem Hue and cry the Hundred shall not be charged because the Robbery was done in the night And albeit no time be exprest in the Statute of Winchester 13 E. 1. yet by good exposition it shall not extend to Robbery done in the night for no Laches or negligence can be attributed to the Hundred for default of well guarding the Country in the night also in the night they cannot make pursuit after the offendors or inquiry for them and then to charge them when they are deprived of their convenient meanes would be hard Vide 57. 50. Co. ibid. 36. At the Common Law The Towne amercied for homicide done there if one were slaine in a Towne in the day time viz. so long as there was full day light and he that slew him escaped the Towne where the Felony was committed was to be amercied for it and so it is held in 3 E. 3. Corone 238. Dum quis felonice occisus fuit per diem nisi felo captus fuit Tota villata illa oneretur But if such a murder or homicide were done in the night the Towne shall not be amercied by the Common Law because in such case no Laches or negligence can be imputed to the Inhabitants of the Towne For God hath ordained the day for men to worke in and the night for them to rest in And therefore the Prophet saith Posuisti tenebras facta est nox in qua pertranseant bestiae silvae c. sub oritur congregati sunt exit homo ad opus operationem redit vespere And the Poet saith Ut jugulent homines surgunt de nocte latrones Co. l. 5. 27. b. 6. in Sir Hugh Portmans case 37. Bar in Quare Impedit contra If the Plaintiff in a Quare Impedit be non-suited after apparance that is peremptory and a good bar in another Quare Impedit albeit that it be brought within the six moneths because in such case the Defendant upon title made shall have a Writ to the Bishop to admit his Clerke which is a good bar in another Quare Impedit and with this accords 19 E. 4. 9. 22 H. 6. 44 45. 33 H. 6. 1. 55. 20 E. 4. 14. 21 E. 4. 2. b. c. F. N. B. 38. b. So if the Plaintiff in a Quare Impedit discontinue his suit the Defendant upon title made shall have a Writ to the Bishop and therefore this is also peremptory and with this accords 31 H. 6. 15. Likewise if the Plaintiff be made a Knight hanging the Writ the Writ shall abate and the Defendant shall in that case also have a Writ to the Bishop and by consequence that is also peremptory for all these are the Acts of the Plaintiff and he doth them in his own wrong But if the Writ of Quare Impedit within the six moneths abate for false Latine or insufficiency of the forme that is the default of the Clerk and shall not be peremptory to the Plaintiff neither shall the Defendant thereupon have a Writ to the Bishop but the Plaintiff may in such case have a new Writ because in these cases no default can be imputed to the Plaintiff and with this agrees 3 H. 6. 3. 31. H. b. 15. F. N. B. 38. b. h. Vide 34. Ass Pl. 9. So likewise it is if the Writ abate for the mis-naming of the Plaintiff or Defendant if the Plaintiff confesse it the Defendant shall not have a Writ to the Bishop for this may be also the default of the Clerke in writing it and with this accords F. N. B. 38. See also 31 H. 6. 15. Goods stollen in an Inn. 38. If a man come to a common Inn Co. l. 8. 32. a. Caleys case deliver his Horse to the Hostler and say nothing to him whether the Hostler keep him in the Stable or put him into a Pasture abroad without any order from the Owner to put him out to Pasture In this case if the Horse be stollen the Inn-holder shall make him good But if the Owner give order to the Hostler to put him abroad into a Pasture which being done the Horse is stollen or otherwise lost in such case the Inn-holder is excused and shall not answer for him because by the Writ in the Register the Inn-holder is not to answer for more then is within his Inn and all that he is to answer for albeit the guest hath a key delivered to him and locks his goods c. within his Chamber Vide the case at large Amerciament â—here 39. In all Writs of Precipe quod reddat as Writs of right Co. l. 8. 60. b. 4. in Beechers case Formedon Aiel Entry c. Precipe quod permittat as to have Estovers Common c. or Precipe quod faciat as Writs of Customes Services c. if the Demandant be barred or non-suited or his Writ abate for being vicious in matter or forme he shall be amercied but if there be two Demandants and the Writ abates by the death of one of them the other shall not be amercied 48 E. 3. 23. 46 E 3. Account 40. 5 E. 3. 3. 22 H. 6. 7. 38. E. 3. 31. 7 H. 6. 36. 41 Ass 14. The like 40. In all personall Actions as Debt Detinue and the like Co. l. 8. 61. a. 1. in Beechers case without force or desceit to the Court and also in Actions which comprehend force or desceit to a Court of Record if the Plaintiff be barred non-suited or the Writ abate for being vicious in matter or forme he shall be onely amercied not fined but if the Writ abate by the death of one of the Plaintiffs or if one of the Plaintiffs appeare and the other is non-suited which in Law in personall Actions is a non-suit of both he that survives or appeares shall not be amercied for there was no default in him but onely in him that appeared not 47 E. 3. 6 43 Ass 3. 7. H. 6. 36. 38 E. 3. 31. 41 Ass 14. The like 41. In all Actions reall and personall Co. l. 8. 61. 3. in Beechers case if part be found for the Demandant or Plaintiff
and part against him or all or part against one of the Tenants or Defendants and nothing or but part against the other the Demandant or Plaintiff shall be amercied except no default be found in the Demandant or Plaintiff And therefore in Trespasse of Battery against Baron and Feme supposing the Battery to be done by both and the Feme is onely found guilty c. and the Baron acquit yet the Plaintiff shall not be amercied for the Plaintiff cannot have any other Writ in such case and therefore because no default was found in him he shall not be amercied in this case The Kings ward dyes before homage 42. The Kings Tenant in Capite under age is to remaine in Ward Co. l. 8. 172. a. Hales case Prerogativa Reg. cap. 3. and the King is to receive the profits of his land untill he do his homage and that cannot be untill he have sued out his Livery And if at his full age he tender his Livery he is to have three moneths to perfect it Howbeit if after such tender by the Act of God viz. death he is prevented to perfect it the King shall not receive the profits after such tender but the next heire shall have them and after such tender he might in that case sell the Land or any part thereof and the sale shall be good notwithstanding the Kings hands upon it Co. l. 9. 87. a. 4. in Pinchons case 43. It is a Rule in Law Where wager of Law in the Testator Executors not chargeable that where the Testator might have waged his Law his Executors shall not be charged with that duty contra because that advantage is lost by the act of God viz. by death and therefore shall not be imputed to any default of his So debt lyeth not against Executors for the dyet of their Testator because he might in that case have waged his Law and so have freed himselfe thereof which advantage being lost by his death and no fault of his his Executors who represent his person shall not be prejudiced thereby Howbeit if a Prisoner in the Tower for treason receive his diet of the Lievtenant and dye the Lievtenant shall have an Action of debt against his Executors for such diet of the Testator and the reason is because in that case the Testator could not in his life time have waged his Law as it is adjudged in 27 H. 6. 4. b. in Thomas Bodulgats case And the reason why no wager of Law lyeth in such case is because every Goaler ought to keep his Prisoner in salva arcta custodiae and so must of necessity finde him victualls c. Vide pl. ibid. Co. ibid. 87. b. 4. 44. In 14 H. 6. 19. b. R. G. brings a Writ of debt of ten marks against T.T. and others Executors of W. W. and counted The like that the Testator had retained the Plaintiff to be with him for a yeare in the art of limming of Books paying him ten marks per annum and there Martin held that the Action of the Executors was not maintainable And he took a difference betwixt this case of a Limmer and that of a common Labourer for a Labourer shall be compelled to labour and his salary is put in certaine by the Statute and therefore there is no reason that the Servant should lose by the death of his Master being bound by the Law to serve which shall not be said to be his default but the Act of God and the Law Howbeit in the case of a Limmer he was not compelled by the Law to serve And so when he made the Covenant it was his owne act and folly and no act in Law and he might have taken a Specialty And this is good Law but the true reason of that difference is because in the Case of a common Labourer the Testator could not wage his Law but in that of a Limmer he might c. Vide pl. ibid. Co l. 10. 76 b. 2. in the case of the Marshalsey 45. If the Court of Common Bench in Plea of debt award a Writ of Capias against a Duke Earle Erroneous arrests c. which by the Law lyes not against them and this appeares in the Writ it selfe yet if the Sheriff arrest them by force of the Capias albeit the Writ is against Law neverthelesse the Court having Iurisdiction of the cause the Sheriff shall be excused because there is no default in him but in the Court and with this accords 38 H. 8. Dyer 60. b. So it is likewise if a Iustice of Peace makes a warrant to arrest one for Felony who is not indicted albeit the Iustice ers in the Warrant yet he that makes the arrest by force of that Warrant shall not be punished by a Writ of False Imprisonment because is is not his fault but the Iustices who is Iudge of the cause and with this agrees 14 H. 4 16. Co. l. 11. 27. a 3 in Henry Pigots case 46. If the Obligee himselfe alter the Obligation in any point materiall or not materiall by interlining addition racing or the like An Obligation void or not void by rasure c. that shall make the Obligation void but if a stranger do it without the Obligees privity in a point not materiall that shall not avoid the Deed as if an Obligation be to be made to the Sheriff for apparance c. and in the Obligation after the sealing and delivery thereof these words Vicecom Comit. Oxon are interlined by a stranger without the privity of the Sheriff yet the Obligation remaines good notwithstanding such interlining by a stranger without the Obligees privity in regard it was not conceived to be a point materiall Benedicto Winchcombe his name and sirname being there inserted before and being done by a stranger it shall not in that case prejudice the Obligee Refusall of Clerk 47. Where the Bishop refuseth the Clerke of the Patron for non-ability or crime he shall not present by Laps F. N. B. 35. i. unlesse he have first given notice to the Patron of the insufficiency of his Clerk the Patron neglect to present within the six moneths for in such case after the six months past the Patron shall have a Writ to the Bishop if the Church be void and the Bishop have not in the meane time collated 48. If one sell another a peice of Cloath and warrant it to be of a certaine length in this case if the peice be not of that length F. N. B. 98. k. a Writ of Disceit lyeth against the Vendor albeit the Warranty be but by Parol Custome of Woad uncertaine by tempest 49. In Fogassaes case in the Coment Pl. Com. â— b. 1. in Fogassaes case the storme at Sea being a thing that could by no possible meanes be prevented and that causing the uncertainty of the quantity of the Woad and there being no meanes of knowing the certainty thereof
the King by the Charter of the 11 of E. 3. or by Act of Parliament confirming that Charter was because there were divers priviledges granted him which could not possibly be granted by Charter but must of necessity be by Act of Parliament Vide. pl. ibid. Melius inquiâ—â—d 18. A Melius Inquirendum to find what Land I. S. held of King James at the time of his death Co. l. 8. 168. a. 4. in Paris Sloughters case being in the 40 year of Queen Eliz. shall be quasht for the impossibility thereof for it is impossible that I. S. should hold any Land of King James in the 40 yeare of Queen Eliz. he being then King of Scotland 156. Non cogit ad Impossibilia Impotentia excusat Legem Shewing a Deed. 1. If a Deed remaine in one Court it may be pleaded in another Court without shewing it forth Co. Inst pars 1. 231. b. 4. because he cannot have it out of the other Court and Lex non cogit ad impossibilia vide Co. l. 5. 74. b. 4. in Wymarks case Claime 2. Regularly Litt. S. 434. Co. ibid. 258. a. 3. where a man doth lesse then the commandment or authority committed to him there the commandment or authority being not pursued the Act is void and where a man doth that which he is authorized to doe and more there it is good for that which is warranted and void for the rest yet both these rules have divers exceptions and amongst the rest this for one that if a man be sick that he cannot go to the Land nor any part thereof to make his claime and he commands his Servant to do it and the Servant dare not go to the Land for feare of some bodily hurt in this case if the Servant go as neere the Land as he dare and there make claime for his Master that shall suffice albeit his Master bade him go to the Land because Impotentia excusat legem for seeing the Master cannot and the Servant dare not enter into the Land it sufficeth that he come as neere the Land as he dare Descent 3. Descent shall not take away Entry of a man in Prison at the time of the Descent cast because he could not make continuall claime Litt. S. 436. Co. ibid. 259. a. 2. when he was in Prison being there kept as it is presumed in Law in salva arcta custodia without intelligence of things abroad Descent 4. A Descent cast during the vacation of an Abbey Litt. S. 443. Co. ibid. 263. b. 2 shall not take away the Entry of the next Successor because seeing by the death of the Abbot which is the Act of God no person is able to make continuall claime therefore a Descent during that time shall not prejudice the Successor for Impotentia excusat legem Co. l. 5. 22. a. 3. in Laughters case 5. Where the Condition of an obligation is in the disjunctive Condition disjunctive viz. for the Obligor either to do one thing or another and both the things possible at the time of the delivery and afterwards one of them becomes impossible by the Act of God in this case the Obligor is not bound to perform the other for Impotentia excusat legem Co. l. 5. 115. a. 3. in Wades case 6. If a man be bound to pay 40000 l. at such a day Tender of money if he tender it in baggs it is sufficient for it is not possible it should be numbred within the compasse of one day Co. l. 6. 21. b. in Butler and Goodalls case 7. Lawfull Imprisonment without Covin Non-residence the want of a Parsonage House and sicknesse without fraud when the Incumbent by the advice of his Phisitian removes for better aire or the like are good excuses for non-residence against the statute of 21 H. 8. cap. Co. l. 8. 