granted in the time of Quéen Eliz. Quaere whether or no the Extent was returned without warrant Errour 78 In debt the Iudgment was reversed Dyer 130. 58. 6 Eliz. because there was no warrant of Attorny entred and this albeit the Writ of Error was brought the same terme the record remaining still in the breasts of the Iustices and the Plaintiff had prayed entry thereof Note that both the first Action and the Writ of Errour were brought in Banco Regis Lease void 79 The Provost of Wels being Parson imparsonee of the Parsonage of Winsam leaseth the tithes for fifty years rendring rent Dyer 239. 40. 7 Eliz. which was also confirmed by the Deane and Chapter but not by the Patron and Ordinary the Provostship was by Parliament united to the Deanary cum primo vacare contigerit The Provost dies the Deane accepts the rent yet the lease is not affirmed by such acceptance for the Provosts lease was void by his death as it is of a Parson or Prebend It was otherwise of a Bishop Deane Abbot c. which were elective and before the Statute of 1 Eliz. not printed might make discontinuance but if the lease above had béen for life it had not been void before entry Also the acceptance above was to no purpose for the reversion was determined and the name of succession altered As if Tenant in Dower or other particular Tenant make a lease and die and he in reversion or remainder accept the rent this is no affirmation because the reversion is altered 80 Hob. 10 Doctor Leyfield against Tisdale 41 Things incident are adhaerent to their Superiours or Principals Deeds c. in whose custody to remain 1 A man seised of Lands in fee hath divers Charters Deeds Co. inst pars 1. 6. a. 2. The Lord Buckhursts case Co. l. 1. 1 2. and Evidences and maketh a feoffment in fee either without warranty or with warranty onely against him and his heirs In this case the Purchaser shall have all the Charters Deeds and Evidences as incident to the lands ratione terrae to the end he may the better defend the land himself having no warranty to recover in value for the evidences are as it were the sinews of the land and the Feoffor being not bound to warranty hath no use of them But if the Feoffor be bound to warranty so that he is bound to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such Charters as may serve him to deraign the warranty paramount Likewise he shall have all Deeds and Evidences which are material for the maintenance of the title of the land but other evidences which concern the possession and not the title of the land as Court Rolls c. the Feoffee shall have them as concomitantia incidentia to the possession Land on the part of the mother 2 If a man seised ol Lands as heire of the part of his Mother Co. Inst pars 1. 12. b. 4. maketh a feoffment in fee reserving a rent to him and to his heirs this rent shall go to the heirs of the part of the Father vide N.B. 40. 70. but if he had made a gift in falle or a lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto shall passe with it but the heire of the part of the Mother shall not take advantage of a condition annexed to the same because it is not incident to the reversion nor can passe therewith The like for service 3 If a man had been seised of a Mannor Co. ibid. as heire on the part of his Mother and before the Statute of Quia emptores terrarum had made a feoffment in fee of parcell to hold of him by rent and service albeit they be newly created yet for that they are parcell of the Mannor they shall with the rest of the Mannor descend to the heirs of the part of the Mother quia multa transeunt cum universitate quae per se non transeunt Co. ibid. 4 If a man hath a Rent-seck of the part of his Mother The like for distresse and the Tenant of the land granteth a Distresse to him and his heires and the Grantee dieth the Distresse shall go with the rent to the heir of the part of the Mother as incident or appurtenant to the rent for now is the Rent-seck become a Rent-charge Co. ibid. 19. b. 3. 5 By the Statute of Westm 2. The land incident to the tenant in tail the land is as it were appropriated or incident to the Tenant in tail to the heirs of his body and therefore if an estate be made either before or since the Statute of 27 H. 8. cap. 10. to a man and the heirs of his body either to the use of another and his heirs or to the use of himselfe and his heirs this limitation of use is utterly void for before the said Statute of 27 H. 8. he could not have executed the estate to the use P. 14 Jac. in B. R. And so it was adjudged in an Ejectione firmae between Cooper Plaintiff and Franklin c. Defendant Co. ibid. 22. b. 3. 6 The possibility of having heirs to inherit is so inherent and incident to a man as long as he lives A remainder to a mans right heirs is a limitation to himselfe that it cannot by any act of his be severed from him during his life except when his blood is corrupt by attainder T. 23 Eliz. Fenwick and Mitfords case c. And therefore at this day since the Statute of 27 H. 8. cap. 10. If a man seised of lands in fee make a feoffment in fee and depart with his whole estate and limit the use to his daughter for life and after her decease to the use of his sonne in taile and after to the right heirs of the Feoffor In this case although he departed with the whole Fee-simple by the feoffment and limited no use to himselfe yet hath he a reversion for whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasers And here in this case when the limitation is to his right heirs and right heire he cannot have during his life for non est haeres viventis the Law doth create an use in him during his life untill the future use cometh in esse and consequently the right heirs cannot be purchasers And there is no diversity when the Law creates the estate for life and when the party And if the limitation had béen to the use of himselfe for life and after to the use of another in taile and after to the use
〈◊〉 joyn in an â—sise of an 〈◊〉 thing and a pound of Pepper and an Hawk and an Horse and they are seised of that service and afterwards all the said services being arreate they distrain for it and the Tenant makes rescous In this case as to the rent and the pound of Pepper they shall have two several assises because those rents are severable and the two Tenants in Common claim and hold the reversion unto which the same rents are incident by two several titles But as to the Hawk and Horse albeit they be Tenants in Common c. they shall joyn in the assise because these things are intire and cannot be severed for one of them alone by himselfe cannot make his plaint in Assise for the moity of an Hawke or of an Horse because the Law will never suffer a man to demand any thing against the order of nature or reason as it appeareth by Littleton Sect. 129. Lex enim spectat naturae ordinem Co. ibid. b. 3. 23 Tenants in Common shall joyn in a Quare Impedit In an adâ—â—son ward c. because the presentation to the Advowson is intire Also they shall joyn in a writ of right of Ward and ravishment of Ward for the bodie for the same reason Co. ib. 197. b. 4. § 285. a. 4. 24 If two Tenants in Common be of the Wardship of the body Release â—o prejudice and a stranger ravisheth the Ward and one of the Tenants in common releaseth to the ravisher this shall go in benefit of the other Tenant in common and he shall recover the whole Neither yet shall that release be any bar to him for that the Wardship of the bodie is intire and cannot be severed Co. l 5. 97. b. the Countesse of Northumberlands case So it is also if there be two Ioyntenants of an Advowson and they bring a Quare Impedit and the one doth release yet the other shall sue forth and recover the whole presentment Likewise two Tenants in Common shall joyn in a detinue of Charters and albeit the one be non-suit yet the other shall recover Co. Inst pars 1. 199. b. 4. 25 There is a diversity betwéen Chattels real Tenants iâ— common Ward Villein that are apportionable and severable as leases for years wardship of lands interest of tenements by Elegit Statute Marchant Staple c. of lands and tenements and Chattels real intire as Wardship of the body a Villein for years c. For if one Tenant in Common take away the ward or the Villein c. the other hath no remedie by action but he may take them again Howbeit for the other he that is outed may have remedy against his companion that outs him viz. by Ejectione Firmae Ejectment of Ward Quare ejecit infrà terminum c. Co. ib. 200. a. 3. 26 If two Tenants in Common be of a Mannor Waife Estray to which Waife and Stray doth belong a stray doth happen they are Tenants in common of the same and if one doth take the stray the other hath no remedie by action but onely to take it again unlesse by prescription they claim to have them by turns c. Co. ib. 215. a 3. 27 The Grantée of part of the reversion shall not take advantage of a Condition by the Statute of 32 H. 8. cap. 34. A conditioâ— intire As if a lease be made of thrée acres reserving a rent upon Condition and the reversion is granted of two acres the rent shall be apportioned by the act of the parties but the condition is destroyed for that it is intire and against common right It is otherwise in the Kings case c. â—elease of 〈◊〉 actions 27 In mixt actions as an action of Waste Litt. § 492. c. which are mixed both in the realty and personalty a release of all actions real or a release of all actions personal is a good plea in barre because the action is in its nature intire and therefore a release of part shall annul all c. There is the same reason of an Assise of Novel disseisin a writ of Annuity Quare Impedit c. â—â—heritance â—ehold intire â—erm not so 28 If a Disseisor make a lease for a hundred yeares Co. ibid. 285. a. 4. Co. ib. 297. a. 2. Co. l. 5. 6. in Foords Case the Disseissee may confirm parcel of those yeares viz. Either the whole land for part of the terme or part of the land for the whole term c. So likewise if the Tenant for life make a lease for a hundred years the Lessor may confirm either for part of the terme or for part of the land but an estate of Inheritance or Frée-hold cannot be confirmed for part of the estate â—nfirmation 〈◊〉 part of a â—â—me because those estates are intire and not severable as yeares be And therefore if the Disseisée confirm the estate of the Disseisor Litt. § 519. albeit in the déed of confirmation the limitation be exprest to be in taile for years for a day or onely for an hour yet hath the Disseisor a Fée-simple because his estate was before the confirmation intire and unseverable â—â—eritance â—ehold intire 29 If any Disseisor make a lease for life the remainder in fée Litt. § 525. Co. ibid. 297. a. 4. b. 2. if I confirme the estate of the Tenant for life yet after his decease I may well enter because they are several estates and nothing is confirmed but the estate for life So it is also when the several estates are in one and the same person as if the Disseisor make a gift in taile the remainder to the right heirs of the Tenant in taile or the remainder first for life â—â—nfirmation â—one jointeâ—â—nt shall eâ—â—e to both and then to the right heirs of the Tenant in taile In these cases if the Disseisée confirm the estate of the Tenant in taile it shall not extend to the other estates causa qua suprà But if the Disseisor make a lease for life to A. and B. and then the Disseisée confirms the estate to A. Here B. shall take advantage thereof because the estate of A. which was confirmed was intire and joint with B. and therefore in that case the Disseisée shall not enter into the land and devest the moity of B. So likewise if the Disseisor enfeoff A. and B. and the heirs of B. and then the Disseisée confirms the estate for his life this shall not onely extend to his companion but to his whole Fée-simple also because to many purposes he had the whole Fée-simple in him and the confirmation shall be taken most strongly against him that made it c. 〈◊〉 confirmatiâ—o Baron â—e not good 30 If I let land to a Feme sole for terme of her life Litt. §. 525. Co. ibid. 299. a. 4. who takes husband and after I confirme the estate