172. Hales case 8. If the Heire holding of the King by Knights Service tender his Livery that includes tender of Homage Tender of Livery and therefore after such tender he may sell any part of his Land and if he dye after tender and before Livery sued out the King shall not have the profits of his Lands longer then to the time of the Tender because by his death which is the Act of God the shewing out of his Livery is become impossible and Impotentia excusat legem Co. l. 3. 73. a. 1. in Doctor Husseyes case 9. A Feme Covert is not within the Statute of Westminst 2. cap. 39. Ravishment of Gard VV. 2. c. 39. concerning Ravishment of Ward for the Law that disables her to have any thing wherewithall to satisfie the value of the Marriage doth also free her from the punishment of Banishment and Imprisonment because it is impossible she should satisfie it when she hath nothing to do it withall for Lex non cogit ad impossibilia c. vide Max. 34. Co. l. 10. 139. b. 3. in Knightlies case 10. If a man be bound to repaire a Wall against the flowing of the Sea if it fall into decay by his default and negligence Wast a wall of the sea he shall be solely charged with the repaire thereof but if it be overthrown or endamaged by the violence of the water without his fault by the Stat. of 23 H. 8. they are to be equally charged who have losse by it for Impotentia excusat Legem vide Pl. ibid. 157. It disfavoureth Falshood Fraud and Covin Vide Dyer 294. 8. Co. Inst p. 1. 17. b. 3. 1. A man hath as absolute ownership and property in an Advowson Advowson how pleaded as he hath in Lands or Rents yet he shall not plead that he is seised thereof In Dominico ut feodo because that Inheritance savouring not De domo cannot either serve for the sustentation of him or his Houshold neither can any thing be received for the same for defraying of charges and therefore he cannot say that he is seised thereof In Dominico suo de feodo Whereby it appeareth how the Common Law doth detest Symmony and all corrupt Bargaines for Presentation to any Benefice but that Idonea persona for the discharge of the cure should be presented freely without Expectation of any thing nay the Common Law is so cautelous in this point that the Plaintiff in a Quare Impedit should recover no Damages for the losse of his Presentation untill the Statute of Westminster 2. cap. 5. And that is the reason that Guardian in Soccage shall not present to an Advowson because he can take nothing for it whereof to make Account for by the Law he can meddle with nothing that he cannot account for So in a Writ of Right of Advowson the Patron shall not alledge the Explees in himselfe but in the Incumbent For which Reasons of an Advowson a man shall plead that he is seised De advocatione ut de feodo jure
uncertainty Bract. fo 5. fo 400. Fleta l. 6. cap. 35. whereof Bracton and Fleta speak notably Sicut Actor una actione debet expediri saltem illa durante sic oportet tenentem una exceptione dum tamen peremptoria quod in dilatorijs non est tenendum quia si liceret pluribus uti exceptionibus peremptorijs simul semel sicut fieri poterit in dilatorijs sic sequetur quod si in probatione unius defecerit ad aliam probandam possit habere recursum quod non est permissibile non magis quam aliquem se defendere duobus bacalis in duello cum unus tantum sufficiat Vide pl. ibid. per totam paginam for departure double Pleas c. Attornement 22. If the Lord first grant the Services of his Tenant to one Co. ibid. 310. b. 1. and afterwards by another Deed of a later date grants the same services to another In this case if the Tenant attorne to the last Grantee it makes his Grant good and albeit he afterwards attorne to the other Grantee yet cannot that make the first Grant good because the Attornement took effect in perfecting the last Grant Howbeit in the same case if the Tenant attorn to them both the Attornment is void to both for the uncertainty so if a Reversion be granted for life and after it is granted to the same Grantee for years and the Tenant attorneth to both the Grants this is also void for the uncertainty A Fortiori if the Lord by one Deed grant his Seigniory to I. Bishop of London and to his heirs and by another Deed to I Bishop of London and to his Successors and the Tenant attorne to both Grants this Attornment is void for both Grants for albeit the Grantee be but one person yet he having severall capacities and the Grants being severall the Attornment is not according to either of the Grants and by consequent void for the uncertainty An uncertaine Deed. 23. If Land be given by Deed to two to have and to hold to them Co. l. 1. 85. a. 1. in Corbets case heredibus it is void for the insensibility and incertainty And although it hath a clause of Warranty to them and their heires this shall not make the first words which are incertaine and insensible to be of force and effect in Law albeit his intent appeare but his intent ought to be declared by words certaine and consonant to Law 24. In an Indenture of bargaine and sale for twenty pounds Dyer 6. 26 H. 8. 3. there are divers Covenants An uncertain Plea and in the end there are these words Ad quas conventiones perimplendas obligo me in 40 l. c. Here in debt brought for the 40 l. payment of the 20 l. is no Plea without an Acquittance albeit proofe may be made of the payment of the 20 l. yet without an Acquittance it remaines uncertaine whether the Covenants were performed and what other agreements there were betwixt the parties by Spilman Fitzherbert and Shelley and 28 H. 8. 25. accords Tamen Quaere for Dyer seemes to be of another opinion Dyer 14. 71. 28 H. 8. 25. If a Feoffment be made to four by Deed Livery without Deed. Livery to one is good for all It is otherwise if it be without Deed for the uncertainty Dyer 17. 95. 28 H. 8. 26. A negative pregnant is disfavoured in Law for the uncertainty A negative pregnant as in a Writ of Entry in consimili casu supposing the alienation to be in fee the Tenant saith that the Tenant for life did not alien in fee which implies that he did alien though not in fee for notwithstanding that Plea the Tenant for life might alien for another life or in tail and therefore no good Plea for the uncertainty Dyer 22. b. 138. 28 H. 8. 27. If a man buy twenty quarters of Graine No Detinue for graine of mony and is to have them delivered at such a place upon such a day and the contract is not performed by the Vendor In this case the Vendee cannot have an Action of Detinue for the Graine for the uncertainty because one quarter of Graine cannot be known from another quarter of the same Graine there is the like Law of Coine Dyer 25. 156. 28 H. 8. 28. An Inquest remained pro defectu hundredorum Defect of Jurors and the Plaintiffs Councell made suggestion to the Court that there were no Freeholders in the Hundred but all Copy-holders and Tenants in ancient Demesne and thereupon prayed Processe de proxim hundred adjacente non potuit habere for the Court are not to beleive the Councels suggestion for the uncertainty thereof but ought to have it ascertained by the returne of the Sheriff who is a sworn Officer Co. l. 1. 84. b. 4. in Corbets case 29. If Land be given to A. in tail the Remainder to B. in tail A perpetuity not good with other Remainders over upon Condition that if any of these shall offer to bar the said estate his estate shall cease as if he were naturally dead and then it shall be to the next in Remainder This is a void Proviso for the uncertainty for Iudges ought to know the intention of the parties by certaine and sensible words which are agreeable and consonant to the rules of Law Co. l. 1. 155. a. 3. in the Rector of Chedingtons case 30. A man possest of certaine Land for sixty yeares in consideration of a marryage to be had betwixt his Son and the Daughter of another Leases void for the uncertainty demiseth the Land to his Son for seventy years to begin after his death and after the Lessor dyes in the case the Lease is good because when the Land is demised Habendum after the death of the Lessor for seventy years there was sufficient certainty and no apparent uncertainty in the Deed as it was agreed in Locrofts case M. 34. 35 Eliz. But if a man possest ef a Lease for forty years grants to B. so many of the yeares as shall be behind tempore mortis suae this is void for the uncertainty as it is agreed in 7 E. 6. Br. Grants 154. and in Pl. Com. 520. b. So if a man have a Lease for life by Deed indented with Proviso that if the Lessee dye within sixty yeares that the Executors of the Lessee shall have it for so many years as shall be behind at the time of his death this is but a Covenant and not a Lease for the uncertainty Vide 3 4 P. M. Gravenors case Dyer 150. a. 22. Ass Pl. 37. Co. I. 2. 3. Mansers case 31. In debt by P. against M. the Defendant pleads the Bond was upon Condition that P. should enjoy the Land An uncertaine Plea which he held by Feoffment from M. discharged and indemnified and that M. and his Son should performe such Acts for further
ut supra Uncertain reâ—â—cation 62. A. seised of the Mannor of D. levies a Fine to uses with power of Revocation upon payment of 40 s. to the Conusee Co. l. 9. 106. b. 2. Lady Greshams case in Marg. Podgers case being likewise seised of the Mannor of S. levies another Fine thereof to the same Conusee but to other uses with like power of Revocation upon payment of 40 s. to the said Conusee Afterwards A. payes 40 s. to the Conusee for revocation of all the uses raised upon both the Fines and this payment was testified in writing under the Seales of the parties In this case none of the uses are revoked but the Revocation is utterly void for the uncertainty because two severall summs of 40 s. should have been tendred and not one summ onely for they were severall Indentures and severall Mannore and could not be satisfied by one summ because it was thereby left uncertain which uses and of which Mannor the Revocation was meant Uâ—certaine plea. 63. In debt against an Executor he ought not to plead Co. l. 9. 109 b. 3. Menel Treshams case Quod ipse non habet c. aliqua bona c. praeter bona c. quae non sufficiunt ad satisfacienda debita predicta but he ought to plead Quod non habet c. bona c. praeterquam bona cattalla ad valentiam of a certaine summe Et non ultra quae eiisdem debitis obligata onerabilia existunt c. for the first plea is insufficient for the uncertainty because the Plaintiff cannot reply thereupon so as a certain Issue may be taken â—ncertainty of â—â—e the perâ—â—n 64. When there is uncertainty in the person Co. l. 10. 51. a. 3. in Lampets case to whom a Release or other Grant is made such Release or grant cannot be good And therefore if a Lease for life be made the Remainder to the right heires of I. S. and the Lessee is disseised and the eldest Son of I.S. releaseth to the disseisor and after I. S. dyes In this case the Release is voyd for the uncertainty whether or no he shal be right heir at the death of his Father So likewise in 17 Eliz a man lets to Baron and Feme for 21 years the Remainder to the survivor of them for 21 yeares and the Baron grants over this term here also the grant is void for the uncertainty of the person for albeit of all Chattels reall which are the Femes the Baron may dispose yet in this case neither the Baron nor Feme had any thing untill the Survivor c. Co. l. 10. 90. a. 3. in Doctor Leyfeilds case 65. The reason why colour is given in a Writ of Entre sur disseisin Colour in pleading Writ of Entre in the nature of an Assize and Assize Trespasse c. is for that the Law which prefers and favours certainty as the mother of quiet and repose to the intent that either the Court may adjudge upon it if the Plaintiff demur or that a certaine Issue may be taken upon a certaine point requires that the Defendant when he pleads such a speciall Plea notwithstanding which the Plaintiff may have right shall give colour to the Plaintiff to the end that his Plea should not amount to a generall Issue and so leave all the matter at large to the Iurors which would be uncertaine and full of multiplicity and perplexity of matter Co. l. 10. 117. b. 2. in Rob. Piâ—folds case 66. In Trespasse the Plaintiff counts for damages twenty marks Uncertaine Verdict the Defendant pleads not guilty the Iurors tar damages and costs joyntly at twenty two markes In this case the Verdict cannot stand for it appeares not how much is for damages and how much for costs and therefore the Plaintiff can have Iudgement but for twenty marks for the uncertainty Co. l. 11. 25. b. 1. in Hen. Harpers case 67. An Ejectione firmae brought de omnibus omnimodis decimis in W. without saying garborum faeni lavae c. Uncertaine allegation this is not rightly layd for the uncertainty because there is no certainty alleadged of the nature or quality of the tithes whereupon a certaine Iudgement may be given or execution by habere facias possessione had And this also appeares in an Assize brought de quadam portione decimarum c. in 7 E. 6. Dyer 84. F. N. B. 41. a. 68. The Bishop shall not cite or distraine any to appeare before him to make oath at the pleasure of the Bishop against the will of him Citations that is so summoned or cited for such generall citations which the Bishops make to cite men to appeare before them prosalute animae without expressing any cause in speciall are against Law for which the party greived may sue a prohibition against the Bishop and thereupon an Attachment if the prohibition be not obeyed And such cause ought to be onely Matrimoniall or Testamentary Plow 56. a. 1. Wimbish and Talbâ—ies case 69. A Bar which is certaine to a common intent is good Replicationâ— must be certaine but Replications Titles Pleas in Abatement of Writs and Estoppels ought to containe Certainty for the Law which is grounded upon reason ordaines that Replications which make the Issue should be certaine to the end that neither the Court nor Iurors who trie the Issue should be misled or enveigled by uncertainty and therefore albeit a man may plead in Bar Que estate without shewing how he comes by the estate yet in a Replication if he plead Que estate generally it is not good as it is held in 2 E. 4. but he ought to shew how he comes by the estate for the cause aforesaid Pl. 65. a. 3. Dive and Manninghams case 70. Where a Recovery is had of two hundred Acres An uncertaine Plea upon occasion of pleading that Recovery to plead a Recovery of one hundred Acres inter alia is not good for the uncertainty as in 22 E. 4. in a Scire facias to have execution of two hundred acres of Land the Tenant pleads that since the Scire facias sued I.S. brought a Formedon of one hundred Acres inter alia and recovered and had execution Iudgement of the Writ for that parcell and this Plea was not held good for it is not the right forme of pleading such a Recovery because a Recovery ought to be certainly pleaded to every intent and these words inter alia are certaine to no intent but there it is held that he ought to have pleaded that I. S. brought a Formedon of two hundred Acres whereof those one hundred Acres now in demand are parcell and hath recovered and hath had execution Certainty in Law proceedings 71. The proceedings of a Suit Pl. 84. a. 4. Partridges case the allegations ought to be certaine in one part or other according to the nature of the Suit viz.
sold Tamen Quaere if there be no difference for the Issue is Quod nullum Denarium inde debet So in Detinue of a chain of three ounces where it weighed but two ounces the Law lay 22 E. 4 Dyer 299. 34. 13. Eliz. 19. Issue was joyned that T. West Issue Miles dominus de la Warre non demisit and in truth he was then Dominus but at the time of the demise he was but Knight yet it seemed to three Justices that the dignity was parcell of the Issue so it could not be found with him that pleaded his Lease Dyer 338. 14. 18. Eliz. 20. In an appeal of the death of a Brother against I. S. of M. c. Appeal as principall and one F. as accessory whereas the name of the principall was T.S. The accessory appears and pleads Nul tiel in rerum natura as I.S. the day of the Writ purchased nor at any time since In this case the two Cheif Justices held That albeit there were another I.S. in another County if it were not in the same County where the Town of M. is or if he were dead before the Writ purchased the Plea sufficeth and there also it was held that in Favorem vitae a man might traverse the Sheriffs Return Hob. 38. 21. In Wast Wast if more Townes be mentioned in the Declaration then in the Writ where the Wast is supposed to be done the Writ shall abate The Earl of Cumberlands case Hob. 118. the Bishop of Yorks case 22. In a Quare Impedit for the Vicaridge of Leeds Amendment the word Vaccariam was inserted instead of Vicariam and exception being taken thereunto it was amended by the Cursitor in open Court Vide 40. 53. 167. Contrariety and Repugnancy And therefore Libera Eleemosina Co. Inst 1. 97. a. 1. If Lands were given to hold In libera Eleemosina reddendo a Rent the Reservation of the Rent seemeth to be void because it is repugnant and contrary to the former grant In libera Eleemosina Co. ibid. 142. a. 3. 2. A man upon his Feoffment or Conveyance cannot reserve to himselfe parcell of the annuall profits themselves Profits cannot be reserved as to reserve the Vesture or Herbage of the Land or the like for that would be repugnant to the Grant Non debet enim esse reservatio de profieiris ipsis quia ea conceduntur sed de redditu novo extra proficia Lit. S. 220. Co. ib. 146. a. 2. 3. When in a generall grant the Law doth give two remedies Proviso repugnant the Grantor may provide that the Grantee shall not use one of them and may leave him to take the other as upon the Grant of an annuity the Grantor may provide that the Grantee shall not charge his person but where the Grantee hath but one Remedy there that Remedy cannot be barred by any Proviso for such a Proviso would be repugnant to the Grant Co. ib. â— 3 4. The like If a man by his Deed granteth a Rent charge out of the Mannor of D. wherein the Grantor hath nothing with a Proviso that it shall not charge his person Here albeit the Repugnancy doth not appear in the Deed yet the Proviso taketh away the whole effect of the Grant and therefore is in Iudgement of Law repugnant for upon the matter it is but a Grant of an Annuity provided that it shall not charge his person The like 5. If a man by his Deed grant a Rent-charge out of Land Co. ib. a. 4. provided that it shall not charge the Land Here albeit the Grantee hath a double Remedy as above is sayd exam 3. yet the Proviso is repugnant because the Land is expressely charged with the Rent but the Writ of unity is but implyed in the Grant and therefore that may be restrained without any repugnancy and sufficient Remedy besides left for the Grantee Condition repugnant 6. If a man give Lands to another Co. ib. 164 a. 2. and to the Heires males of his body upon Condition that if he dye without heire female of his body that then the Donor shall re-enter this Condition is utterly void for he cannot have an heir Female so long as he hath an heir male The like 7. If a man make a Feoffment in Fee upon Condition that he shall not alien this Condition is repugnant and against Law Co. ib. 206. b. 3. 222. b. 4. Litt. S. 360. and the Estate of the Feoffee is absolute But if the Feoffee be bound in a Bond that the Feoffee and his Heirs shall not alien this is good for he may notwithstanding alien if he will forfeit his bond that he himself hath made So it is also if a man make a Feoffment in Fee upon Condition that the Feoffee shall not take the profits of the Land this Condition is repugnant and against Law and the Estate conveyed is absolute But a Bond with a condition that the Feoffee shall not take the profits of the Land is good If a man be bound with Condition to enfeoff his wife the Condition is void and against Law because it is against a Maxime of Law yet such a Bond is good so if he be bound to pay his wife money that is good also Et sic de similibus whereof there be plentifull Authorityes in our Bookes Devise Release c. 8. If a man devise Land upon Condition Co. ibid. 223. a. 1. that the Devisee shall not alien the Condition is void And so it is of a Grant Release Confirmation or any other Conveyance whereby a Fee-simple doth passe for it is absurd and repugnant to reason that he who hath no possibility to have the Land revert to him should restraine the Feoffee Devisee or Grantee in Fee-simple of all his power to alien Chattells 9. If a man be possest of a Lease for yeares or of an House Co. ibidem or of any other Chattell reall or personall and give or sell his whole Interest or Property therein upon Condition that the Donee or Vendee shall not alien the same this is a void Condition because his whole Interest and Property is out of him so as he hath no possibility of a Reverter and it is also against Trade and Traffick and bargaining and contracting betwixt man and man Iniquum est ingenius hominibus non esse liberam rerum suarum alienationem Again Rerum suarum quilibet est moderator arbiter Take also this Rule Regulariter non valet pactum de re mea non alienanda Seigniory in Rent c. 10. If a man be seised of a Seigniory Rent Advowson Common Co. ib. a. 3. or any other Inheritance that lyeth in Grant and by his Deed granteth the same to a man and to his Heires upon Condition that he shall not alien this Condition is also void for the repugnancy Howbeit some have sayd
Law because they are not criminal The reason of discontinuance 7 The reason why alienations in fée in tail or for life Co. ibid. 327 a. 2. by tenant in tail Abbot Bishop husband of his wives land and the like doe make a discontinuance and put the issue in tail him in the reversion or remainder successor or wife that right had to their action and took away their entry was for that he was privy in estate and for the benefit of the purchasor and for the safeguard of his warranty so as every mans right might be preserved viz. to the demandant for his antient right and to the feoffee for the benefit of his warranty which was founded upon great reason and equity because the benefit of the warranty would be prevented and avoided if the entry of him that right had were lawfull and thereby also the danger that many times hapneth by taking of possessions was warily prevented by Law Stat. of Gloc. Warranty Assets 8 By the express purview of the Statute of Glocester Co. ibid. 366. a. 2. cap. 3. where the baron aliens his wives Inheritance with warranty if assets do after descend from the father then the tenant shall have recovery and restitution of the lands of the mother But in a Formedon for lands intailed if at the time of the warranty pleaded no assets be descended so as the demandant recovereth the land if afterwards assets descend there the tenant shall have a Seire facias for the assets and not for the land intailed And the reason hereof is for that if in this case the tenant should be restored to the land intailed then if the issue in tail should alien the assets his issue in a Formedon would again recover from the tenant the land intailed And therefore the Sages of the Law to prevent future occasions of sutes have heretofore resolved the said diversity in the cases abovesaid upon consideration and construction of the Statute of Glocester and of the Statute de donis West 2. cap. 1. Vide supra 15 9. 157 14. 178. 22. Co. Inst part 1. 392. a. 4. 9 The punishment which the Law inflicts upon a felon is very severe for he is not only punished in his own person Punishment of Treason and Felony but likewise in his relations The judgement against his person is that he shall be hanged by the neck until he be dead he is punished also implicative in his relations as 1. In his wife for she shall lose her Dower 2. In his children for they shall become base and ignoble 3 In his Posterity for his bloud is stained and corrupted so that they shall not inherit either to him or any other Ancestor 4. In his real estate for he shall forfeit all the lands that he hath in feesimple feetail or for life 5. In his personal estate for he shall forfeit all his goods and chattels both real and personal Thus heavy was his punishment at the Common Law And the reason thereof was to the end men should fear to commit felony ut poena ad paucos metus ad omnes perveniat And it is truly said Etsi meliores sunt quos ducit amor tamen plures sunt quos corrigit timor And so it is a fortiori in case of High Treason Howbeit after the Statute de donis 13 E. 1. cap. 1. Intailed lands could not be forfeited for felony or treason but only during the life of tenant in tail but since by the Statute of 26 H. 8. cap. 13. Intailed lands shall be also forfeited for Treason Also by the Statute of 1 E. 6. c. 12. the wife was to be endowed albeit her husband were attainted convicted or outlawed for treason or felony but afterwards by the Statue of 5 6 E. 6. cap. 11. The wife shall lose her dower where the husband is attainted of Treason so long as the attainder continues in force There are also divers offences made felony by special Statutes wherein dower corruption of bloud and disherison of the heir are by special provision saved Co. ibid. 171. b. 3. 10 The Law hath provided for the safety of a mans Infants age or a womans estate that before their age of twenty one yeares they cannot bind themselves by any déed or alien any lands goods or chattels Co. l. 2. 44. a. 4. in the Bishop of Winchesters case 11 A meer Layman Prescription for tithes which was not capable of tithes in perancie was yet capable of discharge of tithes at the Common Law in his own land as well as an Ecclesiastical person for by the Common Law the Parson Patron and Ordinary might have discharged a parishioner of tithes in his own land or the parishioner might have given part of his land to the Parson for the discharge of tithes in the residue as appears in 8 E. 4. 14. and in the Reg. fol. 38. Howbeit this was alwayes by grant or composition but he could never be discharged of tithes by prescription for albeit such prescription might have lawful commencement yet the Law in favour of holy Church would never suffer such prescription to be put to the trial of lay-men lest they should rather strain their consciences for their private benefit than render the Church the Duties due unto it Vide supra 2 5. Feofment per fait not devested by parol 12 The Law to prevent sutes and troubles will not permit Co. l. 3. 26 b. 2. in Butler and Bakers case that a franktenement shall be lightly devested by bare words in pais to the end the tenant to the praecipe may be the more certainly known therfore if there be Lord and tenant and the tenant by déed enfeoffs the Lord and a Stranger and make livery to the stranger in the name of both In this case if the Lord by parol disagree to the estate this is not valid to devest it or if he enter into the land and distrain for the services of his Seigniory this shall amount to a disagreement of the feoffment and shall not devest the franktenement out of him but if he enter into the land generally and take the profits this act shall amount to an agreement to the feoffment as it is adjudged per tot Cur. in 10 E. 4. 12. For then it is not left uncertain who are tenants to the praecipe c. Attornment 13 If a reversion of two tenants for life Co. l. 2. 67. a. 4. in Tookers case or the rent or seigniorie of two Iointenants be granted by fine here in a Quid juris clamat Quem redditum reddit or Per quae servitia against such Iointenants the Law will not permit the one to attorn without his Companion because the one making attornment without the other may prejudice his companion as in not claiming to be dispunishable of waste a Condition to have fee a future term or the like for upon a general attornment in Court
Copyholders holding of a Manor parcel of the Rectory the Court granted a Prohibition to prevent further waste Hâ—b 62. Paâ—row Lâ—wâ—llyn 33 The privat delivery of defamatory Letters was criminal and censurable in the Starr-chamber and now as it seems Star-chamber inditable in the Upper Bench because such quarrellous Letters tend to the breach of the peace and to the stirring of Challenges and quarrels and therefore the means of such evils as well as the end are to be prevented 187 It moderateth the strictness of the Law it self Co. I st part 1 13. â— 1. 1 A Protection Moraturae or Profecturae have these clauses in them Protection Praesentibus minimè valituris si contingat ipsum c. a custodia Castri praedicti recedere Or si contingat iter illud non accipere vel infra illum terminum a partibus transmarinis redire according to the provision of the Statute of 13 R. 2. 16. nevertheless if he return into England and came over to provide Munition Habiliments of warr victuals or other necessaries it is no breach of the said conditional clauses nor against the said Act for that in judgement of Law coming for such things as are of necessity for the maintenance of the warre Moratur he doth stay according to the intention of the Protection and Statute aforesaid Annuity 2 If A. be seised of lands Co. ibid. 144. b. 2. and he and B. grant a rent charge to one in fée this prima facie seems to be the grant of A. and the confirmation of B. but yet the grantee may have a writ of annuity against both Howbeit if two men grant an annuity of 20 l. per annum to another although the persons be several yet he shall have but one annuity but if the grant be Obligamus nos et utrumque vestrum the grantee may have a writ of annuity against either of them but he shall have but one satisfaction Iudgement 3 An action of trespass was brought against Tilly and Woody for five boxes with charters taken c. Tilly pleads not guilty H. 7. E. 4. fol. 31. Title Judgement 50 Pl. Co. 66. b. 3. Dyve and Maningham and Woody makes title to him by a gift and the plaintif traverseth the gift and thereupon they were at issue and Tilly was found guilty and the issue was found for Woody against the plaintif In this case albeit the issue was found against Tilly yet the plaintif had not judgement against him for it was found betwixt the plaintif and Woody that the plaintif had not title and then in as much as it appeared to the Iudges by the Record that the plaintif had not title they ex officio ought to give judgement against the plaintif The like 4 An action of trespass was brought by lessee for years of Cattel taken the defendant saith P. 10 E. 4. fol. 7. Title Office del Court 7. Br. 29. Pl. Co. ibid. that the Lessor held of him by divers services c. and for so much arrear he took the Cattel the plaintif saith there is nothing arrear c. and hereupon they were at issue and it was found for the plaintif And yet per totam Curiam the plaintif shall not have judgement for albeit the defendant admitted the writ good yet the Court did abate it because it appeared unto them that the defendant was Lord against whom an action of trespass lyeth not Marbr 3. for the Statute saith Non ideo puniatur dominus c. Appeal 5 In an appeal by a feme of the death of her father Pl. Co. ibid. albeit the defendant affirm the writ yet the Court ex officio ought to abate it for it appears to the Court that no feme may have an appeal of the death of any save of her husband by the Statute of Magna Carta cap. 34. which was in affirmance of the Common Law Non est fâ—ctuÌ„ 6 In debt upon an obligation Pl. Co. 66. b. 4. if the defendant conclude his plea with Iudgement si action whereas his plea should have been non est factum yet if the Iustices find that it was not his deed so as the plaintif had no cause of action they ought ex officio to give judgement against the Plaintif Vide 11. 9. Attaint 7 The Statute of 23 H. 8. 3. Dyer 201. 65. 3 El. â— of Attaints lyeth as well against executors as the party himself albeit the party that recovers upon the false verdict be only named in that Statute for that Statute being made in mitigation of the rigor of the Common Law shall be taken by equity and the words against the party that hath judgement are superfluous for it lyes against any that enjoyeth the thing lost 188 Verba semper accipienda sunt in mitiori sensu Slander 1 If one say to another that he is perjured Co. l. 4. 15. b. 1. in Stâ—nhop Blithes case or that he hath forsworn himself in such a Court by these words an action may be maintained for by these words it appears that he hath forsworn himself in a judicial proceeding but to charge another generally that he hath forsworn himself is not actionable because he may be forsworn in usual communication And benignior sententia in verbis generalibus seu dubiis est praeferenda Vide 178 11. Co. l. 4. 15. b. 3. in Yeamans case 2 Yeamans charged Hext being then a Iustice of Peace in these words For my ground in Allerton Hext seeks my life Slander These words being taken in mitiori sensu were not actionable 1. because he may seek his life lawfully upon just cause and his land may be holden of him 2. seeking of his life is too General and for seeking only no punishment can be inflicted by the Law Co. l 4. 17. b. 4. in Iames Rutleches case 3 In an action upon the case for words Slander as an Innuendo cannot make the person certain which was uncertain before so neither can an Innuendo alter the matter or sense of the words themselves as to say that such an one was full of the Pox innuendo the French Pox this Innuendo doth not perform his proper office for it strives to extend the general words the Pox to the French pox by Imagination of an Intent which is not apparent by any precedent words unto which the Innuendo may referr And the words themselves shall be taken in mitiori sensu Co. l. 4. 20. a. 1. in Barhams case 4 Barham brings an action upon the case against Nethershall Slander the words were these Mr. Barham did burn my barn innuendo a barn with corn with his own hands and none but he And it was adjudged that they were not actionable for it is not felony to burn a barn unles it be parcel of a Mansion-house or full of Corn And in this and the like