of the Baron and Feme to hold for their lives In this case the Baron did not hold jointly with his Feme but held in her right for the terme of her life because the wife had the whole estate in her before for life and Iointenants ought to come in by one intire title c â—â—nment â—c 31 If the reversion of thrée acres be granted Co. ibid. 309 b. 4. Co. Litt. 5. 81. a. 4. in Foords case and the Lessée agrée to the said grant for one acre this is good for all thrée So it is also of an Attornment in Law if the reversion of thrée acres be granted and the Lessée surrender one of the acres to the Grantée this attornment shall be good for the whole reversion of the thrée according to the Grant c. For the Grant being intire the attornment must be intire also â—nment â—ory intire 32 If here be Lord and Tenant Co. ibid. 314. a. 4. Litt. §. 563. and the Tenant hold of the Lord by twenty manner of services and the Lord grants his Seigniory to another if the Tenant pay de facto any parcel of any of the services to the Grantee this is a good attornment for all the services although the Intent of the Tenant was to attorne but for that parcell onely because albeit there be divers manners of services which the Tenant ought to performe yet is the Signiory intire and the Tenant having attorned for part it cannot be void for that part and good it cannot be unlesse it be for the whole c. Neither can the Tenant attorne for a time or upon Condition c. Co. l. 5. 81. a. 4. in Foores Case Litt. §. 566. Co. ibid. 315. a. 3. 33 If there be many Iointenants which hold by certaine services The like and the Lord grant to another the services and one of the Iointenants attorne to the grantée this is as good as if all had attorned because the Signiory is intire for there cannot be an attornement in part c. So also a seisin of a Rent by the Lands of one Iointenant is good for all and a seisin of part of a Rent is a good seisin of the whole c. Co. ibid. 335. a. 1. 34 If the donée in taile enfeoffe the denor alone Discontin … by enfeoffâ—â—â—â— tâ—e Denot 〈◊〉 a stranger that makes no discontinuance because the reversion in that case is not discontinued c. But if he enfeoffe the donor and a stranger this is a discontinuance of the whole Land because the stranger is then seised per my per tout as well as the donor c. Co. Inst p. 1. 373. b. 2. 35 If Husband and Wife Tenants in speciall taile Warrantie descending iâ—tirely 〈◊〉 the issue have issue a Daughter and the Wife die the Husband by a second Wife hath issue another Daughter and discontinueth in Fée and dieth a Collaterall Ancestor of the Daughters releaseth to the discontinuée with Warrantie and dieth the Warrantie descendeth upon both Daughters yet the issue in taile shall be barred of the whole because in judgement of Law the Warrantie descended upon each of them intirely Co. ibid. 390. a. 2. 36 If a Man maketh a Feoffment in Fée with Warrantie to the Feoffée his heires ad assignes Warrantie intire and the Feoffée re-enfeoffeth the Feoffor and his Wife or the Feoffor and any other stranger the whole Warrantie remaineth still because the Warrantie is intire and not parted So it is also if two doe make a Feoffement with Warrantie to one and his heires and Assignes and the Feoffée re-enfeoffe one of the Feoffers In this Case also the Intire Warranty doth remaine c. Co. ibid. 367. b. 4. Litt. §. 60. 37 If a Man of full age The like an Infant make a Feoffement in Fee with Warrantie this Warrantie is not void in part and good in part but it is good for the whole against the Man of full age and void against the Infant For albeit the Feoffement of an Infant passing by livery of seisin is voidable yet the Warrantie which taketh effect onely by deed is meerely void c. Co. lib. 1. 86. b. 3. in Corbets Case 38 If a Man let Lands for yeares the remainder in Fée A Lease 〈◊〉 remainder … intire Estatâ— and livery is made to the Lessée for yeares onely this shall convey the Fée-simple to him in remainder For albeit livery be not necessary to the Tenant for yeares yet it shall enure for the benefit of him in the remainder because the particular term and all the remainders which depend thereupon though never so many do in judgement of Law make but one intire Estate which takes effect at one and the same time c. Co. l. 3. 86. b. 3. Corbets Case 39 Since the Statutes of Vses 27 H. 8. A Condiâ—â—â—â— without f … ctions If a Man make a gift in taile with proviso or upon Condition that if the donée doth such an Act that his Estate shall cease during his life or if a Feofment in Fée be made with proviso or upon such a Condition that his Estate shall cease during his life these provisoes or Conditions are utterly void against Law for such an estate taile or in Fée in Land being intire and without fractions such a Condition or limitation annexed to such Estates ought to destroy the whole Estate unto which they are annexed and not part thereof and he that enters for the condition broken ought to have the same estate which he had when he made the estate conditional which was intire and without fractions c. â—o fractions 〈◊〉 Estates 40 If a man make feoffment in fée of land to the use of A. and his heires every Monday Co. ibid. 87. a. 4. Per Walmasly and to the use of B. and his heires every Tuesday and to the use of C. and his heires every Wednesday these limitations are void For wée finde no such fractions of estates in the Law â—void Livery 41 A man makes a lease for yeares of an house Co. l. 2. 31. b. Bottisworths Case and of a Close lying by it selfe and of certain other lands in Dale the Lessor makes feoffment of all and makes livery in the Close the Lessée being at that present in the house In this case the livery was adjudged void for all because the demise being intire the possession of the house is the possession of all intirely demised with it c. So it had béen also if the Close had béen demised by the Lessée at will but not for years â—o fractions 〈◊〉 bargaine â—le 42 If a man be seised of a Mannor part in demesne Co. l. 2. 35. b. 3. in S. Rowl Haywards case part in lease upon Rent reserved and part in Copihold and by Indenture in consideration of money c. demiseth granteth bargaineth
England to make payment or tender thereof for the law presumes that it was so intended when the feoffor or obligor doth not limit any place in certain for the payment thereof â—â—e thing in 〈◊〉 of anoâ—â—â—r â—atisfaction 15 If feofment be made upon condition to pay money Litt. §. 344. Co. ib. 212. b. 4 and the feoffor pay to the feoffée an horse a cup of silver a gold-ring or the like in full satisfaction of the money and the other receive if this good enough and as strong as if he had received the sum of money albeit such horse ringe or other thing was not of the 20th part of the value of the money so also not onely a thing in possession but also a thing in action may be taken in satisfaction of the money for if the obligée or feoffée accept a Statute or a bond in satisfaction of the money it is a good satisfaction 〈◊〉 good saâ—isfaction 16 Where the Condition is for 20 l. Co. Ibidem the obligor or feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole because it is apparent that a lesser sum of money cannot be a satisfaction of a greater but if the feoffée or obligée do at the day receive part and thereof make an acquittance under his seal in full satisfaction of the whole it is sufficient because the déed amounteth to an acquittance of the whole So if the obligor or lessor pay a lesser sum either before the day or at another place then is limited by the Condition and the obligée or feoffée receiveth it this is a good sstisfaction A Feme acâ—â—â—â—s â—n estate 〈◊〉 life 17 Where feofment is made upon Condition to give the land to the feoffor and his wife and the heirs of their two bodies Litt. §. 352 Co. ib. 219. b. 4 the remainder to the right heires of the feoffor in fée In this Case Littleton saith if the feoffor die before such Estate made the feoffée ought to grant the land to the Feme for life without impeachment of waste the remainder to the heires of the feoffor in fée and yet here if the Feme accept of any Estate for life without this clause without impeachment of wast it is good Officers 18 Officers that have no other profit but a bare collateral fée Co. ib. 233. a. 4 may be discharged of their Offices and service but yet they shall have their fée and where the fée issues out of the profits of the land the grantor cannot discharge them of their service or attendance but in all Cases where the Officer relinquisheth his Office and refuseth to attend he loseth his Office fée profit and all Acceptance of â—ent services 19 If there be Lord and Tenant and the Tenant is disseised Co. ib. 268. a. 4 and the cattel of the disseisée are taken in this Case by reason of the privity betwixt the Lord and the disseisée the disseisée may compel the Lord to avow-upon him yet here if the Lord have before accepted the services of the disseisor the disseisée cannot enforce the Lord to avow upon him So likewise where a man have title to have a writ of escheate if afterwards he accept homage or fealty of the Tenant â—â—â—heate he is barred of his writ of escheate It is otherwise of acceptance of Rent for that may be received by a Bailiffe unlesse he avow for it in a Court of Record So likwise if the Lord accept the Rent by the hands of the heire of the disseisor or of his feoffée because they are in by title this shall barre him of his escheate Howbeit concerning Avowries the ancient law is now altered by the Statute of 21 H. 8. 19. which see c. â—â—â—ages lost 20 If there be Lord and Tenant Co. ib. 269. b. 3. Co. l. 3. 65. b. 4. Penuants Case and the Rent is behind by divers yeares and the Tenant make a feofment in fée if the Lord accept the service of Rent of the feoffée due in his time he shall lose the arrerages due in the time of the feoffor for after such acceptance he shall not avow upon the feoffor nor upon the feoffée for the arrerages incurred in the time of the feoffor Disseisin of a â—ent 21 A man cannot be disseised of a rent-service in grosse a rent-charge Littl. §. 589. Co. ib. 323. b. 3 or a rent-secke by attornment or payment of such a rent to a stranger but at the Election of him to whom such Rent is due for Nemo redditum alterius invito domino praecipere aut possidere potest yet if the disseisée bring an Assise against such a pernor or taker of such Rent he doth thereby admit himselfe out of possession thereof Neverthelesse a discent of a Rent in grosse bindeth not the right owner but that he may distraine albeit he admitted himselfe out of possession and determined his Election as by bringing an Assise or the like Co. Inst p. 1. 