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
down a tree where the trees are not exempted this is an implyed determination of the will Lease at will for that it would otherwise be a wrong in the lessor to do it So if a man lease a Manor at will whereunto a Common is appendant and the lessor puts in his beasts to use the Common this is also a determination of the will for otherwise he should be a trespassor Co. ibid. 78. b. 2. 3 By common intendment a will shall not be supposed to be made by collusion for In facto quod se habet ad bonum malum A Will. magis de bono quam de malo lex intendit Co. ibid. 119. a. 3. Littl. §. 179. 4 If there be tenant for life of land the reversion in fee Villein a Villein purchase the reversion and the tenant for life attorns In this case the Lord may justifie to enter upon the Land and claim the reversion and yet shall be no trespassor to the tenant for life for the Law will make construction that he entred to make his claim and not to commit trespass The like Law is also of a reversion after an estate in tail Statute Merchant or Staple Elegit and for years and of the reversion of a Seigniory rent common and any other freehold or inheritance issuing out of any lands or tenements of another Co. ibid. 170. b. 4. If Partition be made by the two Barons in the life-time of their femes coperceners albeit such partition be unequal yet it is not void Pa râ—tion but voidable for it shall be déemed good and lawfull until it be defeated by the entry of either of the femes if she happen to survive her husband There is the like Law of an Infant copercener Co. ibid. 171 a. 4. for it remains good if he defeat it not at his full age Feoffment upon condition 6 If a feoffment be made by deed poll upon condition Littl. §. 376. Co. ibid. 232. and the feoffor haps the deed poll and afterwards the condition is broken wherupon the feoffor re-enters In this case having the deed en poigne albeit it doth not properly appertain to him but to the feoffée yet he may make use of the deed and thereby plead the condition in justification of his entry and title for it will be rather intended that he came to the déed by lawfull Joint trespass than by tortious means Littl. §. 3â—7 So if there be two joynt trespassors and the party trespassed releaseth to one of them In this case also if the other trespassor be sued and have the release en poigne he may plead it in discharge of the trespass causa qua supra Bastard 7 If the husband be within the 4. seas viz. within the Iurisdiction of the King of England if the wife hath issue Co. ibid. 144. a. 2. no proof is to be admitted to prove the Child a Bastard for the question being whether he is legitimate or no the Law will rather deem him legitimate than Proles spurius a bastard And in this case Filiatio non potest probari The like 8 If a man hath issue two daughters the eldest being a Bastard Co. ibid. 244. a. 4. and they enter and enjoy the land peaceably together Here the Law in favour of legitimation will not adjudge the whole possession in the Mulier who indeed hath the only right but in both so as if the Bastard hath issue and dieth her issue shall inherit And in the same case if both daughters enter and make partition this partition shall bind the Mulier for ever The like 9 If the Bastard invite the Mulier to see his house Co. ibid. 245. a. 2. and to see pictures c. or to dine with him or to hawk hunt or sport with him or such like upon the land descended and the Mulier cometh upon the land accordingly this is no interruption because he came in by the consent of the Bastard and therefore the Law will not adjudge the coming upon the land in such case to be any trespass but if the Mulier cometh upon the ground upon his own head and cutteth down a tree or diggeth the soil or take any profit these shall be interruptions For rather than the Bastard shall punish him in an action of trespas the act shall amount in Law to an entry because he hath a right of Entry so it is if the Mulier put any of his Cattel into the ground or command another to do it these do amount to an entry for albeit in these cases the Mulier doth not use any express words of Entry yet these and such like acts do without any words amount in Law to an Entry for acts without words may make an Entry but words without an act viz. Entry into the land c. cannot make an Entry Vide infra 28. M scon inuance 10 If one process be awarded instead of another or a day is given which is not legal this is a miscontinuance of the sute Co. ibid. 325. a. 4. and if the tenant or defendant make default it is good cause of Error but if he appear then is the Miscontinuance salved for albeit in truth his appearance is not legal yet when he appears the Law shall construe it to be lawfull because there is a sute depending against him in Court Dâ—scontinuance of estates 11 If there be tenant for life the remainder in tail Co. ibid. 332 a. 4. and he in the remainder grants it to another in fee by deed and the tenant for life attorns this is no discontinuance of the remainder in tail So it is likewise of a rent charge Advowson in gross Common in gross or the like for the Rule is that a grant by deed of such things as do lie in grant and not in livery of seisin do work no discontinuance and the reason is because the Law makes construction that of such things the grant of tenant in tail worketh no wrong either to the issue in tail or to him in reversion or remainder for in such case the Law adjudged nothing to pass from the tenant in tail but that which he may lawfully grant viz. an estate for his own life Co. ibid. 335. a. 2. 12 If tenant for life make a lease for his own life to the lessor the remainder to the lessor and a stranger in fée Surrender Forfeiture In this case for as much as the limitation should work a wrong by construction of Law it rather inureth to the lessor as a surrender for the one moiety and a forfeiture as to the remainder of the stranger for he cannot give to the lessor that which he had before and as to the remainder to the stranger it is a forfeiture for his moiety and when the lessor entreth he shall take benefit thereof Co. Inst part 1. 381. b. 1. 13 The words of an Act
jointenants of the land and the husband soweth the ground and the land surviveth to the wife 8 Ass pl. 21. 8 E. 3. 54. Dyer 316. It is said that she shall have the Corn and not the executors and the Law seems to be so because they were as one person in Law and held by intietties Co. ibid. 75. b. 4. 6 The tenure by Knight service being at first ordained for the defence of the Commonwealth both against domestique insurrections and forein invasions a Militia being indeed the chief pillar that supports a Commonwealth the due observance thereof was strictly enjoyned by the Laws of Edward the Confessor Knight service where you shall find it thus provided Lamb. 135. Debent enim universi liberi homines c. secundum feodum suum secundum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium dominorum suorum juxta praeceptum Domini Regis explendum et peragendum And William the Conquerer confirmed that Law in these words Statuimus et firmiter praecipimus quod omnes Comites Barones Milites et Servientes universi liberi homines totius regni nostri praedicti habeant teneant se semper in armis et in equis ut decet et oportet et quod sint semper prompti parati ad servitium suum integrum nobis explendum peragendum cum semper opus adfuerit secundum quod nobis debent de feodis et tenementis suis de jure facere c. The like 7 The tenure by Knight service because it was instituted for the Guard and defence of the Commonwealth was so much favoured in Law Co. ibid. 76. b. 4. that betwixt the making of the Statutes of 4 H. 7. 17. and 27 H. 8. 10. of Uses there might lie two wardships for one and the same land as if Cestuy que use before the Statute of 27 H. 8. had died his heir within age the Lord should have had the wardship of his heir by force of the Statute of 4 H. 7. and if the feoffée had died his heir within age the Lord should have had the wardship of his heir also viz. by the course of the Common Law And at the Common Law before the making of those Statutes there might be two wardships in respect of the same land as if tenant by Knight service had made a gift in tail the remainder in fee and tenant in tail had made a feoffment in fee and died his heir within age the Lord should have had the wardship of him and if the feoffee had died his heir within age Co. ibid. 77. a. 1. the Lord should have also had the wardship of his heir and of the land so likewise if tenant by Knight service make a gift in tail and the donee maketh a feoffment in fee and the donee dieth his heir within age the donor shall have the wardship of him because he is his tenant in right but if the feoffee dieth his heir within age the Lord paramount shall have the wardship of his heir because en fait he is tenant to him c. And the Common Law did not remedy this inconvenience because that tenure was deemed serviceable for the Commonwealth Tillage 8 Agriculture or Tillage is much favoured and of great esteem Co. ibid. 85. b. 1. because it is very profitable for the Commonwealth concerning which the goodness of the habit is best known by the privation For by laying of lands used in tilth to pasture six main inconveniences doe daily encrease 1. Idleness Co. l. 4. 39. a. in Tirringhams case which is the beginning and ground of all mischiefs 2. Depopulation and decay of Towns 3. Husbandry which is one of the greatest Commodities of the Realm is decayed 4. Churches are destroyed and the service of God neglected by diminution of Church-livings as by decay of Tithes c. 5. Injury and wrong is done to Patrons and Gods Ministers And 6. The defence of the land against forein Enemies is enfeebled and impaired the bodies of Husbandmen being more strong and able and patient of cold heat and hunger than of any other from which Inconveniences necessarily follow these consequences 1. The displeasure of Almighty God 2. The subversion of the Policy and good government of the Realm And all this appeareth in our books And therefore the Common Law giveth arable land antiently called Hyde or Gaine the precedence before Meadows Pastures Woods Mines or any other ground whatsoever And averia carucae the beasts of the Plough have in some cases more privileges than other cattel c. This imployment was also of high estimation amongst the antient Romans Co. Inst part 1. 161. a. 1. in so much that the grave Senators themselves would put their hand to the plough c. If the Lord will distrain averia carucae where there is a sufficient distress besides the tenant may make rescous O Fortunatos nimium sua si bona norunt Agricolas quibus ipsa procul discordibus armis Fundit humo facilem victum justissima Tellus Virg. in Georg. Co. ibid. 99. a. 2. 9 An Abbot or Prior c. who holdeth lands by Knight service Abbot Prior. albeit he ought not in respect of his profession to serve in war in proper person yet must he find a sufficient man conveniently arrayed for the warr to supply his place And if he can find none then must he pay Escuage c. for his possession doth not privilege him but that the Kings service in his warr must be done which belongeth to his tenure and concerneth both the honor and safety of the Common-wealth Co. ibid. 127. a. 4. Bract. lib. 6. fo 6. 10 The life and members of every subject are under the safeguard and protection of the King Life and Member for as Bracton saith Vita et membra sunt in potestate Regis And herewith agréeth a notable Record Pasch 19 E. 1. coram Rege Rot. 36. Northt Vita membra sunt in manu Regis to the end that they may serve the King and the Commonwealth when occasion shall be offered And therefore if the Lord mayhem his Villein the King shall punish him for mayheming his subject Villein by fine ransom and imprisonment until the fine and ransom be paid because he hath thereby disabled him to do the King and Common-wealth service Co. ibid. 130. a. 4. 11 The Protections Quia Profecturus which concerns services of warr as the Kings souldier Protections c. and Quia Moraturus which concerns wisdom and counsel as the Kings Ambassador or Messenger pro negotiis regni being for the publique good of the Realm privat mens actions and sutes must be then suspended for a convenient time for Jura publica anteferenda privatis and again Jura publica ex privatis promiscue decidi non debent And the cause of granting
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
uses that the honor of the Law be not prejudiced nor any way blemished And therfore in Porters case in the 1. Rep. one of the reasons why good charitable uses ought not to be expounded to be within the Statute of 23 H. 8. cap. 10. was because it would be dishonourable to the Law of the Land to make such good uses void and to restrain well-minded people to give lands to good and charitable uses And if that or any other Statute should be made directly against the Law of God Doct. Stud. lib. 1. cap. 6. as if it should be ordanied that none should give Alms to any in what necessity soever they were or the like the Iudges in point of Honor to the Law ought to adjudge such a Statute void Libel 6 In a setled state of Government if an injury be offered Co. l. 4. 125. b. 1. In the câ—ses of Libels the party grieved ought not to revenge himself by the odious Course of libelling or otherwise but ought to make complaint thereof to the Magistrate in an ordinary Course of Law Kings grant 7 It hath been alwayes the gravity of the antient Sages of the Law to construe the Kings grants beneficially for his Honor Co. l 6 6. a. Sir John Molins case Co. l. 9. 131. a. in Bewleys case and the relief of the Subject and not to make any strict or literal construction in subversion thereof And therefore E. 3. being Lord an Abbot Mesne and the Tenant attainted of Treason the King grants to I. M. to be held of us and other chief Lords of the fee by the services c. In this case the Mesnalty was adjudged to be revived for that the words were sufficient to create a tenure in the Mesne as it was before the Treason because that seemed to be the Kings intention and was also consonant to equity viz. that the Mesne who offended not should not lose his services And therefore in such case the grant shall be taken beneficially for the Honor of the King and for the relief of the Mesne neither yet can the words Tenendum c. have any other reasonable construction Arrest of Peers 8 The person of one who is in Law a Countess by mariage Co. l. 6. 52. b 3. The Countess of Rutl. case or by descent is not to be arrested for debt or treâ—pass for albeit in respect of her sex she cannot sit in Parliament yet is she a Péer of the realm and shall be tried by her Péers as appears by the Statute of 20 H. 6. 9. which was but a declaration of the Common Law And there are two reasons why her person shall not be arrested in such cases the one in respect of her dignity and the other in respect that the Law presumes that she hath sufficient lands and tenements in which she may be distrained There is the same reason for a Lord that is a Péer of Parliament Oath of Allegeance 9 To preserve the Kings Honor and Safety Co. l. 7. 6. b. 3 in Calvins case and good order in the Government of the Commonwealth the Oath of Allegiance was invented and enjoyned as it is said in Lamb. 135 136. by King Arthur to be taken in Folkmotes now called Turns and Leets Hujus legis authoritate expulit Arthurus Rex Saracenos et inimicos a Regno c. Et hujus legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos occidit Homage fealty 10 Homage and Fealty Co. l. 10. 108. b. 2. in Humfry Lofields case were at first ordained for the preservation of order in the Common wealth and being servicces of fidelity do require multiplication And therefore if a man seised of two acres the one at the Common Law and the other in Borough English and make a gift in tail of both and the donée having issue two sons dies both the sons shall make fealty There is the same Law also of Homage whether it be reserved by the party or created by the Law so likewise if the donor die having two sons both the s os shall have homage and fealty King 11 In a writ de Cautione admittenda these words F.N.B. 66. a. De gratia nostra speciali are not words of necessity but of form only for the Honor of the King for he ought of right to make restitution of the goods of the Clerk before seised by the Sheriff Fines in Courts 12 For the better preserving of order in the Commonwealth Co. l. 8 38 b. 3. in Grieslyes case if any contempt or disturbance be committed in any Court of record the Law giveth the Iudge or Iudges thereof power to impose upon the offenders a reasonable fine And this holds not only for the Superiour Courts at Westm but likewise for all inferiour Courts which are of Record And therefore in a Léet being a Court of Record and the Steward Iudge there if any contempt or disturbance to the Court be committed before the Steward there he may impose a reasonable fine upon the offendors as if the Bailiff there refuse to execute his office the Steward may assess upon him a reasonable fine and with this agrées 7 H. 6. 12. b. So if a Tithingman refuse to make presentment in a Leet the Steward may impose a reasonable fine upon him as it was held 10 H. 6. fo 7. Also if one of the Iury in a Léet depart without giving up his verdict he shall be fined by the Steward as appears in the book of Entries fol. 149. Et sic de similibus Dyer 107. b. 27. 13 When a Peer of the Realm is party to a sute Challenge there ought to be one Knight at least impannelled of the Iury otherwise it is a good Challenge for the Peer 200 Publique quiet Co. Inst pars 1. 5. a. 3. 1 No Subject can build a Castle or house of strength imbattelled Fortresses c. or other fortress defensible without the Kings license for the danger which might ensue in disturbance of the peace and quiet of the Realm if every one at his pleasure might do the like Co. ibid. 72. a. 4. 2 Albeit Escuage incertain was due by tenure Escuage yet because the assesment concerned so many and so great a number of the Subjects of the Realm lest it might disturb the publique quiet thereof it could not be assessed by the King or any other but by the Parliament only Co. ibid. 130. b. 3. 3 Britton treating of an Essoin beyond the Grecian Sea amongst other things saith thus None shall go beyond sea Nul grand Seignior ne Chivalier de nostre Realm ne doit prender chemin sans nostre conge car issint poet le realm remainer disgarny de fort gente because if many others should do the like and by that means the Realm be left unfurnished of able and powerfull
that two persons c. shall be one officer and therefore these words Conjunctim et divisim et alterius eorum diutius viventis serve only to this purpose that 〈◊〉 survivor shall be one of the persons unto whom the other shall be 〈◊〉 A fraudulent grant 8 The Master and Fellows of Magdalen College in Oxford having an intent to grant a Messuage in London to Benedict Spinola and his heirs because they were prohibited by the Statute of 13 Eliz. 10. Co. l. 11. 73 b. 1. in Magdalen College case to grant it immediately to him made a grant thereof first to the Quéen and her successors upon condition contained in the same grant that the Queen within 3. moneths should grant the said Messuage to Spinola and his heirs whereby it was endeavoured that the Queen who was the fountain of Iustice should be an Instrument of Injury and tort and of the violation of a pious and excellent Law which she her self for the maintenance of Religion the advancement of Liberal Arts and Sciences the sustenance of poor people and other publique uses had made And whereas the said Master and Fellows were seised of the said Messuage to them and their successors for ever in jure Collegii pro bono publico and to pious and charitable uses thereby it should be converted to the privat use of Spinola and his heirs for ever And so as the Statute of Carlile hath it in 35 E. 1. Quod olim in usus pios ad divini cultus augmentum caetera opera pietatis charitative fuit erogatum nunc in sensum reprobum est conversum which also the Poet well reprehends fuit haec sapientia quondam Publica privatis secernere sacra profanis Co. l. 11. 87. a. 2. in the case of Monopolieâ— 9 The Monopoly of the sole making and importing playing Cards was damned Monopolies because albeit it was pretended by the preamble of the Patent to be for the good of the Commonwealth which was indéed the Quéens intent when she granted it yet it was apparent to be very prejudicial thereunto and meerly intended to be imployed for the privat benefit of the Patentée the Queen being thereby deceived in her grant and the Commonwealth more abused than before Dyer 60. a. 21. 36 H. 8. 10 A Member of Parliament is free from arrests of his person A Member of Parliament because the King and all his Realm having an interest in his person for the dispatch of the publique affairs of the Commonwealth it is reason that the privat commodity of any particular man should not in such case be regarded and the rather for that such arrest is no discharge of an excution but that after the Parliament he may be taken again thereupon 202 Minime mutanda sunt quae certam habuerunt interpretationem Vide Max. 201. per tout Co. Inst pars 1. 364. b. 4. Co. ibâ—d 186. a. 1. 1 Littleton at the beginning of the Chapter of Warranty Communis opinio intending to distinguish warranty into the three several kinds thereof Lineal Collateral and that which begins by disseisin the better to confirm that distribution saith that it is Commonly said there are 3. such kinds of warranty whereby it may be observed that Communis opinio is of Authority and stands with the Rule of Law A Communi observantia non est recedendum Vide Max. 204. 1. Co. ibid. 383. b. Littl. §. 733. 2 The word warrantizabimus doth only create a warranty Warrantizabimus for so hath that word of Art been alwayes interpreted Neither ought there to be any other word though it may signifie the same thing in substance used for warranty And therefore neither Acquietabimus or Defendemus or any other word of the like signification will do it The reason why the Law hath rather fixed upon that word though barbarous than any other seems to be 〈◊〉 â—void uncertainty and critical cavils and disputes about the significaâ—â—on of words And as Ego haeredes mei warrantizabimus c. creates a warranty in Latin so I and my heirs shall warrant in English creates a warranty also Co. l. 6. 43. â— 4. in Sir Anth. Mildmayes case 3 It was the intent of the Statute of 27 H. 8. 10. Uses as appears by the preamble to restore the antient Common Law and to extirpate and extinguish all subtil inventions imaginations and practises of Vses which had introduced many mischiefs and inconveniences mentioned in the same preamble And this was very good and necessary for the Commonwealth for the Common Law hath Rules to direct the estates and inheritances of lands which are certain and infallible And therefore it is without comparison better and much more safe to have estates and inheritances directed by those certain Rules of the Common Law which hath been an antient true and faithfull servant to this Commonwealth than by the uncertain imagination and conjecture of any of these new inventors of Vses without any approved ground of Law or Reason Primet seisin 4 Tenant in Chief having issue a son Co. l 6. 77. a. 3. in Sir Geo. Carsons case covenants to stand seised to the use of his niece the son dies In this case the King shall not have primer seisin And two of the chiefest reasons which induced that resolution was because the experience of the Court of Wards had been alwayes so and for that a great number of the subjects which were in peace would be vexed and molested if the Common received opinion should be changed The old Laws best 5 Interroga Pristinam generationem Co. l. 7. pars 1. 3. b. 3. in Calvins case investiga patrum memoriam Iob 8.8 Hesterni enim sumus vita nostra sicut umbra supra terram We are but of yesterday and therefore had need of the wisdom of those that were before us and had been ignorant if we had not received light and knowledge from our fore-fathers Our dayes also upon earth are but as a shadow in respect of the old and antient dayes past wherein the Laws have been by the wisdom of the most excellent men in many successions of ages by long and continual experience the trial of right and truth fined and refined which no one man being of so short a time albeit he should have in his head the wisdom of all the men in the world in any one age could ever have effected or attained unto And therefore it is optima regula qua nulla est verior et firmior in Jure Neminem oportet esse sapientiorem legibus No man ought to take upon him to be wiser than the Laws which have been received and approved by men of the greatest wisdom in all former ages Acts of Parlament 6 Albeit an Act of Parliament be thus expressed Co l. 8. 20. b. 3. in the Princes case Dominus Rex statuit c. as there are many
said proceeding was erronious because invented of later times And the rather for that by the antient course if the Sheriff make a false return the party may have his remedy by action upon the case which is a good mean to inforce the Sheriff to make true and just returns in such cases but by the said new course if the Sheriff take an inquest and return it although it be false yet the party hath no remedy either against the Sheriff or any other which would be inconvenient by which resolution it may be observed by the way how dangerous a thing it is to alter or change the antient forms and courses of Law for albeit a new way may prima facie seem specious and convenient yet afterwards it will prove incommodious by introducing sundry mischiefs which cannot be discovered otherwise than by future experience as in the case above recited which point it were to be wished our late Regulators would well study and consider before they presume to innovate any thing in the Law Co l. 9. 15. a. Aâ—â—â— Bedingfields case 9 In a writ of Dower an essoin was cast and challenged Essâ—in for that by the Statute of Essoins 12 E. 2. it is provided Quod non jacet Essonium in breve de Dote Howbeit because the Common essoin hath been alwaies allowed in a writ of Dower therefore the Iustices did construe that Statute to extend to an essoin of the Kings service and not to the Common essoin And the rather for that the Statute addeth a Reason of that purview viz. Quia videtur deceptio prorogatio Iuris and that is properly to be intended of an essoin of the Kings service which is a delay and prorogation of right for a year Vide 4 E. 3. 36. 4. Ass pl. 2. Long 5 E. 4. 70. Ward 10 Albeit 16 E. 3. Damages 80. and some other books are Co. l. 9. 74. b. 2. in Dr. Husseys case that Damages shall not be recovered in a writ of Ravishment of Ward yet for that it is held in 17 E. 3. 57. and many other books quas vide ubi supra and agreeth with common experience that Damages should be recovered in that writ it was so resolved accordingly Bastardy 11 It appears by the Statute of Merton Co. l. 5. pars 1. 12. a. 1. Merton 20 H. 3. that all the Bishops instanced the Lords that they would consent that all such as were born before Matrimony marriage following after should be legitimate as well as they that were born within Matrimony as to the succession of Inheritance for that the Church accepted such to be legitimate But all the Earls and Barons with one voice answered Nolumus Leges Angliae mutare quae hucusque usitatae sunt et approbatae A writ to the Coroners 12 If a writ be directed to Coroners Coronatoribus de Comitatu Pl. Co. 76 b. 4. Wimbish Willoughby or in Comitatu have the same construction de and in in this case signifying the same thing yet because in in such case hath been most frequently used upon such a direction to the Coroners de ought to be rejected and in retained for the order of the Register is that all writs directed to the Sheriff shall be Vicecomiti de Comitatu but those directed to the Coroners Coronatoribus in Comitatu as an Attachment against the Sheriff for not returning a Replevin is directed Coronatoribus in Comitatu c. So is likewise the writ of Certifying an Outlawry as appears in the book of Entries and so all other writs as a Diem clausit extremum is Escheatori in Comitatu and the like And he that finds fault with this direction argueth against the Register and also against the common usage of the Law heretofore practised Phrase 13 If I give you a pint of wine you shall not have the pint-pot Pl. Co. 85. b. 4. Partridges case but if I give you an Hogshead of wine you shall have the Hogshead for the phrase of the language commonly used expresseth the intent Et a Communi observantia c. 14 A writ of Inquiry being directed to the Sheriff himself to be executed he makes return Hob. 83. Virely and Gunstone Quod mandavit Balivo Hundredi de B. c. Qui quidem Balivus sic sibi respondit And so sets down the Inquisition taken before the Bailiff and 40 l. damages Howbeit upon a writ of Error it was agreed by all the Iudges that the return was insufficient because it was apparently untrue and against Law for that the warrant was directed to the Sheriff himself to be executed in any part of the County and no Venue contained in that Inquest of office as there is in other writs which intitle the Bailiffs of Liberties Howbeit the Court would not reverse the judgement because there were divers of the like kind both in the Kings Bench and Common Pleas especially in Suffolk and Norfolk in later times Vide Hob. 84. Skeat and Oxonbridge such an allowance in a writ of waste Star-chamber 15 In a sute in the Starr-chamber witnesses were examined to prove what was deposed concerning a will in the Ecclesiastical Court Hob. 114. but because depositions were not allowed in the Starr-chamber taken in other Courts they were rejected as a crafty device to induce depositions against the Rule of the same Court 204 Eventus varios Res nova semper habet And therefore it hateth new Inventions and Innovations Co. Inst pars 1. 379. a. 2. 1 Sir Edward Cooke speaking of Iustice Richel his Perpetuity Inventions observes that new inventions though of a learned Iudge in his own profession are full of Inconvenience Periculosum est res novas et inusitatas inducere And that Author saith farther that Littleton in the debate of that case § 721 722 723. hath taught us an excellent point of learning Co. ibid. b. 1. that when any innovation or new invention starts up the best way is to try it by the Rules of the Common Law for they are the true touchstones to sever the pure gold from the dross and sophistications of novelties and new inventions And by this example he saith you may perceive that the Rules of the Common Law which are indéed the Maximes of Reason being soundly applyed to such novelties it doth utterly crush them and bring them to nothing for commonly a new invention doth offend against many Rules and reasons of the Common Law Co. ibid. 282. b. 3. And therefore the antient Iudges and Sages of the Law have ever suppressed innovations and novelties as soon as they have offered to créep up lest the Quiet of the Common Law might be disturbed and so have Acts of Parliament also many times done the like And the Iudges say in 38 E. 3. We will not change the Law which alwayes hath been used And another saith in 2 H. 4. 18. Co. ibid. 303. b.