323. b. 4. 22 In Case of such Rents Release to a stranger of such a rent if the Tenant give a Stranger any thing in name of Attornment and then the right owner release to the Stranger such release is void because an attornment onely can be no disseisin of such a Rent but if the Tenant of the Land pay the Rent to a Stranger and then the right owner releaseth to him this release is good because he thereby admitted himselfe to be out of possession Co. ib. 332. b. 1 22 If Tenant in taile of a Rent-service c. or of a reversion Tenant in 〈◊〉 barred by a Formedon or remainder in taile c. grant the same in fée with warranty and leaveth assets in Fée-simple and dieth this is neither barre nor discontinuance to the issue in taile but he may distraine for the Rent or service or enter into the land after the decease of the Tenant for life but if the issue bring a Formedon in descender and thereby admit himselfe out of possession he shall be then barred by the warranty and assets Co l. 3. 85. a In the Cases of Fines Co. ib. 344. a. 1 Hill 1. Jac. Coram Rege Rot. 601. inter Faire-childe Plaintiffe and Gayer Defendant in trespass 24 A Church Parochial may be donative exempt from all ordinary jurisdiction and the Incumbent may resigne to the Patron A Church â— donative made presentable and not to the Ordinary neither can the ordinary visit but the Patron by Commissioners to be appointed by him and by Littletons Rules § 648. the Patron and Incumbent may charge the glebe and although it be donative by a Lay-man yet merè Laicus is not capable of it but an able Clerk infra sacros ordines for albeit he come in by lay donation and not by admission or institution yet his function is spiritual and if such a Clerke
cause of his demurrer that if there were any other matter in the declaration whereof the Defendant might have advantage he could not take any benefit or advantage thereof Pl. Co. 84 b. 3. in Partridge and Strange Crokers Case 72 In a count or declaration if the Plaintiffe recite a Statute Count abaâ—â— by mis-recâ—â— which he néeds not do being a general Statute whereof the Iustices are bound to take conusance in such Case if he mis-recite it as in the date or otherwise his count shall abate for though it was not requisite to recite it yet he making use thereof by way of recital he ought to recite it as in truth it is because then he hath grounded his action upon the Statute by him recited where it appeares to the Court Iudicially that there was no such Statute at that time and so he hath abated his count by his own shewing c. Co. Inst p. 1. 207. a. 2. 73 If feofment be made upon Condition Tender and refusal that the feoffor shall pay a certaine sum of money at such a day c. if tender of the money be made accordingly and the feoffée refuse to receive it by this the feoffor and his heires may enter c. And then the feoffée is without remedy to recover the money at the Common Law because it was his folly that he would not receive it when he might So if an obligation of 100 l. be made with Condition for the payment of 50 l. at a day c. and at the day the obligor tender the money and the obligée refuse it In this Case albeit in an Action of Debt upon the obligation the 50 l. may be received because it is still a duty and parcel of the obligation and the obligée hath remedy by Law for the same according to the Rule Liberata pecunia non liberat ofterendum yet if the Defendant plead the tender and refusal wherein he must also say uncore prist and tender the money in Court if the Plaintiffe will not then receive it but take issue upon the tender and the same be found against him he hath lost the money for ever because he hath made two refusals when he might have had it â—cceptance of â—ent 74 C. purchaseth a Copi-hold of A. to him his wife and their childe for their lives Dier 30. 207. 28 H. 8. A. le ts the franck-tenement of the soile by Déed indented to B. for his life reserving Rent and livery and seisin is made accordingly Afterwards A. levies a fine sur conusance de droit come ceo c. to C. of the same land and C. accepts the Rent of B. In this Case it séemes that by the acceptance of the Rent of B. the Copihold of C. is gone So if a Disseisor make a lease for life reserving Rent and after grant the reversion to the Disseisée and he accept the Rent of the Lessée he shall never after oust him Quod fuit concessum per quosdam â—â—â—viledge 75 One of the Clerkes of the Chancery was sued in the C. B. and proces continued till the exigent Dier 3 3. 18. 28 29 H. 8. and the Defendant who was the Clerke sues a supersedeas to the Sheriffe quia improvidè and after he sues a writ of priviledge out of the Chancery directed to the Iustices of the B. reciting the priviledge of Chancery and requires the Iustices to surcease In this Case the priviledge was dis-allowed and the Clerke put to answer because the Court was lawfully seised of the plea by the Act of the Defendant himselfe for in as much as he sued out the supersedeas quia improvidè he thereby affirmed the jurisdiction of the Court for that every supersedeas quia improvidè recites the Defendants appearance in Court by an Attorney and names him and therefore it was his own default But if he had sued such a writ notwithstanding the exigent the priviledge had béen allowed him and then after the writ of priviledge come to the Iustices they ought to have sent a special supersedeas to the Sheriffe of the Out-lawry reciting the priviledge And this resolution agréed with Presidents shewed in Court Doâ—er imperâ—â—… plea. 76 In Dower the issue was Ne unque seisie que Dower luy puit Dier 41. 1. 30 H. 8. and a Déed of feofment made unto the Baron was by the Demandant given in evidence to the inquest and produced in Court whereunto it was answered that before the feofment the Baron was seised of land to him and his former wife in special taile and that after he made discontinuance and re-took the Estate in fée by the feofment afore-said and of such Estate died seised whereby the heire who is Tenant in taile is remitted and therefore the second Feme could not be endowed in this Case albeit the matter alleadged might have a voided the Dower if it had béen specially pleaded yet here the issue being onely ne unque seisie c. the Iustices were of opinion that the Iury ought to find for the Demandant c. se … is 77 If A. plant Conies in his owne ground which increase to such a number that they destroy the land of B. next adjoyning Co. l. 5. 104. b. Boulstones Ca. in this case B. cannot have an action upon the case for the damage he sustains by them for the property of them remaines no longer in A. then they remaine within his Warren and when they come upon the land of B. he may lawfully kill them because then they are his if he can catch them and it is his own fault if he do not take them 〈◊〉 to be of â—ounsel in a … s owne â—â—â—se 78 This Maxime teacheth us Co. Inst p. 1. 377. b. 4. that it is not safe for any man be he never so learned to be of Counsel with himselfe in his own Case but to take advice of other learned men and the rather because the phisautia and self-opinion which is in man by nature so obscures his understanding that he can hardly give a right judgement of things that concerne himselfe Non prosunt dominis quae prosunt omnibus artes and in suo quisque negotio habitior est quam in aliena And therefore in the new inventions of Iustice Richel an Irish-man in R. 2. time and of Thirming in H. 4. time Litt. §. 720. time there were found many imperfections and Richel was overthrowne in an Action upon the Case by his owne shewing in 2 H. 4. fol. 11. vide Co. l. 1. 88. a. 2. in Corbets Case Dier 69. b. 36 5 E. 6. 79 A man enfeoffs two upon Condition A Conditioâ— severable that the feoffées before a certaine day shall make an Estate again to the Feoffor for term of his life the remainder over in fée to a stranger one of the feoffées makes an Estate accordingly in this Case albeit the Condition was
consideration of any valuable thing to present A. B. to the said Church albeit it had béen without the consent or knowledge of A. B. yet it should not have vested the Advowson in the Lord causa qua suprà Dereignment purgeth profession 4 If the wife after the husband hath entred into Religion alien Co. ibid. 132. b. 1. the land which is her own right and after her husband is dereigned the husband may enter and avoid the alienation Mariage of Priests 5 In times past if a secular Priest had taken a wife Co. ibid. 136. a. 3. and had issue and died that issue had béen lawfull and should have inherited as heire to his father c. For as it was then holden the mariage was not void but voidable by Divorce and after the death of either party no Divorce could have béen had But in those dayes if a man had maried a Nunne or a Monke had maried those mariages were holden void the Nunne and the Monke being as Littleton saith Sect 202. dead persons in Law and therefore their issue could not have inherited 21 H. 7. 39. 19 H. 7. Bastardie 33. 5. E. 2. Nonability 26. 47 E. 3. casu ultimo Rescuous lawful 6 If the Lord destrain the Tenant for rent before it be due Co. ibid. 160. b. 3. v. ibid. Pl. author the Tenant may justifie to make rescous and it shall not be adjudged disseisin of the rent So it is also of a rent charge Livery of an estate in futuâ—o void 7 If a Lease for yeares be made to begin at Michaelmass Co. ibid. 217. a. 4. the remainder over to another in fée if the Lessor make Livery of seisin before Michaelmass the Livery is void because Livery of seisin must passe a present Frée-hold and not in futuro for if it should worke at all it must take effect presently and cannot expect Release to lessee for years void 8 If a man let to another his land for terme of yeares Co. ibid. 270. Littl. § 459. if the Lessor release unto the Lessée all his right c. before the Lessée enter into the same land by force of that Lease such a release is void because the Lessée had not possession in the land but onely interesse termini at the time of the release made It is otherwise if the Tenant had béen in possession or in case of a Lessée for life Patron shall â—ot charge the Glebe 9 Regularly the Incumbent may charge the Glebe Co. ibid. 300. b. 3. Littl. § 528. if the Patron and Ordinary joyn with him in the grant or consent thereunto either by Precedent Licence or subsequent confirmation yet in this case if the Patron be but Tenant in tail or for life or the Ordinary be Patron the charge shall not be perpetual for in the first case the issue in taile reversioner or remainder shall avoid it and in the other case the Licence or Confirmation of the Ordinary is not available to charge the land without the consent of the Dean and Chapter but shall be avoided by the Successor of the Ordinary Co. Inst pars 1 300 b. 3. 10 A. Parson of D. is Patron of the Church of S. as belonging to his Church A grant of a rent not good and presents B. who by the consent of A. and of the Ordinary grants a rent charge out of the Glebe this is not good to make the rent charge perpetual without the assent of the Patron of A. Co. ibid. 301. a. 1. 