4. It is better that it be turned to a default than that the Law should be changed or any innovation made And therefore new and subtil inventions ought not to alter any principle of the Common Law Vide supra 184. 21. 159. 2. Co. ibid. 377. b. 4. 2 The Invention devised by Iustice Richel an Irishman born in the time of R. 2. the like by Thirning Chief Iustice in the time of H. 4. were both full of imperfections The like for nihil simul inventum est perfectum and saepe viatorem nova non vetus orbita fallit And therefore new inventions in assurances are dangerous Co. l. 1. 87 a. 4. in Corbets case 3 If a man make a feoffment in fée of land to the use of A. and his heirs every Monday and to the use of B. and his heirs every Tuesday Perpetuity and to the use of C. and his heirs every Wednesday these limitations are void because it is a new invention there being no such fractions of estates found in the Law And therefore not to be permitted for the inconvenience that may ensue thereupon Co. l. 1. 138. a. 3. in Chudlâ—yes case 4 By the Statute of 27 H. 8. of Uses The like some uses were executed presently others by matter ex post facto and others again were extirpated and extinguished by that Act Vses in esse did draw the possession presently by force of the Act Vses limited in futuro and agreeable to the Rule of the Common Law are also if they become in due time in esse within the provision of that Statute but uses invented and limited in a new manner and not agréeable to the antient Common Laws of the land are utterly extirpated and extinct by that Act for it appears by the express letter of the Act that it was the intent of the Parliament to extinguish and root them out and to restore the antient Common Law of the Land Vide plus ibidem Co. l. 5. 32. a. Pettisers case 5 Vpon a fieri facias of the goods of the testator Devastavit the Sheriff returns nulla bona c. And thereupon another writ issues to him to inquire by Enquest whether or no the executors have wasted c. he returns they have and thereupon execution is awarded of their own goods but this award of execution was reversed by writ of Error because that practice had béen taken up of late dayes wheras the antient course was and since the judgement in this case is taken up again to sue a fieri facias to the Sheriff to levy c. of the testators goods and if it appear to him that the executors have wasted c. then of their own goods And in such case an action upon the case will lie against the Sheriff if he make a false return whereas in the other case no such action lies because the Sheriff makes his return by Inquest Perpetuity 6 All perpetuities being new inventions are against the reason and policy of the Common Law Co. l. 6. 40. b. 3. in Sir Anthony Mildmayes case Co. l. 9. 128. a. 4. in Sondayes case for at the Common Law all Inheritances were fée-simple to the end that neither Lords should be defeated of their escheats wards c. nor purchasors or farmers should lose their estates or leases or be evict by the heirs of their grantors or lessors nor such infinite occasions of troubles contentions or sutes should arise And therefore it may be truly averred that the policy and Rule of the Common Law in this point was in effect subverted by the Statute de donis made in 13 E. 1. which ordained a general perpetuity by Act of Parliament for all such as had then made it or would afterwards put it in ure by force whereof all the possessions of England in effect were intailed accordingly which was the cause of the said and divers other mischiefs Howbeit divers attempts were made for remedy thereof in divers Parliaments and many bills exhibited accordingly but they were alwayes upon one pretence or other rejected Indéed the truth was that the Lords and Commons knowing that their estates tail were not forfeitable for felony or treason as their estates of Inheritance were before the said Act and principally in the Barons warrs in the time of H. 3. and finding also that they were not chargeable with the debts or incumbrances of their ancestors and that the sales alienations or leases of their ancestors did not bind them for the lands which were so entailed to their ancestors did alwayes reject such bills And this continued all the residue of the Reign of E. 1. and the Reigns of E. 2. E. 3. R. 2. H. 4. H. 5. H. 6. and until about the 12 of E. 4. when the Iudges upon consultation had amongst them did resolve that an estate tail might be docked and barred by a Common recovery and that by reason of the intended recompence the Common recovery was not within the restraint of the said perpetuity made by the said Act of 13 E. 1. whereby it appears that many mischiefs did arise upon the change of a Maxim and Rule of the Common Law which they who altered it could not discern when they made the said change for Rerum progressus ostendunt multa quae in initio praecaveri seu praevideri non possunt Vide 8. Marshalsie 7 In Sir Geo. Reynels case in the 9 Report Co. l. 9. 97. a. 2. one of the reasons why the office of Marshalsie could not be granted for years was because it was an antient office and had been alwayes granted for life or at will to the end the person to whom it was granted might be certainly known And therefore to grant it for years when it was never known to be so granted before being an Innovation might prove dangerous and of ill consequence to the Commonwealth An Intail docked 8 The docking of an Intail by a Common recovery in 12 E. 4. was no new invention Co. l. 10. 37. b. 2. in Mary Portingtons case but consonant to the opinion of the Sages of the Law even from the making of the Statute De donis as appears by divers authorities in our books viz. in 42 E. 3. 53. in 44 E. 3. 21 22. Octavian Lumbards case in 48 E. 3. 11. b. Jefferey Benchers case in 12 H. 4. 13. b. in 1 E. 4. 5. in 5 E. 4. 2. b. which resolutions and opinions in Law together with divers others of the like kind did as it séems produce the judgement in 12 E. 4. And therefore such barring of an estate tail was not then to be estéemed an innovation or new invention but the Iudges and Sages of the Law then perceiving what contentions and mischiefs had crept into the quiet of the Law by such fettered Inheritances upon consideration of the said Act and of the former exposition thereof by the Sages of the
Law since the making of the same Act did in the said 12 year of E. 4. give judgment that in such case an estate tail should be barred And in Scholasticaes case in 12 Eliz. Pl. Com. 403. it was not thought fit to stand with the honour and gravity of the Court that the question concerning the restraint of a Common recovery which had béen so often debated and resolved should be once moved Vide supra 6. Co. l. 11. 87. a. 3. in the case of Monopolies 9 The Queen grants to one of the Privy Chamber the only making Monopolies and importation of Cards This was adjudged a Monopoly and therefore void and one of the reasons was because the grant was primae Impressionis for no such was ever seen to pass by Letters Patents under the Great seal to that very day And therefore because it was a dangerous Innovation without president or authority of Law or Reason and the Queen deceived in their grant it was adjudged void Dyer 135. 15. 3 4. P. M. 10 A Dedimus Potestatem was granted to Iustice Saunders to receive an Attorney for the defendant in a Quid juris clamat Quid juris clamat but because there could be found no former president for it it was with much difficulty and after long debate allowed by the Iudges and that upon great necessity and weakness of the party 205 Communis Error facit Jus. Co. Inst 1. 52. b. 2. 1 In a deed of feoffment beginning with Omnibus Christi fidelibus Livery by Attorney c. or Sciant omnes per praesentes c. or the like a Letter of Attorney may be contained for one continent may contain divers deeds to several persons But if it be by indenture between the feoffor on the one part and the feoffee on the other part there a Letter of Attorny in such a deed is not good unless the Attorney be made a party in the deed indented howbeit because it hath been commonly used to insert it in the Indenture without making the Attorny party thereunto it hath been permitted to pass but the other way is safest and more legal Communis Error facit Jus. Co. l. 6. 67. a. 4 in Sir Moâ—â—â—inches case 2 Where it is required by the Statute of 1 H. 5. 5. that in every writ original c. in which Exigent shall be awarded Additions Stat. 1 H. 5. Additions should be given to the defendants of their estate degree mystery c. It so fell out that one who was by birth but a Yeoman was commonly called Gentleman And in that case in such a writ brought against him he may have the Addition of Gentleman albeit in truth he is no Gentleman but only by vulgar reputation for in as much as the intention of the Act is that he should have such a name by which he may be known it is sufficient to satisfie the Act of Parliament for Communis error c. 206 So doth a Custom which is reasonable unreasonable contra Co. Inst â—pars 1. 59 b. 4 1 Of fines due to the Lord by the Copyholder Copyhold fines some be by the Change or alteration of the Lord and some by the Change or alteration of the tenant the change of the Lord ought to be by the act of God otherwise no fine can be due but by the change of the tenant either by the act of God or the act of the party a fine may be due for if the Lord do challenge a Custom within his Manor to have a fine of every of his Copyholders of the said Mannor at the alteration or change of the Lord of the Mannor be it by alienation demise death or otherwise This is a custom both against the Law and Reason as to the alteration or change of the Lord by the Act of the party for by that means the Copyholders may be oppressed by multitude of fines by the Act of the Lord But when the change groweth by the Act of God there the custom is good as by the death of the Lord And this was resolved upon a Case in Chancery by all the Iudges and Serjeants of Serjeants Inn in Fleetstreet Trin. 39 Eliz. and so certified into that Court But upon the change or alteration of the Tenant a fine is due unto the Lord because that custom is reasonable 2 Of fines taken of Copyholders some be certain by custom and some be uncertain The like but that fine although it be uncertain Co. ibid. yet ought it to be rationabilis and that reasonablenesse shall be discussed by the Iustices upon the true circumstances of the Case appearing unto them And if the Court where the cause dependeth adjudgeth the fine exacted unreasonable then is not the Copyholder compellable to pay it And so it was adjudged P. 1 Iac. C. B. rot 1845. for all excessiveness is abhorred in Law 3 In former times it hath been doubted whether or no if a Copyholder had béen ousted by his Lord Copyhold custom he might have any other remedy therein than only to sue to his Lord by petition for it seems Co. ibid. 60. b. 3. Littl. §. 77. that if the Copyholder might have any other remedy he could not be properly said to be Tenant at the Will of the Lord according to the Custom of the manor But Magistra rerum experientia hath made this cléer and without question that the Lord cannot at his pleasure put out the lawful Copyholder without some cause of forfeiture and if he do the Copyholder may have an Action of Trespasse against him For albeit he be tenens ad voluntatem Domini yet it is secundum consuetudinem manerii And Britton saith speaking of these kind of Tenants Et ascuns gents sont qui tout franks de sank et tenent terre de nous en villeynage et sont proprement nos sokemans Britton fo 163. Co. ibid. 140. a. 3. et ceux sout priviledges en ties manere que nul ne les doit ouster de tiels tene ments taut come ils font les services que a lour tenements appendant et nul ne poit lour services accressre ne changer a faire autres services ou plus autrement que ils ne solaient And herewith agreeth Sir Robert Danby Cl. Inst of the C. Pl. M. 7 E. 4. 19. and Sir Thomas Brian his Successor M. 21 E. 4. 80. That the Copyholder doing his customs and services if he be put out by his Lord shall have an Action of trespasse against him Consuetudo 4 Consuetudo contra rationem introducta potius usurpatio quam consuetudo appellari debet Again Co. ibid. 113. a 4. Consuetudo ex certa causa rationabili usitata privat communem Legem And Consuetudo praescripta et legitima vincit legem Villeinage fine to mary 5 All customs and prescriptions that are against reason are void Co. ibid. 139. b. 4. Littl.
§. 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
a wife who is indebted to other persons F. N B. 120. f. the Baron and feme shall be sued for this debt living the feme but if the feme die the Baron shall not be charged therewith after the death of the feme Howbeit if the Creditor of the Baron and feme recover the debt during the Coverture which was due by the feme before the Coverture then albeit the feme die yet the Baron shall be charged to pay that debt after the death of the feme by reason of that Recovery c. And all this because during the coverture they are but one person in Law Remitter 5 If tenant in tail enfeoff a feme in fee and die Littl. §. 665. Co. Iâ—st pars 1. 350. b. 3. and his issue within age takes the feme to wife this is a remitter to the infant within age and the feme hath nothing left in her because they are one person in Law So likewise if the husband discontinue his wives land and take back an estate to him and his wife during the life of the husband this is a remitter to the wife presently albeit the estate is not by the limitation to have continuance after the decease of the husband because the husband and wife are one person as aforesaid Joint purchase 6 If a joint estate of land be made to Baron and feme and a third person in this case the Baron and feme shall have but a moity Littl. §. 291. Co. ibid. 187. a and the third person the other moity so likewise if land be given to Baron and feme and two others the Baron and feme have but a third part because they are but one person in Law Cui in vita 7 If the Baron discontinue the land of the feme Littl. §. 676. Co. ibid. 356. b. 1. and after take an estate to him and his wife and a third person for life or in fee This is only a remitter to the feme for the moity and for the other moity after the death of her husband she shall have a Cui in vita Witness 8 It was resolved in the Common Bench Co. ibid. 6. b. 4. in P. 10 Iac. that a wife cannot be produced as a witness either against or for her husband quia sunt duae animae in carne una and it might be a cause of implacable discord and dissention between the husband and wife and a mean of great inconvenience Pardon for alienation 9 Sir Robert Catlyn Chief Iustice purchased lands holden of the Crown in Capite to him and his wife Dyer 196. 40. 3. Eliz. and the heirs of the said Sir Robert and the Quéen pardons him omnes transgressiones et offensas pro quacunque alienatione sibi facta without speaking of his wife yet this was a sufficient discharge of the fine for the alienation to him and his wife because as it seems they were one person in Law Ho 179. Levendens case 10 An action of debt was brought against the husband and wife for the Recusancy of the wife Debt for Recusancy and the husband would have appeared alone by Supersedeas but the Court resolved that either both must appear or both be outlawed being one person in Law 209 The Wife is of the same Condition with her Husband Co. Inst pars 1. 16. b. 3. Co. l. 4 118 b. 3. in Actons case Co. l. 6. 52. b. 53. b. in the Countess of Rulands case 1 Nobility may be granted for term of life by act in Law Nobility without any actual creation As if a Duke take a wife by the intermarriage she is a Dutchess in Law and so of a Marquess an Earl and the rest and in some other case for that in such case she is of the same condition with her husband Howbeit there is a diversity betwéen a woman that is noble by descent and a woman that is Noble by mariage for if a woman that is noble by descent marry a man that is under the degrée of Nobility yet she remaineth Noble stil but if she gain it by marriagâ— she loseth it if she marry under the degree of Nobility and so is the Rule to be understood Si mulier Nobilis nupserit ignobili desinit esse Nobilis but if a Dutchess by mariage marieth a Baron of the Realm she remaineth a Dutchess and loseth not her name because her husband is Noble sic de caeteris Co. ibid. 30. b. 1. Co. l. 4. 55. a. 3. in the Commonalty of Sadlers case 2 If a man mary the Nief of the King by license and hath issue by her and after lands descend to the Nief and the husband enter Villeinage the Nief dieth he shall be tenant by the Curtesie of this land and the King upon any office found shall not evict it from him because by the marriage the Nief was enfranchised during the Coverture But if a free woman marry a Villein of the King by licence and lands descend to the Villein the Villein dieth the wife shall not be endowed but upon an office found the King shall have the land for the Villein remaineth still a Villein to the King Co. ibid. 123. a. 1. Littl. §. 187. 3 If a Nief marry a freeman Villenage by the Common Law of England the issue is free because in such case during the Coverture she is enfranchised and by consequence free And therefore they being both free the issue ought to have the same privilege So likewise if a Villein marry a freewoman the issues are Villeins for the like reason viz. because during the coverture they are both Villeins Co. ibid. 136. b. 1. 4 In case where a freeman marrieth a Nief some have holden Villein Nief that by this marriage the wife shall be free for ever but the better opinion of our books is that she shall be privileged during the coverture only unless the Lord himself marrieth his Nief and then some hold that she shall be free for ever Vide infra 9. Co. ibid. b. 2. 5 If a Nief be regardant to a Mannor Villein Nief and she taketh a freeman to husband by licence of the Lord and the Lord maketh a feoffment in fee of the Manor the husband dyeth the feoffee shall not have the Nief but the feoffor for that during the mariage she was severed from the Manor And so is the book of 29 Ass which is falsly printed to be understood Co. ibid. 6 If there be two Coperceners of a Villein Villeinâ— and one of them taketh him to husband she and her husband shall not have a Nuper obiit against her Copercener but after the decease of her husband 〈◊〉 may Petty treason 7 By the Statute of 25 E. 3. it is declared Pl. Co. 86. b. 2. in Partridges case that if a servant kill his Master it shall be adjudged
away by Corruption of blood 37 Revived 38. Is not good where is no Interest 55. Taken from the Issue in taile 57 After Entry the party Trespassor Ab initio 108. Given to the King withouâ— demand 275. When may be for non-payment of Rent without demand Et e contra 496. By a stranger devests not an estate 485 Encroachment of Rent avoided in Avowry or by Nuper obijt 477 Emblements 85 466 587. 730 442 583. Equity What it is 202. Upon certaine statutes 204 295 210 211 212 213. Error Not after a Release 105 In Court 124. By him in the Reversion or Remainder 132. In Law not reversable in the same Court 170. By the Vouchee 197. Who may have Error 198. 546. Not upon Disclaimer 198. 647. No Writ before the Judgemennt be compleated 247. 274. 545. 693. In fact and in Law 682. In London 701. Upon a Plaint in Inferiour Courts 709 Escheat 294 Escape 36. 95. 572. 585. 685 772. 645. By marriage of the Keeper 36. Against a Goaler 561 Estrepment 700. In what case it lyeth 682 Estovers 135 194 Estoppell 186. 566. The heire where not estopped 573. No Estoppell to alledge the truth which appeareth on Record 604 Executors where they shall not recover Arreares but lose them 66 67. May release before Probate 125. Chargeable without naming of them 166. Not chargeable where the Testator might wage his Law 590. Of his owne wrong 466 Execution 400. Where against the Kings Debtor e contr 40. Of the Land onely which the party had at the time of the Judgement 42. Where returneable e contr 93. What Execution was at the common Law upon a Recognizance 214. 215. Cannot be of the profits of an Office in Trust 236. Discharged by purchase of parcell of the Land 240. Sheriff may breake open doores to do it 290. Where not against an heire Enfant 350. Valuable or without satisfaction 350. No protection after it 394. Of the body not valuable 587. Prisoners are in Execution till delivered over to the new Sheriff 699. Of Processe 699 Excomengment 688. Where a good Plea to abate a Writ e contr 38. Where it shall disable e contr 170 Exchange Imports Warranty and Covenant 137 Not equall void 242. Intire being a condition in Law 259. Not executed void 393 Exigent 122 Extent 480 Exposition of words 13 18 96 217 705 Construction of them must referr to the next Antecedent 15. In forma predicta 15. Of Sentences and words 21 23 Exception 165 Extinguishment Taile extinct in a fee-simple 223. Of a Rent charge barrs an annuity 434 Ex gravi querela to whom granted 550 F. FAiler Of Action 75. Of the Record 620 Falsifier of Recovery Not by Tenant in taile in Remainder 67 False Latine 19. Shall not quash a Count nor a judiciall Writ 21 Fealty 129 581. Incident though not named 134 Fee-simple Without words Heirs 409 passeth out of the King without Office 421 Fees Barons and Knights Fees 203 Feoffments To uses 148. To the use of his Will the use is in the Feoffor 53 Conditionall 285. Makes not extinguishment of Rent 482. Not to an Alien 618. By Deed not devefted by words 699 Feme covert 562. After coverture a Neife againe 31. disabled to bring Actions 551 Felony 50 420 Felo de se Shall not forfeit to the King a debt upon a simple Contract 694 Fines levied of Lands 93 214 400. Void 74 75 400 Cannot operate double 96 Barr an intaile 154 188 330 For yeares within the Statute of 11 H. 7. 209 Levyed by Covin shall not bar 586. 613. Reversed 715 Fines upon copy-hold Estates 434. Excessive or unreasonable no Forfeiture to deny them 685 Fine In a Leet to be distinct and not joynt 49 334 557. For an unjust vexation 68â— Eor disturbance in a Court of Record 741 Forejudger 371 Folly where attributed to the party and so bind them 666 667 Forfeiture of marryage not paid after Knigthood 34. Of a Dignity entailed 93 Not without some overt act done 108. Of an office for waste 214 For saying Masse 245. By Attornement upon Record 366 Foâ—cible Entry 91 Foundation of a Colledge where void 76 Formedon 41 599 Frankalmoigne 410 720 Frank-marriage Hotchpot 31. 62. Who shall have the Land after a Divorce 52. Out of use 158 Fractions in Conditions estates 256 257 Franchises shall not dye 64 65 Fraude 613 614 615 Fraudulent Grants 747 G. GArnishment 123 Gavelkind 148 Goales 133 Guardian the body of the Ward severed from the Land the Lord shall have the benefit of the two years 30. In Socage cannot present to a Benefice 104. Accountable 142 576. In Socage 235. 351. 371. Of what discharged upon his Account 583. Must account of the marryage of the heir 665 Goods too high apprised to be delivered the Apprisors 215 Grand Serjeancy 150 687 Grants of the King 206. Grants to the King restrained by generall words of Statutes 26. Of an office and after of a Rent for the exercise of it the office determined 41. Made upon false suggestions of the parties are void 302. 616. 457. Construed for his honor and the releife of the Subjects 741 Grants of an estate of Free-hold in futuro void 24. Not to be expounded against the expresse Letter 25. Of a Villaine for years not good without Deed 42. Of a Reversion not good without Attornment 67. Of Monopolie void 68. Of a Rent where void 74. Of the office of Auditor 77. Of a Surveyorship 77. To a Colledge where void 77. Of Glebe Lands void to Children before birth void 78. Made upon good grounds è contr 128. of Services Quid operatur 129 of the next avoydance 160. 164 245. 579. of a Seigniory 169. of Pawnage 245. of copyholds 252. In pais not good without Attornment 366. Joynt where they enure severally 608. 609. By Ecclesiasticall persons 762. Where good without Attornment 455 Made Concurrentibus his how they operate 484 Guifts to Husband and Wife how to be taken 62. Causa Matrimonii prolocuti 275 H. HAbendum and Premisses their difference 100 Heire a mans heir remaines in him during his life 241 Heresie 8 Heriot service and custome 254 Homage by Husband and Wife 767. Auncestrell gone after Alienation 30. 410. May be seperated and twice done 113. Personall 150 Extinct 173. Auncestrell implyes Acquitaile 607. Hotchpot 205 600 Hospitalls 407 Huy and Cry 588 Hundred not chargeable to a Felony done in a mans house 668 I. IDiots examined in Chancery 123 Imprisonment 320 356 743 Indictments Not void by Nicity or Curiosity 26. 27. Good though not pursued in the Circumstances 386. Where the wound must be left out è contr 602. Fraudulent 620. Auterfoits acquite where a good Plea 501 Incidents 131. Incident services not discharged without speciall words 131. Fish and Doves to the Free-hold 226. To a Deed 321. To Corporations 135. Inseperable 135. A Judgement distroyes a Bond 222 Intire things 262 263 264 265 266. 498. Intire Inheritances
As a Villain is disabled against his Lord but not as to any other Co. lib. 8. 45. Whittinghams case 18 If a Bastard be seised of lands in fée and make feoffment thereof Bastard Feoffment Livery and after die without issue In this case if livery were made by the Bastard himselfe in person and so the feoffment executed by himselfe it shall stand good but if livery were made by attorney the lands shall escheat c. Co. lib. 8. 145. Davenports case 19 A. hath a Rectory unto which a Vicarage is appendant Grant of the next avoydance for certain yeares yet in being and grants the next avoydance of the Vicarage to B. and after surrenders the Rectory to him in reversion In this case albeit as to all strangers the estate of the Rectory is determined by the surrender yet as to the Grantée of the next avoidance of the Vicarage it hath continuance and if the avoidance happen within the terme the Grantée shall present c. So also if the Lessée for yeares grant a rent Surrender after grant of a rent and then surrender yet for the benefit of the Grantée the terme hath continuance albeit in rei veritate it is determined â—â—owrie â—uo Warâ—â—nto 20 In Avowrie Co. l. 9. 29 b. 1. In the case of the Abbot of Strata Mercella Co. l. 11. 50. a 2 Richard Liffords case it is not necessary to shew to the Plaintiff by what title such a Franchise is claimed but when a Quo Warranto is brought by the King the Lord of the liberty ought to shew his title â—xception of â—rees 21 If Lands be demised to one for life exceptis quercubus ulmis fraxinis adhunc crescend ultra crescentiam 21 annorum c. The Lessor may sell the great Timber so excepted and then fictione juris as to the Lessée the Trees are divided from the franktenement but as to all others they are parcel of the inheritance of the Lessor â—everance of â—rees 22 If Tenant in Tail sells the Trees to another Co. ibid. that is a Chattel in the vendee and his Executors shall have them and in such case fictione juris they are severed from the land but if Tenant in Tail die before actual severance as to the issue in Tail they are parcel of his Inheritance and shall go with it neither may the Vendee then take them and yet as to the Tenant in Tail himself they were severed for a time â—annor â—anted exâ—â—pt an acre 23 A man makes a Lease of a Mannor 1. 2. P. M. 104. Finch 18. except an Acre this Acre is no part of the Mannor as to the Lessor but as to him that hath right to demand the Mannor by an eygne title it remaineth parcel and therefore he shall make no foreprise thereof in his Writ 52 Relation is of great force in Law â—ncestor and â—eir and the â—estator and â—xecutor Corâ—â—laiiva 1 If a man make a Lease for life to one Co. Instit pars 1. 54. b. 4. and 319. b. 1. the remainder to his Executors for 21 years the term for years shall vest in him for even as Ancestors and heirs are Correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in tail the remainder to the right heires of A. the Fée vesteth in A. as if it had béen limited to him and his heires even so are the Testator and the Executors Correlativa as to any Chattel And therefore if a Lease for life be made to the Testator the Remainder to his Executors for years the Chattel shall vest in the Lessée himself as well as if it had béen limited to him and his Executors â—rank-marâ—age 2 A. Enfeoffes B. upon Condition Co. ibid. 219. b. 3. that B. shall make an estate in Frank-marriage to C. with one such as is the daughter of the Feoffor In this Case B. cannot make an estate in Frank-marriage because the estate must move from the Feoffée and there is not betwixt the Feoffée and the Daughter of the Feoffor the néer relation of Blood which is required betwixt the Donor and the feme Donée in Frank-marriage for here the Daughter is not at all of the blood of the Feoffée â—rotection â—nd Subjectiâ—â— relata from â—e birth 3 In matters of state Subjectio and Protectio are Relatives Co. l. 7. 4. b. 3. Calvins case and immediately upon the birth of a subject that relation begins for ligeance doth not begin by the oath in a Leet but comes into the world with a true subject and he oweth it unto his Sovereign by birth-right so also is the Soveraign bound from that very time to protect his subject And therefore it is truly said that Protectio trahit subjectionem Subjectio protectionem And this is the reason Co. ibid. 9. b. 1 that ligeance cannot be local or confined within the bounds of England onely for wheresoever the subject is there likewise is to be found the foresaid Relation And therefore Qui abjurat regnum amittit regnum sed non regem amittit patriam sed non Patrem patriae for notwithstanding the abjuration he oweth the King his ligeance and he also remaineth within the Kings protection because the King if he please may pardon and restore him to his Country again Co. l. 7. 30. 4. 1. Discontinance of Proces â—â—mmons and â—â—summons â—â—ta 4 For Continuance of Proces upon demise of the King there shall never be Resummons or Reattachment but where there was at first Summons and Attachment for these are Relatives and answer in relation one to the other Co. l. 8. 85. b. 8. Sir Rich. Pexhals case 5 If A. devise to B. 10. l per annum to be paid quarterly Office and the Fee reâ—â—â— and that B. shall keep his Courts c. A. hath an estate for life in this annuity for officium and feodum are Relatives and Concomitantia and he shall have the like estate in the Fée that he hath in the office Co. l. 10. 104. b. 2. Alfrid in Denbawds case 6 At the time of granting the Tales the principal Array must stand Quales and Tales relâ—â— for Tales are words of similitude and have reference to a resemblance which at that time ought to be in esse and therefore if the Array be quashed or all the Polls challenged and tried out no Tales shall be awarded for at that time they were not Quales but in that Case a new Venire facias shall be awarded Howbeit if at the time of granting the Tales the principal pannel did stand and after is quashed as aforesaid yet the Tales shall stand for it sufficeth that they were Quales at the time of granting the Tales and this appears in 34 H. 6. Tit. Enquest 30. Co. l. 10. 116. b. 4. Rob. Pilfolds case 7 This word Damna is taken
in the Law in two significations Damages 〈◊〉 the Wronâ— relata the one properly and generally the other relative and strick properly as when costs of suit are also included in it c. But when the Plaintiff sheweth the wrong done unto him to the damage of such a sum this is to be taken relative for the wrong which is past before the Writ brought and they are then to be assessed occasionis transgressionis praedictae and cannot extend to Costs of suit which are future and of another nature viz. to expences in Law whereof no certainty can then be known Co. Inst pars 1. 338. b. 4. 8 An Estate-tail cannot be discontinued but where he Discontiâ—â—ance Vidâ— M. 23. 5. that made the discontinuance was not once seised by force of the Tail except it be by reason of Warranty c. according to the Rule in Philosophie Omnis privatio praesupponit habitum Co. ibid. 341. b. 3. for he cannot discontinue that estate which he never had Neither yet can a Parson discontinue the Fee-simple of his parsonage Co. ibid. 359. 24. because the intire and Fee-right thereof was never in him 9 If a Feofment be made to two Livery to 〈◊〉 enures to both and livery is made onely to one of them but yet according to the deed In this case the livery shall enure to both because the deed whereunto the livery referreth is made to both Verba relata hoc maximè operantur per referentiam ut in eis inesse videntur Pl. Co. 70. b. 2. in Kedwellies case against Brand. 10 Where Rent is reserved to be paid out of the Land at Dale upon Michaelmas day if it be behind 40 dayes after Place of pâ—â—ment of Râ—â— that then it shal be lawfull for the Lessor to re-enter In this case it ought to be tendred at Dale a convenient time before Sun-set upon the last of the 40 dayes for albeit it be not by expresse words that if the Rent be behind and unpaid at Dale by the space of 40 dayes c. yet it shall have Relation to the place first named and so the Law saith that the Rent shall be paid at Dale the last of the 40 dayes although it be not so expressed by plain words Vide 131. 5. Dyer 14. 69. 28 H. 8. per Shelley and Fitz-herbert 11 The Termor-covenants by Indenture to build an House without words of Executors the Term expires and he dies In this case Executors chargeable without naming theâ— the Executors shall be charged for they are co-relatives with him and represent his person it is otherwise of the heir unlesse he be named It is so likewise of an Obligation because it is a present duty See also Dyer 22. b. 139. 28 H. 8. Per curiam 12 Two have a Term as Executors Executors intirely possest and one of them grants all that he hath in the Land Dyer 23. b. 146. 28 H. 8. In this case the whole Lease passeth because each Executor representing the person of the Testator hath an Intire authority Howbeit the Law is otherwise of other Iointenants 13 A. by Indenture inrolled demiseth the Mannor of D. to B. and his Heires in fee farm rendring Rent with clause of distresse Dyer 157. Pl. 28. 4 5. P. M. Rent not â—tinct by a Fine and upon non-payment a re-entry by the same Indenture Covenants to make such assurance c. according to the true intent purport and meaning expressed in the same Indenture and by another Indenture bearing date the same day A. covenants to levie a Fine of the said Mannor c. before such a feast c. which Fine should be to the onely use intents effects and conditions expressed in the former Indenture and to none other and livery of Seisin was made upon the same Indenture accordingly and after the Fine was also levied viz. come â—eo quae B. habuit ex dono A. with release and warranty according to the course of Fines c. In this case the Rent was not extinct or touched by the Fine because the Fine had relation to the former Indenture Challenge 14 If a Iuror be but a suitor to the Leet of the Plaintiff or Defendant this is a principal Challenge Dyer 176. 27. 2 Eliz. in respect of that relation betwixt them which may procure favour Covenant 15 A Feme hath the third part of the Land of a Termor delivered unto her by the Sheriffe in Dower the Termor gives grants Dyer 240. 43. 7 Eliz. and assignes all the Land comprised in his Lease to A. and covenants that he had not done any act but that the Assignée may enjoy it against every one and he was also bound by Obligation to perform the Covenants In this case the Obligation is not forfeited for the words but that have Relation to the words of the Lessee viz. that he hath not done any Act and are not absolute words as if the Assignee should enjoy it against all men 53 Verba posteriora propter certituâ—inem addita ad priora quae certitudine indigent sunt referenda 1 Sir Adam de Clydrow Knight 6 E. 3. 12. Co. l. 8. 119. a 1. in Dr. Bonhams case brings a praecipe quod reddat against John de Clydrow Reference of words and the Writ was quod justè c. reddat manerium de Wicombe duas crucat terrae cum pertinentiis in Clydrow In this case the Town of Clydrow shal not relate to the Mannor quia non indiget for the Mannor may be demanded without making mention that it lyeth within any Town but cum pertinentiis although it cometh after the Town yet doth it relate to the Mannor quia indiget c. Vide 3 E. 4. 10. The like 2 If a man grant Rent in manerio de praecipiend in C. Acres of Land parcel of the same Mannor with clanse of distresse in the C. Acres Co. l. 8. 154. b. 2. Sir Edw. Althams case In this case the Rent shall onely issue out of the C. Acres and the general words shall be construed according to the special words according to the Rule in Margery Mortimers case 7 E. 3. fol. 10. a. Quando carta continet generalem clausulam posteaque descendit ad verba specialia quae clausulae generali sunt consentanea interpretanda est carta secundum verba specialia Rent 3 If a man grant Rent and go no farther Co. ibid. these words shall create an estate for life but if the habendum he for yeares that shall qualifie the general words â—ail 4 If a man give Lands to one and his Heires Co. ibid. habendum to him and the Heires of his body he shall have but an Estate-fall and no Fée expectant for the habenâ—um qualifies the general words Precedent 5 A Feme hath title of Dower in Lands in Wethersfield Gosfield Co. l. 8. 154.