11 If the Disseisor make a Charter of Feofment to A. with a letter of Attorney Confirmation void and before Livery the Disseisée confirmes the estate of A. or the Déed made to A. this is cléerly void though Livery be made afterwards Co. ibid. 323. b. 4. 12 If the Tenant of the Land A void release of a rent out of which a rent charge is issuing pay the rent to a Stranger that hath no right thereunto and the right owner release to him this release is good because he thereby admitteth himselfe to be out of possession But if the Tenant had given him any thing in name of attornment and the right owner had released to him this release had béen void because an Attornement onely can be no disseisin of the rent and therefore in that case the release had not good footing nor whereon to worke Littl. §. 633 634. Co. ibid. 336. b. 4. 13 If Feme Inheretrix have a Baron under age Nonage who during his nonage aliens the Feme of Land and dies In this case the Feme may enter So likewise if two Ioyntenants under age make feofment in fée and one of them dies the Survivour may enter c. Littl. § 660. Co. ibid. 348. 14 If Tenant in tail make feofment in fée to the issue in tail Estate in tail not chargable within age by force whereof he is seised if the Tenant in tail die the issue is remitted and therefore in this case if the issue in taile being at full age doth in the life of the Tenant in taile grant a rent charge issuing out of the land to a stranger and after the Tenant in taile dies the issue in taile shall hold the land discharged Co. ibid. 349. a. 3. 15 If the heire apparent of the Disseisée disseise the Disseisor A rent charge not good and grant a rent charge and then the Disseisée dieth the Grantor shall hold it discharged for there a new right of entry descendeth unto him and therefore he is remitted and shall avoid the charge So likewise if the Father disseiseth the Grandfather and granteth a rent charge and dieth now is the entry of the Grandfather taken away and here if the Grandfather dieth the Sonne is remitted and shall avoid the charge Finch 12. 16 If an Infant or Feme covert make their will and publish it A Will void and after die of full age or sole yet is the will nothing worth 10 Eliz. Dyer 344. Finch 〈◊〉 17 One disseised of two acres in D. releaseth all his right in all his lands in D. and delivereth it to a stranger to be delivered over to the Disseisor as his Déed such a day A void release before which day the Disseisor disseiseth him of another acre in D. and then the release is delivered over unto him yet nothing of the right of this third acre passeth by the release Co. l. 2. 55. Bucklers case 18 A. Tenant for life makes a Lease for 4 yeares to B. to begin presently A Lease for life void and after makes a Lease for life to C. to begin at Midsummer following and after Midsummer B. attorns here the Lease for life to C. is void because an estate of Frank-tenement cannot commence in futuro and then the attornment though it were after Midsummer shall not make the reversion to passe the grant
the saidlease so granted by the Patron imports in it self both a grant and also a confirmation of the terme so that a déed of the same thing by the same person to the same person and at the same time shall enure to two several purposes viz. to a grant of the interest as Lessée and to the confirmation of the same interest as Patron So also if Tenant for life grant a Rent-charge to him in the reversion in fée and the Reversioner by his déed grant it over to another and his heires this is a good grant and confirmation also to make the rent good for ever in respect of the several relations that are in him in the reversion viz. as Grantor of the rent and as Reversioner in fée In like manner if the Disseisor make a lease for life the remainder to the Disseisée and the Disseisée grant the remainder over this is a good grant and confirmation also c. 〈◊〉 contract â—stardy 8 If a man marry with a woman that was formerly contracted with another and hath issue by her Co. l. 6. 66. a. 4 in Sir Moyle Finches case that issue in truth and in Law beares the sirname of the Father but if afterwards the Baron and Feme be divorced causa praecontractus then hath the issue lost the sirname of the Father because Cognomen majorum est ex sanguine tractum and then is the issue a Bastard and Nullius Filius â—ember of â—â—rliament 9 A Member of Parliament while he continues a Member Dyer 60. a. 22 23. 36 H. 8. is fréed from arrests of his person but when he ceaseth to be a Member he may be arrested again and albeit be being a Member be arrested upon an execution for debt yet that is no discharge of the debt but after the Parliament he may be taken againe by execution upon the same judgment Dyer ibid. 10 Regularly Seisure of Villein the Lord may seise his Villein wheresoever he finds him yet if he abide a yeare within ancient Demesne his condition is altered and the Lord cannot seise him So while the Villein remains in the Kings presence the Lord cannot seise him but afterwards out of his presence he may And these priviledges the Law giveth to Villeins in favorem libertatis 51 According to the diversity of severall persons Vide infrà 86. Co. Inst pars 1. 46. a. 3. 1 If Tenant in taile make a lease for yeares reserving xx s. rent Lease by â—â—nant in 〈◊〉 good 〈◊〉 to severaâ—â—sons and after take a wife die without issue now as to him in the reversion the lease is méerly void but if he endow the wife of Tenant in taile of the land as she may be though the estate taile be determined now is the lease as to the tenant in dower who is in as of the estate of her husband revived againe as against her For as to her the estate taile continueth and she shall be attendant for the third part of the rent and services c. So it is if Tenant in taile make a lease for years ut supra and dieth without issue his wife enseint with a sonne he in the reversion enters against him the lease is void but after the sonne is born the lease is good if it be made according to the Statute of 32 H. 8. cap. 28. and otherwise is voidable Co. ibid. 46. a. 4. 2 The King made a gift in taile of the Mannor of Eastfarleigh in Kent to W. to hold by Knights service W. made a lease to A. for 36 yeares The like reserving 13 pounds rent W. died his sonne and heire of full age all this was found by office As to the King this lease is not of force for he shall have his primer seisin as of lands in possession but after livery the Lessée may enter And if the issue in taile accept the rent the lease shall binde him and shall be good as to him c. And so it was adjudged in Austens case Pa. 2 3 Ph. and M. as Mr. Plowden reported to the Lord Coke Co. ibid. 3 If tenant in fée take wife and make a lease for yeares and dieth Lease voiâ— to the Feâ—â— the wife is endowed she shall avoid the lease and it shall be void as to her but after her decease the lease shall be in force again against him in reversion c. Co. ib. 107. a. 2. 4 Tenure by Cornage of a common person is Knight-service Cornage but of the King is Grand Serjeancy so as the royal dignity of the person of the Lord maketh the difference of the tenure Co. ib. 188. a. 1. 5 If an husband wife Joyntenaâ—â— of a right 〈◊〉 differing â—â—tures and a third person had purchased lands to them and their heirs and the husband before the Statute of 32 H. 8. cap. 1. had aliened the whole land to a stranger in fée and died In this case the wife and the other joyntenant were joyntenants of the right but in several manners according to their several interests viz. the wife had right of action and the other Ioyntenant right of entry For at the Common Law the alienation of the husband was a discontinuance to the wife of the one moity and a disseisin to the other joyntenant of the other moity Howbeit these differing rights might well stand together in joynture for they are joyntenants of the right because they may joyne in a writ of right c. Co. ib. 202. a. 3 6 If a man seised of lands in right of his wife Entry of sevâ—ral persons â—â—veral effects maketh a feoffment in fée by déed indented upon condition that the Feoffée should before a certain day demise the lands to the Feoffor for his life Co. l. 8. 43 44. Whittinghams case c. If the condition be broken the Feoffor may re-enter and shall be again seised as in his former estate viz. in right of his wife But in case the Feoffor die before entry albeit the heire of the husband enter for the condition broken yet it is impossible for him to have the estate that the Feoffor had at the time of the condition made for the Feoffor had an estate in the right of his wife which commenced by the coverture and with the coverture was dissolved And therefore when the heire entreth for the condition broken and defeateth the Feoffment his estate doth vanish and the estate is thereupon immediately vested in the wife c. Issue in taile Particeps criminis 7 If Tenant in taile and his issue disseise the Discontinuée of Tenant in taile and Tenant in taile die whereby the lands descend to the issue Co. Inst pars 1. 357. b. 2. In this case the issue shall be remitted and shall be in as Tenant in tail against every stranger and shall deraign the first warranty but not against the Discontinuée because he was
67. a. Tookers case 67 If two Ioyntenants let their land for life reserving rent Release of one Joyntenant to another c. if one of them release unto the other that release unto the other that release is good to settle the whole estate and rent in him to whom the release is made without any attornment at all of the Tenant for life in respect of the privity betwéen the Tenant for life and them in the reversion So it is also albeit there be thrée or more Ioyntenants and one of them release to one of the other Howbeit there is a difference betwéen these releases for the release in the â—â—e case maketh no degrée but he to whom the release is made is supposed in from the first Feoffor whereas in the other it worketh a degrée and he to whom the release is made is in the per by him that made it yet in neither of these cases is there any attornment requisite by reason of the privity But if one Ioyntenant make a Lease for years reserving a rent and dieth the other Ioyntenant shall have the reversion because he claimes paramount that Lease as by the first Feoffor Howbeit he shall not have the rent for that there is no privity betwéen him and the Tenant for years as there was in the other case betwéen the tenant for life and them in the reversion c. Attornment by â—ne Joynteâ—ant good for â—oth 68 If two joynt Lessées for years Co. ib. 319. a. 4. or for life be ousted or disseised by the Lessor and he enfeoff another Here if one of the Lessées re-enter this is a good attornment and shall bind both in respect of the privity betwéen the Ioyntenants For an attornment in Law is as strong as an attornment in Deed. Co. l. 2. 67. a. Tookers case Grant of a Seigniory by â—ne shall have â—n Assise beâ—ore attornment 69 If there be Lord and Tenant Littl. §. 579. Co. ib. 320. a. 2. Littl. §. 580 581 582. v. Dyer R. 5. 6. and the Lord grants the Services by Fine hereby the Services are immediately in the Grantée by force of the Fine Howbeit he cannot distraine for any part of the Services without attornment because an Avowry is in lieu of an action which he cannot have without privity nor privity without attornment neither yet before attornment can he have an action of wast a writ of entry ad communionem legem or in consimili casu or in casu proviso a Writ of Customes and Services a Writ of Ward c. But if a man make a Lease for years and grant the reversion by Fine if the Lessee be ousted and the Conusee disseised the Conusee without attornment shall maintaine an Assise for that Writ is maintained against a stranger where there needeth no privity And of such things as the Lord may seise or enter into without suing any action the Conusee before any Attornment may take benefit as to seise a ward or heriot or to enter into the lands or tenements of a ward or escheated to him or to enter for an Alienation of Tenant for life or years or of Tenant by Statute Merchant Staple or Elegit to his Disherison Discontinuâ—nce barres entry 70 One of the chiefe reasons why a Feofment in fee gift in tail Co. ib. 327. a. 1. or Lease for the life of the Lessée made by the Tenant in taile doth make a discontinuance to take away the entry of him in reversion or remainder in case the Tenant in tail die without issue is because the Tenant in tail and he in the reversion or remainder are privies in estate c. Where it is no â—ane 71 If Tenant in tail make a Lease for the life of the Lessée Co. ibid. 333. b. 4. Littl. Sect. 620. and afterwards grant the reversion to another and the Tenant for life attorns and dies and the Grantée of the reversion enters in the life of the Tenant in tall and after the Tenant in tail dies In this case the issue cannot enter but is put to his Formedon in respect of the privity between the Tenant in tail and his issue the Grantee of the reversion having seisin and execution of the entailed lands in the life and from the grant of the Tenant in tail himselfe Howbeit if Tenant in taile make a Lease for life and grant the reversion in fee and the Lessee attorn as before and that Grantee granteth it over to another and the Lessee attorneth again to the last Grantee and then the Lessee for life dieth so as the reversion is executed in the life of Tenant in tail yet this is no discontinuance but that after the death of the Tenant in tail the issue may enter because the last Grantee was not in of the grant of the Tenant in tail himselfe but of the first Grantee between whom and the issue in tail there is no privity c. â—iscontinuâ—ce 72 If at this day Tenant in tail make a Lease for life Co. ib. 333. b. 4. and after by Deed indented and inrolled according to the Statute he bargaineth and selleth the reversion to another in fee and the Lessee dieth so as the reversion is executed in the life of Tenant in tail Albeit the Bargainee is not in the per by the Tenant in tail but rather in by force of the Statute yet in as much as he claimeth the reversion immediately from him which is executed in his life time this is a discontinuance And so it is and for the same cause if Tenant in tail had granted the reversion to the use of another and his heirs c. in respect of the privity between the Tenant in tail and his issue c. Co. ib. 351. a. 4. 73 If a woman grant a term to her own use A trust goeth to Executoâ—â— and not to the Baron taketh Husband and dieth the Husband surviving shall not have this trust but the Executors or Administrators of the Wife for it consisteth in privity P. 32 Eliz. in Canc. in Withams case c. Co. Inst pars 1 352. a. 4. 74 In every Estoppel privity is required Estoppels for it ought to be reciprocal viz. ought to binde both parties and therefore regularly a stranger shall neither take advantage nor be bound by an Estoppel But privies in bloud as the heir Privies in estate as the Feoffee Lessee c. Privies in Law as the Lord by escheat Tenant by the Courtesie Tenant in Dower the Incumbent of a Benefice and others that come under by act in Law or in the Post shall be bound and take advantage of estoppels c. Littl. §. 674 675. Co. ib. 356. a. 3. 75 If a man let a house to a woman for life For an actâ—â—â— of wast priâ—â— is requisite saving the reversion to the Lessor and after one sues a feigned action against the woman and recovers the
selleth c. unto A. B. and C. the said Mannor with the Appurtenances and the reversions and remainders thereof c. together with all rents reserved upon any demise c. to have and to hold to them and to their Assignes immediately after the decease of the owner of the Mannor for the terme of seventéen yeares In this case the grant ought to take effect intirely as a demise at the Common Law or intirely by bargain and sale by raising of an use by force of the Statute of 27 H. 8. and not for part by the Common Law and for another part by raising of an use for thereby the Mannor may be dismembred which is against the expresse demise and bargain because both parties agréed that a Mannor should be intirely demised and bargained and also that a Man nor should be accepted by the Lessée without any fraction or division thereof â—â—â—tenancy 〈◊〉 intire Eâ—â—â—te â—â—â—omment by â—e good for â—ll 43 If there bée two Iointenants for life Co. l. 2. 66. b. 4. 67. a. Tookers Case and the Reversioner grants over his estate whereupon one of the Iointenants onely doth attorn Yet this is a good attornment of both to vest the whole reversion in the Grantée because the estate of the joint Lessées being intire for every Iointenant is seised per my per tout the reversion which is dependant and expectant upon such an estate is intire also and therefore the attornment by one of them is attornment for both to convey the whole reversion c. So if the Lessor disseise his two Lessees for life and enfeoff another and one of the Lessées re-enter this act of one of them is attornmenf in Law for both If one Iointenant give seisin of Rent that shall binde his companion as it is agréed in 39 H. 6. 2. If a lease be made to two and after the reversion is granted to one of them this is holden good attornment in Law for both Baldwin 28 H. 8. Dyer 12. b. And all this in the respect of the intirenesse of their estate c. 〈◊〉 condition of â—â—bond to perâ—â—rm to Coveâ—ants is intire 44 A. having an office and power to make Deputies Co. l. 3. 83. b. 4. Colstrits Case by Indenture betwixt him and B. and for a hundred pound paid c. makes deputation thereof to B. and A. covenants with B. that if A. die before B. that then the Executors of A. shall repay unto B. fifty pounds with divers other Covenants in the said Indenture concerning the said office in the enjoyment thereof And A. was bound to B. in two hundred pounds for the performance of Covenants and in debt the breach was alleaged for the non-payment of the said fifty pounds in as much as B. survived A. Here albeit the said Covenant to repay fifty pounds was lawful yet in as much as the rest of the Covenants were against the Statute of 5 E. 6. cap. 16. The bond which was a thing intire being void for those un-lawfull Covenants it was utterly void for all And if the addition of a Law-full Covenant should make the bond of force as to it the Satute would then serve to little or no purpose c. Co. l. 4. 9. a. 3. Bedils Case Ibidem a. 4. 45 Seisin of any part of a service as of part of a Rent A reservatioâ— of a Rent intire of one dayes work when it is done or the like is actual seisin of all to have an Assise because the service in that case is intire c. So if a man make a Lease for life or a gift in taile rendring the first yeares a quarter of wheate and after the yearly Rent of C. S. the seisin of the wheate is the seisin of the Rent whereupon he may have an Assise for all is but one intire reservation c. Co. l. 4. 33. a. 2. in Mittons Case 46 When the King makes a Sheriffe durante beneplacito The Shrâ—ffeâ— Office intire albeit he may determine his Office at his pleasure yet he cannot determine it in part as for a Towne or hundred or any other part nor abridge the Sheriffe of any thing incident or appurtenant to his Office for the Office is intire and so ought he to continue in his Intiretie without any fraction or diminution whatsoever unlesse it be by Act of Parliament or that the King makes any Town c. A County of it self and Constitutes there a Shriffe and all things incident to a Sheriffe within the said Towne but he cannot determine the Office of the Sheriffe or any part thereof without but by constituting a new Sheriffe viz. for the execution and administration of Iustice because the Office is in its nature intire c. Co. lib. 4. 52. Rawlins Case 47 A possessed of an house whereunto a stable was adjoyning A proviso intire for the terme of 30 yeares by deed indented in consideration of 25 l. fine to be afterwards paid demised the same house and stable to B. for 21 yeares rendring unto A. 24 l. per annum quarterly and also 5 l. quarterly at the same feasts untill the saide 25 l. fine should be paid upon condition that if the said summe of 25 l. or the said Rent should be arreare at any Feast c. that then it should be Lawfull for A. to re-enter And afterwards and before any day of payement B. re-demiseth the said stable unto A. for 10 yeares who entred and after the Rent of 24 l. per annum is arreare and Lawfully demanded and also the 5 l. parcell of the summe in grosse was not paid In this case the whole Condition as also the re-entry of A. is suspended For albeit the condition stands upon two parts in the disjunctive viz. Either for the payment of Rent or of a summe in grosse which was collaterall yet in as much as B. re-demised part of the demise to A. viz. the stable whereinto A. entred and the Rent was hereby suspended and hereupon the intire condition both as to the Collaterall summe as also to the said Rent was likewise suspended because although the condition comprehend two severall things in the disjunctive of two severall natures viz. The one a Rent issuing out of the land which is incident to the reversion and may be suspended by the inter-medling with the land the other matter collateral to the land which cannot be suspended by the said re-demise yet here there are not several conditions but one intire condition which referres to two several branches and therefore being suspended in part it is suspended in all And that the condition was intire it appeares by the Conclusion thereof viz. that for the non-payment of the one or of the other it should be Lawfull for the Lessor to re-enter into all the land so that it is but one intire Condition and one intire entry which is not by the Acts of the Parties to be