Law to give him cause of action and it is alwayes intended that every one will shew the best of his case c. But when the barre of the Defendant is insufficient in substance and the Plaintiff replies and shews the truth of his case whereby he produceth no matter against himself but matter explanatory or peradventure not material there the Court shall judge upon the whole record and the Count being good for insufficiency of the Barre without any regard to the replication judgement shall be given for the Plaintiff As if a man plead a grant by Letters Patents in Barre which are not sufficient the Plaintiff by replication sheweth another clause in the said Letters Patents which clause is not material the Defendant demurers in Law In this case judgement shall be given against the Defendant sic in simililibus Co. l. 8. 163. a. 3. in Black-amors case 7 Among the misprisions remedilesse by the Statutes made for the amendment of records this is one Misprisions 〈◊〉 Clerks that albeit the verdict upon issue tryed be given for the Plaintiff yet if upon the whole record it appears to the Court that the Plaintiff hath no cause of Action he shall never have judgement and so it hath béen often adjudged Co. l. 9. 53. a. 2. in Hickmots case 8 In debt upon an Obligation A release pleaded wiâ—â— exception the Defendant pleads a release of the Plaintiff c. which was in this manner A. doth acknowledge himselfe satisfied and discharged of all bonds debts c. made by B. the Defendant and it is agreed that A. shall deliver all such bonds as he hath yet undelivered unto B. except one bond of 40 l. not yet due wherein B. and C. stand bound to A. c. The Plaintiff replies that the obligation excepted and the obligation in Curia prolata are one and the same whereupon the Defendant demurres And in this case it was resolved that the exception extended to all the premisses because all the words before make but one intire sentence and the one depends upon the other For it is reason that when Bonds are satisfied that they should be delivered and exceptio semper ultimò ponenda est It was also reason that this bond of 40 l. should be excepted because it was not due when the release was made c. Co. l. 10. 99. b. 3. in Beawfages case 9 M. 10. Jac. upon a motion at the Barre it was resolved Bond taken by the Sheâ—â—â—â— not within 〈◊〉 the Statute 〈◊〉 23 H. 6. that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court c. was not void by the Statute of 23 H. 6. cap. 10. For the first branch of that Statute is that he shall let to baile by Writ or Bill c. which he could not do before as appears 19 H. 6. 43. The second shews the form of the body c. The third contains a penalty that if the Sheriff take an obligation in any other form c. than is there prescribed that it shall be voyd so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said Statute doth extend onely to obligations of such as are within their guard and custody and not otherwise Co. l. 10. 138. b 1 in Chester Mills case 10 Always such construction ought to be made of an Act af Parliament that one part thereof may agrée with the rest Exposition an Act. and that all may stand well together c. Co. l. 11. 44. a. 4 in Richard Godfreys case 11 The Iustices shall assesse the Fines of Copiholders upon the due consideration of all circumstances Copihold Fines Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discretione And so it was adjudged in Communi Banco Inter Stallon Plaintiff and Brady Defendant P. 9. Jac. 1845. Rot. Co. l. 5. 79. b. in Fitz-herberts case 12 Tenant for life Warranty that comâ—ceth by dâ—sin the remainder to his sonne and heire apparent in taile by covin and agréement betwixt him and A. and B. to the intent to barre his son of his remainder by a collateral warranty makes a lease for years to A. who makes feoffment in fée to B. to whom the father releaseth with warranty and all this is by covin and consent betwixt the parties to the intent aforesaid After this the father dies and the warranty descends upon the sonne being then of full age Resolved per totam curiam that this warranty shall not barre the sonne because the feoffment of the Lessée for years is disseisin and the father himselfe is particeps Criminis and agréeing thereunto then albeit the release with warranty is made after the disseisin yet in as much as the disseisin was to such an intent and purpose the Law will adjudge upon the whole Act as it is agréed in 19 H. 8. 12. If a man disseise another with intent to make feoffment with warranty albeit he make the feoffment twenty years after the disseisin yet the Law will adjudge upon the whole act and the disseisin and warranty shall be coupled together according to the intent of the parties and therefore in such case the law will adjuge the warranty to begin by disseisin albeit they are made at several timâ—s So if a man make a lease of lands in two several Counties reserving an intire rent abeit the livâ—ry be made at several times first in one County and then in another yet the rent is issuing out of the lands in both Counties So likewise if a man make a charter of feoffment of certain lands with warranty and deliver the déed and after make livery of the land secundum formam cartae Here also the Law will adjudge upon the whole act and albeit the déed be delivered at one time and the livery of the land at another time and although a warranty ought to enure upon an estate yet upon the whole matter the warranty is good Eldest childe 13 The use of a recovery was limited by a Latin déed to the use of H. viz. he against whom the recovery was had for life Dyer 337. 36. 16 Eliz. the remainder Seniori puero de corpore H. in taile c. Afterwards H. covenants by an English Indenture to levy a fine to the use aforesaid wherein the use was limited to the use of the eldest child of the bodie of H. c. H. hath issue two children whereof the elder was a daughter and the younger a sonne And in this case it was adjudged that the daughter should have the land for albeit the word puero be indifferent to each sex and then the Male for dignity should be preferred yet because the English indenture hath declared the construction to be the eldest child the daughter shall have
of debt afterwards because both actions charge the person The like Law is of an Assise and of a writ of entry in nature of an Assise and the like â—â—der of 〈◊〉 2 If a feofment be made of a wood upon Condition to pay a certaine Rent the Demand ought to be made at the Wood-gate Co. ib. 202. a. 1 or at some high way tending through the Wood or other most notorious place there And if one place be as notorious as another the feoffor hath election to demand it at which he will and albeit the feoffée be in some other part of the wood ready to pay the Rent yet that shall not avail him sic de similibus Co. ib. 210. a. 1 Litt. §. 339. 3 If upon a Mortgage the money be limited to be payd to the feoffée Payment of Mortgage money and before the day of payment he make his Executors and die in this Case the Mortgageor shall pay it to the Executors albeit they be not named or if it be limited to be paid to the Mortgagee or his heirs then if he die it ought to be paid to his heire because named but if to his heires or executors the Mortgageor hath election to pay it to either So likewise if the Condition be to pay it to the feoffée his heirs or assignes and the feoffée make feofment over it is in the election of the feoffor to pay the money to the first or second feoffée at his pleasure and so if the first feoffée die the feoffor may pay the money either to the heire of the first feoffée or to the second feoffée at his election for the Law will not enforce the feoffor to take knowledge of the second feofment nor of the validity thereof whether the same be effectual or not but at his pleasure Litt. §. 341. Co. ib. 211. b. 2 4 If feofment in fée be made reserving Rent An Assâ—se oâ— entry and for default of payment a re-entry this is a Rent-secke and in this Case if the feoffor be once seised of the Rent which after is denied him it is at his election whether he will have an Assise of Novel disseisin for the rent arrere or enter for the Condition broken but after a recovery in Assise he cannot have recourse to his re-entry because by bringing the Assise he affirmes the continuance of the Estate Litt. §. 454. Co. ib. 268. b. 1. 312. a. 1. 5 Before the Statute of 21 H. 8. 19. Avowry at laâ— or by Seat the disseisée might compel the Lord to avow upon him but since that Statute if the Lord distraine upon any of the Lands and Tenements holden c. he may avow c. upon the same Lands c. as in Lands c. within his fée or Seigniory c. without naming of any person certaine and without making avowry upon a person certaine and therefore at this day the Lord hath his Election either to avow according to the Common Law or by force of the said Statute as by the word may in the same Statute is imported Littl. § 478. Co. ib. 278. b. 3 6 If a man be disseised by an Infant who aliens in fée Several reâ—dies by acâ— or entry and the alienée dies seised and his heire enters the disseisor being still within age In this Case it is in the Election of the Dissefsor to have a writ of dum fuit infra aetatem or a writ of right against the alienée or otherwise he may make his entry into the land without any suit or recovery And so it is to be observed that many times the Law doth give a man several remedies and of several kinds as in this Case by action and by entry by action either by writ of right or dum fuit infra aetatem Littl. §. 496 497 478. Co. Inst p. 1. 286. b. 1. 7 When a man hath several remedies for one of the same thing A remedy 〈◊〉 remaine aâ— a release be it real personal or mixt albeit he releaseth one of his remedies yet he may use the other So where a man may enter into lands and also have an Action real given him by the Law to recover them In this Case if the Demandant release to the Tenant all manner of actions real yet the Demandants entry is not thereby taken away because nothing is released but the Action And so it is also of thnigs personal as if a man wrongfully takes my goods albeit I release to him all actions personals yet I may by Law take my goods out of his possession In like manner if I have any cause to have a writ of detinue of my goods against another here albeit I release unto him all Actions personals yet I may by Law take my goods out of his custody because no right of the goods is released but onely the Action â—lent diâ— or a◠〈◊〉 8 If one bold of me by Rent-service which is a service in grosse Litt. § 588 589. and not by reason of my Mannor and another that hath no right claimes the Rent and receives it of my Tenant by cohersion of distresse or otherwise and disseiseth me by taking the Rent albeit such a disseisor die so seised in taking the Rent yet after his death it is at my election either to distraine for the Rent or taking him to be a disseisor to have an Assise against the pernor of the profits â—ine or aâ— 9 If an Abbot Bishop or Husband in the right of his Wife Co. ib. 3 27. b. 2 seised of a Rent or any other Inheritance that lies in grant had aliened it was in the Election of the Successor or Wife after the death of her Husband to claime the Rent c. or to bring an Action for such alienation did not worke a discontinuance and so it is also by construction of the Statute of West 2. cap. 1. in Case of Tenant in Taile â—tes waivâ— by Feme â—ert 10 If Lands be given to the Husband and Wife and their heirs Co. ib. 357. a. â— the Husband makes a feofment in fée the feoffée giveth the land to the Husband and Wife and the heirs of their two bodies the Husband dieth In this Case the wife may elect which of the Estate she will for both Estates are waivable and her time of Election and power of waiver accrewed unto her first after the decease of her Husband â—echer of 〈◊〉 heires 11 Inderaigning a warranty against heires in Gavelkind Co. ib. 376. a. 4 the eldest may be vouched as heire to the warranty and the other sonnes also in respect of the Inheritance descended unto them So likewise the heire at the Common Law and the heire of the part of the mother may be both vouched yet in both these Cases the heire at the Common Law may be vouched alone at the election of the Tenant â—nveyance â—y several 〈◊〉 12