1. 173. b. 4. that shall avoid the partition in the whole be it of a Mannor that is intire or of acres of ground or the like that are several for the partition in that Case implyeth for this purpose both a Warrantie and a Condition in Law and either of them is intire and giveth an entry in this Case to the whole Co. l. 4. 1. 12. Bustards Case And so it was resolved in Bustards Case Co. l. 4. 121. both in the Case of exchange and partition â—eerage in copercinencie 77 If an Earldome Baronie Co. Inst pars 1. 156. a. 3. or other Peerage descend to Coparteners the Lands shall be divided as amongst other Parteners but the dignitie being intire cannot be parted neither shall it descend to the eldest alone but in such Case the King who is the soveraigne of honor and dignitie may conferre it upon which of the Coheries he please A County intire 78 A writ of Dower is brought against the Alienée of the Baron Co. lib. 9. 17. b. 2. in Anus Benigfields Case and he voucheth the heire In this Case the Demandant may testise that the heire hath Lands descended unto him in the same County for to another County the originall doth not extend and may pray that he may be endowed of his Estate So in 4 E. 4. 36. 6 E. 3. 11. The Tenant in a writ of Dower vouched the heire of the Baron and the Demandant testifieth that he hath Lands by descent c. in the same County and judgement was given against the heire But if he had none there it should have béen given against the Tenant Vide suprà 55. 110. An intire condition 79 If there be an obligation with Condition Dier 16. 88. 28 H. 8. that if I infeoffe another before such a Feast of the Mannor of Dale discharged of all manner of Rents In this Case if a stranger hath a Rent issuing out of the said Mannor and I make a Feoffment and at another day afterwards and before the Feast I purchase a release of the stranger here the Condition is not observed in as much as the Mannor ought to have bin discharged at the time of the Feoffment simul semel because the Condition was intire But if the Condition be that I pay 10. l. build an house and goe of your errand to Pauls before such a Feast In such Case I may well doe these Acts upon several dayes before the Feast because the Condition was not intire â—ease to two 80 If a Lease be made to two for lives terme of their Dier 67. a 18. 3 E. 6. and they make partition and the one dies his part shall revert to the Lessor because their lives are several the life of the one not being the life of the other But in a Lease be made to two for term of yeares with proviso that if the Lessées die within the term that then the term shall cease and they make partition or out of them aliens his part and dies In this Case the Lessor cannot enter into his part that dies but the grantee or the executors of the Lessée if he made an alienation shall have his part during the life of the Survivor because the terme of yeares is intire and cannot cease as to one and continue to the other â—stresse 81 An Honor is intire as well as a County or Mannor and therefore a distresse taken in the County of Wilts in a place which is parcel of the Honor of Wallingford the Castel and Court whereof is within the County of Berk was driven to that Castel and there impouded and upon a replevin delivered since the Statute of 1 2. P. M. 12. Dier 168. 20. 1 El. and held good For afterwards at the suit of the Defendant the Plaint was removed by an Accedas ad Curiam directed to the Sheriffe of Oxon and the Plaintife counted of the taking in praedicto loco in Com. Wilts and all held good per Curiam Dier 227. 44. 6 El. 82 A general pardon discharged all post fines under 6 l. And for the fine there were two writs of Covenant Post-fine but onely one concord of Lands in two Counties and the Post-fine being extracted intirely did exceed 6 l. but being divided it was under which division Sank-ford requested but the Concord being intire the Court adjudged the Post-fine but one also Dier 246. 70. 8 El. 83 In a Replegiare against a Bishop and others Challenge they were at several issues but one venire facias was awarded the Bishop challengeth the Array because there was no Knight and this challenge was held good for all because the venire facias was intire albeit the issues were several Dier 256. 11. 9 El. 84 Tenant for life surrenders the one Moitie Intire reservation and the Lessor grants the whole Land to a stranger Habendum the one Moitie for life and the other for 40 yeares after the death of the Tenant for life rendring 40 l. per annum In this Case the Lessor may distraine and a vow for the whole Rent presently albeit the one Moitie be but terra revertens and the reason is for that the reservation is intire Dier 260. 22. 9 El. 85 In Debt upon a lease for yeares of several parcels Non demisit pleaded the parties are at issue upon non dimisit and it was found a demise of all but one parcel and damages assessed Howbeit the Plaintife could not have judgement because the Lease and Count were intire and did containe all Hob. 66. Cox and Jenner 86 Where two commit Trespass Trespass a release to one of them of all actions real and personal enures to both albeit he to whom the release is made is not party to the suit but is onely mentioned in the declaration with a simul tum c. because the Trespass is intire and therefore cannot be released to one but must also be released to all that are guilty thereof Vide Hob. 70 Parkens Case Ho. 180. Slowley and Sveley 87 Where a man hath a personal Action against two Defendants Trespass if they plead severally and he be non-suite against the one before he hath judgement against the other he shall be barred against both for the Trespas being intire the non-suite worketh in nature of a release of the whole 71 Argumentum à Divisione est fortissimum in Lege Co. Inst p. 1. 213. b. 3. 1 An example or two of this Argument you shall find in Littleton An impaâ—â—â— Rent whereof the first is in Sect. 344. where he puts this Case If a man enfeoffe another upon Condition that he and his heires shall render unto a stranger and his heires an annuall Rent of 20 s. c. and upon failer of payment that the Feoffor and his heires may enter this is a good Condition yet the summe so reserved cannot be
Rubro cap. 78. where it is said Qui servum suum liberat in Ecclesia vel Mercato vel Comitatu vel Hundredo coram testibus palà m faciat liberas ei vias portas conscribit apertas lanceam gladium vel quae liberorum arma in manibus ei ponat c. Co. ibid. 139. a. 4. Littleton §. 209 8 The Law doth tender much the liberty and fréedome of the subject in general But especially of a Commialty A Custome 〈◊〉 have a fine sâ— marrying tâ— Daughter void as if a Lord of a Mannor will prescribe that there is a Custome within his Mannor that every Tenant that marieth his Daughter to any man without the Lords licence shall pay a fine to the Lord this is a void Custome to bind a Frée-man for every Frée-man may marry his Daughter to whom he and the pleaseth And therefore to claim such a fine by a general Custome within a Mannor is against the fréedom of a Frée-man that is not bound thereunto by particular term tenure c. Howbeit such a Custome will hold amongst Villeins or amongst Frée-men that hold in Villeinage or base tenure c. Co. ib. 156. b. 1 9 At the Common Law upon an indictment or appeal of Treason Peremptory Challenge or Felony the Prisoner might in favorem vitae challenge peremptorily viz. 35. which was under the number of thrée Iuries But by the Statute of 22 H. 8. cap. 14. the number was reduced to 20. in petty Treason Murder and Felony and in Case of high Treason and Mis-prision of high Treason it was taken away by the Statute of 33 H. 8. cap. 23. and afterwards by the Statute of 1 2 Ph. M. cap. 10. the Common Law was revived So that now for any Treason the Prisoner shall have his challenge to the number of thirty five as before And so it was resolved by the Iustices upon conference betwéen them in the Case of Sir Walter Raleigh and George Brooks Co. ibid. 157 b. 4 And albeit the Offender be not arraigned upon the Crime it self but the issue is joyned upon a collateral point yet shall the party have such challenges as aforesaid As if a man be out-lawed for Treason or Felony at the Kings suit and the party for avoyding thereof alledgeth Imprisonment or the like at the time of the Out-lawry In this Case although the Issue be joyned upon a collateral point yet shall the party in favorem vitae have such challenges as if he had béen arraigned upon the offence it self because this also by a mean concerneth his life And it is to be observed that this kinde of challenge is called peremptory because the party may challenge peremptorily upon his own dislike without shewing any cause at all Howbeit if the Defendant challengeth for cause he must shew the cause presently and then also albeit the Iuror be tried indifferent yet may the party afterwards challenge him peremptorily And all these priviledges concerning Challenges are granted to the Defendant in favorem vitae c. â—n criminal Cases no priâ—y verdict 10 By the Law of England Co. ibid. 158 a. 2. a Iury after their evidence given upon the issue ought to be kept together in some convenient place without meat or drink fire or candle which some Books call imprisonment and they are to have no spéech with any unlesse it be the Bailiff and with him onely after they are agréed When they are so agréed they may in Causes betwéen party and party if the Court be risen give a privy Verdict before any of the Iudges of the Court and then they may eat and drink and the next morning in open Court they may either affirm or alter their privy Verdict and that which is given in Court shall stand But in criminal Causes which concern life and member the Iury can give no privy Verdict but must alwayes give it in open Court and canâ—â—t be discharged by the Court or any other until they have given up their Verdict accordingly c. Life liberty â—espected more â—â—n Infancy 11 Regularly no Laches shall be adjudged in an Infant Co. ibid. 227. b. 2. yet if an Infant hath a Villein that is fled into ancient Demesne and he claim him not within a year and a day that Non-claim of the Villein shall take away the seisure of the Infant and this is in favorem libertatis So if an Infant bring not an appeal of the death of his Ancestor within a year and a day he is barred of his appeal for ever and this is in favorem vitae for the Law respects more liberty and life then the priviledge of infancy â—eare of maâ—ng continuâ—al claim 12 Doubt or fear that concernes the safety of the person of a man Co. ib. 246. a. 2 as Battery Maheim Imprisonment Death c. is sufficient cause to excuse him from going upon the land to make his Claim so that he approach as néer the land as he dare for such doubt or fear but fear of having his houses burnt or of the taking away or spoiling of his goods is no sufficient cause to excuse him because he may recover the same or dammages to the value thereof without any corporal hurt And therefore in such Case he shall go upon the Land to make his claim c. Talis enim debet esse metus qui cadere potest in virum constantem qui in se continet mortis periculum corporis cruciatum Et nemo tenetur se infortuniis periculis exponere 〈◊〉 Felony Out-lawry may be reverâ—ed by plea. 13 If a man be out-lawed Litt. § 419. Co. ib. 259. b. 2 there is two manner of wayes to reverse it viz. by Plea or by writ of Error by plea for when the Defendant cometh in upon the Capias utlagatum c. he may by Plea reverse the same for matters apparent as in respect of a Supersedeas omission of processe variance and other matter apparent in the Record so he do it the same term as some hold But for any matters in fact as Death Imprisonment Service of the King c. he is driven to his writ of Error Neverthelesse in Case of felony he may plead these matters of fact also and that is in favorem vitae c. Co. ibid. 274 b. 2 Finch 29. 14 An expresse manumission of a Villein cannot be upon a Condition subsequent For once frée in that Case and ever frée A Villein free ever And this in favorem libertatis It is other wise of a Condition precedent in the same Case c. Co. ibid. 283 2. 3. 15 The life of a man is so precious in the eie of the Law Life precâ—â—â— in the eie of the Law that it will not suffer by way of plea to justifie in the killing or death of a man And therefore in that Case he shall be received
35 H. 8. 26 In Debt upon an Obligation to perform Covenants of an Indenture Obligation Covenants c. the Defendant pleads a Release of all Covenants in the same Indenture made five yeares after the date of the said Indenture and this was held no good plea in barre of the Obligation because the limitation of the condition being for the performance of Covenants if any Covenant was broken before the sealing and delivery of the Release the Obligation was thereby forfeit and could not be avoided by the Release Dier 210 24. 4 Eliz. 27 A man deviseth Devise that his Executors shall take the profits of his Land untill his heir shall be at full age to pay Debts c. the one dies after the Survivor makes his Executors and dies also the Executor of the Executor last dying shall take the profits because it is an interest that survives It is otherwise if it had béen but a bare authority Dier 219 8. 5 Eliz. 28 A man deviseth that after the death of his wife Devise his land shall be sold by his Executors unà cum assensu A. and makes his wife and a stranger his Executors and dies the feme dies and A. also dies In this case the authority is determined Dier 242 51. 8 Eliz. 29 Two submitted themselves to an Arbitrament by Recognisance concerning the right and interest of 200 acres of land Arbitrameâ— called Kelstorling and for all other actions and suits concerning the same Ita quòd Arbitrium c. before a certain day The Arbitrators award that the Defendant shall have brakes during his life in the Waste of the Town of Kelstorn rendring to the other 2 s. per annum And upon a Demurrer it was adjudged a void award for three causes 1 Because they made their award but of one thing whereas the submission was of two Howbeit if the submission had been by Parol it had been a good award of part 2 They have not awarded the property of the land whereof the submission was but a profit onely out of the land 3 They have not in their award named Kelstorling and although they might intend it yet an averrement of the parties cannot declaim the intent of the Arbitrators And all this because their power being but a bare authority must be strictly observed 100 And therefore these may be countermanded so cannot those An office without profit discharged with profit otherwise 1 Where the Grantée of an Office hath no profits thereby Co. Inst p. 1. 233. a. 4 c. but onely a Collateral certaine Fée there the Grantor may discharge him of his service as to be a Bailiff Receiver Surveyor Auditor or the like the exercise whereof is onely Labour and Charge to him Howbeit though he do discharge yet he must have his Fée c. But where the Grantée besides his certain Fee hath also profits and availes by reason of his Office there the Grantor cannot discharge him of his service or attendance for that would be to the prejudice of the Grantée As if a man doth grant to another the Stewardship of his Courts of his Manors with a certain Fée the Grantor cannot discharge him of his Service and attendance because he hath other profits and fées belonging to his Office which he should lose if he were discharged of his Office So it is also in the case which Littleton putteth § 379. of the Office of the Kéeper of a Park because in that case also he hath not onely his Fée certain but profits and availes also in respect of his Office as Déer-skins Shoulders c Attornment 2 If a feme sole maketh a Lease for life or years reserving a Rent Co. ib. 310. b. 1. and granteth the Reversion in Fée and taketh husband this is a Countermand of the Attornment Power of Arâ—â—tration cannot be made inevocable 3 If a man be bound by Obligation to stand to abide observe Co. l. 8. 82. a. 3. in Vinyors Case c. the Rule Arbitrament c. of another yet he may countermand the authority so given to the Arbitrator for a man cannot by his act make such an authority power or warrant to be uncountermandable which by the Law and of its own 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 assign auditors to take an accompt or I make one my Factor or if I submit my selfe to an arbitrament albeit these are made by expresse words irrevocable or although I grant or bind my self that all these shall stand irrevocably neverthelesse they may be revoked So likewise if I make my last Will and Testament irrevocable yet I may afterwards at my pleasure revoke it for my act and my words cannot alter the judgment of Law and make that irrevokable which of its own nature is revocable And therefore notwithstanding it is said in 5 E. 4. 3 6. That if I be bound to stand to the award that I S. shall make I cannot discharge that Arbitrament because I have bound my self to stand to his award and that if it were without Obligation it would be otherwise Neverthelesse in the one case and in the other the authority of the arbitrator may be countermanded but then in the one case he shall forfeit his Obligation and in the other case he shall lose nothing for ex unda submissione non oritur actio And with this agrées Brooke in abridging the said Book of 5 E. 4. Vide 21 H. 6. 30. 28 H. 6. 6. 49 E. 3. 9. 18 E. 4. 9. 8 E. 4. 10. 9 E. 4. 4. b. 1 a E. 5. 28 H. 8. Di 22. Perkins 14 E. 4. 8. Perkins 19 6. 4 A licence to come to my house to speake with me Licence Authority Countermandable Presentment Oblige not Goods bailed over to be delivered to J. S. or to bestow in Almes a letter of Attorney to deliver seisin all these may be countermanded before they be done But if I present J. S. to a Church I cannot after varie and present a new for a kind of Interest passeth out of me So if I deliver an Obligation as a sorowle into a strangers hand to be delivered to the Obligée upon a Condition to be performed this cannot be countermanded for upon the delivery there passeth an Interest to the Obligée he being as it were party and privy to the delivery Finch 32. Dier 49. 7. c. 33 H. 8. 5 A man delivers a summe of money to another to the use and behoofe of a Woman Bailment and to deliver it unto her upon the day of her marriage In this Case when a man makes such a conditional gift of his frée will and pleasure and delivers the thing in Ovell hand to kéep to the use of a stranger before that condition be performed the bailment which is but a méere authority is revocable So if
consideration of surrender the Quéen grants to the said B. for 21 yeares and 26 El. upon consideration of the surrender of the letters Patents of 23 El. she grants to him for thrée lives from the day of the making Here the demise for thrée lives is void being made upon consideration of the surrender of the letters Patents of 23 El. which were void they being upon consideration of the whole Estate which was not performed part being leased out to divers before Co. l. 7. 17. a. 1 The Case of Swannes 2 R. 3. 15 16. 35 The Custome in Com. Bucks is A signet for the nest that if Swans bréed upon any mans ground there the owner of the ground may take the third Signet in them of the ground where they did so bréed and it was adjudged a good Custome and reasonable because there is quid per quo The Lord Stranges Case in 2 R. 3. 15 and 16. cited in the Case of Swannes Co. 10. 37. b. 2 in Mary Portingâ—ons Case 36 Iudgment given against Tenant in taile with voucher and recompence in value shall bind the Estate taile Taile docke by recovery iâ— value nothwithstanding the Statute de donis 13 E. 1. and by such recovery in value the Tenant in taile shall have a formedon of the land so recovered in value as it was holden 15 E. 3. Briefe 324 vide plus in the Book at large And there is observed that albeit the docking of an Estate taile was never thought of by the Sages of the Law until 12 E. 4. yet long before that time the opinion of the Iudges was that it might be so barred in respect of the recompence of recovery in value Infant â—pellable â—â—â—urn 37 In a per quae servicia against an Infant Co. l. 9. 85. a. â— who hath the Tenancy by descent he shall not have his age but is compellable to attourn because at first the Lord departs with the Land in consideration that the Tenant shall hold of him and shall do him services and pay unto him a yearely Rent For the Tenant is called in Law Tenant peravaile because the Law presumes that he hath benefit and availe above the services that he doth and the Rent that that he payes to the Lord And therefore it is against Reason that when the heire hath the Tenancy peravaile by descent that he shall not pay the yearly Rent c. which was reserved upon the creation of the tenancy And therefore Attornment by an Infant is good which was the principal Case there resolved he being compellable to attourn in a per quae servicia as before is said upon the reason afore-said 〈◊〉 by farâ— not guarâ—â— 38 A Guardian shall not be punished for Wast done by a Stranger but the former shall F. N. B. 60. g. because as is supposed he receives profit out of the farme and may therefore have an action of Trespass against the stranger 〈◊〉 of Mesâ—â—h â—â—gh serâ— done 39 Albeit the Mesne have paid the services to the Lord Paramont Ibidem 138. b. yet if the Tenant be afterwards distrained for the services he shall have a writ of Mesne against the Mesne for it but whether he shall recover damages quaere yet it séemes he shall have damages because the Mesne shall have damages against the Lord Paramount if he will put his cattle into the pound for the Tenant and sue Replevin And yet nient distraine in his default is a good plea in a writ of Mesne â—â—y Aâ—â—l Parson â—â—sors 40 A writ of Annuity is maintainable against the Parson upon his Predecessors grant by assent of Patron and Ordinary Ib. 152. g. 1. and likewise upon an Ordinance made by the Ordinary without the Patron if he have quid pro quo So it is also by the Parson against the Vicar upon the Ordinaries Ordinance if he have quid pro quo Trespass â—â—cord no â—ervise of â—â—rament 41 When a trespass is done an Action conceived for it Pl. 6. a. 1 Fâ—gassaes Case a concord Executorie pleaded is no barre thereof For there being a wrong done and not denied it must be answered with recompence and then the Concord Executory is not any recompence de facto nether is there any Action given thereupon to compel the party to make recompence and so he is without recompence and destitute of means to recover any But upon an Arbitrament where the summe is awarded in recompence to be payd at a day to come that is a good barre because he may have an Act of debt is for at the day limited and so the Trespass is converted into another thing by the Arbitrators who are judges thereof and so it is answered with Action which countervails satisfaction in déed â—compence â—â—lue 42 In a Praecipe the Tenant voucheth Co. Inst p. 1. 393. a. 2. and at the sequatur sub suo periculo the Tenant and the vouchée make default whereupon the Demandant hath judgment against the Tenant And afterwards the Demandant brings a scire facias against the Tenant to have execution in this Case the Tenant may have a Warrantia Cartae And if in that Case a Stranger had brought a praecipe against the Tenant he might have vouched again for by the iudgment given against the Tenant the Warranty lost not his force But in such Case if the Tenant had judgment to recover in value against the vouchée he shall never vouche again by reason of that Warranty because he hath had recompence by taking advantage of the Warranty 43 If an Executor redeeme goods pawned by the Testator to the value of the goods Dier 2. 3. 6 H. 8. he may retaine those goods Executor redeemes a pawn and they shall not be assets in his hands for a man ought to be recompenced for that which he hath lawfully disbursed As a Disseisor who payes Rent chargable upon the Land shall have it recouped in damages Likewise if the Executor pay with his owne money the debt of the Testator he may retaine so many of the goods as amount to the summe or summes so disbursed by him and they shall not be assets in his hands Dier 35. 28. 29 H. 8. 44 A man recovers in a Writ of entry in the Post against Tenant in taile upon a voucher and recovery in value against the Common vouchee and before execution sued the Tenant in taile dies Recovery in value and his Issue enters In this Case the recoveror may well enter upon the Issue for the Issue cannot falsifie this recovery because of the recovery over in value P. Fitzherbert Baldwin sed Shelley è contrà Dier 90. b. 8. 1 Mar. 45 If I Bargaine and fell all my Trées in such a Close Quid pro qâ— an no mention is made of a summe of money for the consideration or if it be not said for a competent of money in this Case nothing passeth
the issue had 〈◊〉 recompence for the moity of the entailed Land and such Partition made no Discontinuance because in that Case it passed not by Livery of Seisin which is an act in Law but the Partition is in truth lesse then a Grant for that it maketh no degrée but each Copercener is in by discent from the Common Auncestor Littl. §. 263. Co. ib. 174. b. 3 27 If there be three or four Perceners who make Partition The Parceners part evicted and the part of one of them is evicted by lawfull entry in this Case she shall hold the other Lands with her other Sisters and so it is also betwéen the surviving Perceners and the Heires of the other or with the Heires of Perceners all being dead It is otherwise of Ioyntenants that make Partition by Déed for that is by act of the parties Littl. §. 290. Co. ib. 187 a. 3. and then the Warranty is destroyed but if Ioyntenants make Partition by Writ upon the Statutes of 31 or 32 of H. 8. the Warranty continues because that is by Act and in Course of Law but Perceners and their Heires coming in by Act of Law viz. by Discent have the same Priviledg above Ioyntenants after Partition as aforesaw Co. ib. 81. b. 2. 28 There is a Diversity betwéen Authorities created by the parties for private Causâ—â— and Authority created by Law Authorities 〈◊〉 do a thing for Execution of Iustice As if a man make a Letter of Attorney to two to do an Act if one of them die the Survivour shall not do it but if a Venire Facias be awarded to four Coroners to impanel and return a Iury and one of them die yet the other shall execute and return the same So if a Charter of Feoffment be made and a Letter of Attorney to four or thrée joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by them four or thrée joyntly nor by any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to four or thrée joyntly or severally to arrest the Defendant two of them may arrest him because it is for the Execution of Iustice Co. ib. 192. a. 2 Littl. §. â—02 29 If there be two Co-perceners in Fée Partition of Parceners anâ— Joyntenants and the one makes a Lease for life this is no severance of the Co-percenery for no withstanding that Lease the Lord shall make one Avowry upon them both but if there be two Ioyntenants and one of them makes a Lease for life this is a severance of the Ioynture and several Avowries shall be made upon them And here the Reason is because Co-perceners come in by Discent but Ioyntenants by purchase the first â—â—ing the Act of Law and the other the Act of the Party Co. ib. 215. a. 1. 30 At the Common Law before the Statute of 32 H. 8. 34. Conditions iâ— Deed and 〈◊〉 Law the Grantée of a Reversion after an Estate for life or yeares could not take advantage of a Condition in Déed as if Land were let for life or yeares rendring Rent upon Condition that if the Rent were not paid at the day the Lessor and his Heires might re-enter here if the Grantée of the Reversion could not before that Statute take advantage of Entry upon the breach of that Condition for the non-payment of the Rent at the day limited by the Lease Littl. § 384. Co. ib. 236. b. 3. But before that Statute and since the Grantée of a Reversion may take advantage of a Condition in Law As if a man make a Lease for life there is a Condition in Law annexed unto it that if the Lessée doth make a greater Estate c. that then the Lessor may enter if this and the like Conditions in Law which do give an Entry to the Lessor the Lessor himself and his Heires shall not onely take benefit of it but also his Assignée and the Lord by Escheat every one for the Condition in law broken in their own time Condition apportioned 31 Since the making of the said Statute of 32 H. Co. ib. 215. a. 3 the Grantée of part of the Reversion shall not take advantage of the Condition as if a Lease be made of three acres reserving a Rent upon Condition c. and the Reversion is granted of two acres the Rent shall be apportioned by the act of the Parties but the Condition is destroyed for that it is intire and against Common Right Dumpors case Co. l. 4. 120. a. 4. But by act in law a Condition may be apportioned as if a lease for yeares be made of two acres one in the Nature of Borough English and the other at the Common Law and the lessor having issue two Sonnes dieth each of them shall enter for the Condition broken for the Reversion Rent and Common are divided by act in Law In the King Case also the Condition in such Case shall not be destroyed but shall still remain in the King â— Condition â—â—possible by 〈◊〉 act of God 32 If Feoffment be made upon Condition Co ib. 219. a. 1. Littl. § 352. that the Feoffée shall give the land to the Feoffor and his Wife to have and hold to them and the heires of their two Bodies the Remainder to the right heirs In this Case if the Feoffée die before any Feoffment made then is the Condition broken because he made not the Estates c. within the time prescribes by the law for when no time is limited for the doing of it then the Feoffée at his peril may perform the Condition during his life although there be no request made or else the Feoffor or his heires may enter but if the feoffment be made upon Condition that the Feoffée before the Feast of S. Michael next coming shall give the Land to the Feoffor and his Wife in tail ut supra and before the day the Feoffée dieth the State of the Heir of the Feoffée shall be absolute because a certaine time is limited by the mutual agréement of the parties within which time the Condition becometh impossible by the Act of God And therefore it is necessary in such Case when a day is limited to add to the Condition that the Feoffée or his Heires shall performe the Condition The Mortgaâ—â—â— dies beâ—â—t the day 33 If a man morgage his Land to another Co. ib. 219. b. 3 upon Condition that if the Mortgageor and I. S. pay 20 s. at such day to the Mortgagée that then he shall re-enter Here if the Mortgageor being in full life will not pay the Money but refuse to pay it and I. S. alone tenders it the Mortgage may refuse it But if the Mortgageor die before the day and I. S. payes the Money to the Mortgagée this is a good performance of the Condition and yet the Letter of the Condition is not performed
the Conusee had sued execution two yeares before the day of payment albeit the Feoffee was a stranger to the Record 18 E. 3. So also in 32 E. 3. A Scire facias was brought by the Grâ—â—â—e of the reversion against him that had execution of the Land by reason of a Statute Merchant and to obtaine the Scire facias alledged that the Conusee had received his duty c. And yet the grantee was neither party and privy likewise if a Parson hath an annuity and recover and after the Church is appropriate to a religious House the Soverâ—igne of the House though he be not party shall have a Scire facias so it is also as is said of two Benefices united Vide Rule 145. 〈◊〉 14. If a Iury in a Leet refuse to make presentment Dyer 211 31. 4. Eliz. the Steward may assesse a Fine upon each of them for contempt and concealement and if the Homage in a Court Baron refuse to do it if they be Copy-holders it is a forfeiture 15. If the Sheriff returne Rescous the party shall have Trovers by the word Convincatur in West 2. ca. 40. 〈◊〉 16. One Cobham being indicted of Piracy stood mute Dyer 241. 49. 7. Eliz. for he answered not directly and therefore had Iudgement of Paine for t dure by the Statutes of 27 H. 8. 4. and 28 H. 8. 15. Howbeit he might have had his Clergy if he had demanded it by the Statute of 1 E. 6. 12. where Piracy is not mentioned 144. It favoureth Common Right … ment of â—â—wer 1. Dower being a thing due of Common right Co. Inst pars 1. 35. a. 3. it may be assigned without Livery of seisin or writing and before the Guardian in Chivalry enter the Heire within age may assigne Dower causa qua supra â—â—â—mon right â—â—mmon â—â—w 2. Where the Tenant holds his land of his Lord by fealty and certaine rent or by homage fealty and certaine rent Litt. S. 213. or by other services and certaine rent and the rent is arreare at a day when it ought to be payd in this case the Lord may distrain for the rent of common right so if a man demise land to another by Deed or without Deed Co. ibid. 142. a. 4. for life or yeares rendring rent if it be arreare c. the Lessor may distraine for it of common right albeit there be no clause of distresse comprised in the Deed or otherwise And when it is said That a man may doe a thing of common right it is as much as to say that he may do it by the common Law And the common Law is called Common right because it is the best and most common birth-right that the Subject hath for the safegard and defence not onely of goods lands and revenues but of his Wife and Children his body fame and life also And when it is said that a man may distraine or do or have any thing of common right it is as much as if it were said he may do or have it by the common Law without any reservation or provision of the party It is worth observation that the common Law of England is sometimes called Right sometimes common Right sometimes Communis justicia The French also call their municipall Law Droit which in their vulgar tongue signifies Right In the great Charter the common law is called Right Rectum Nulli vendemus nulli negalibus aut differemus Justiciam vel rectum In West 2. ca. 1. it is called Common Droit In primes voet le Roy commande que le pais de saincte Eglise de la terre soit bien garde maintaine en touts points que Common droit soit fait a touts anxibien aux povres come aux riches sans regard de nullus which agreeth with the ancient law of King Edgar Porro autem has populo quas servet proponimus leges primum publici Juris beneficio quisquam fruitur idque ex aequo bono sive is dives sive inops fuerit jus Redditur And Fleta saith Item quod pax Ecclesâ—ae terrae inviolabiliter observetur quod communis Justicia singulis pariter exhibeatur Also all the Comissions and Charters for execution of Iustice are Facturi quod ad justiciam pertinet secundum Legem consuetudinem Angliae So as in truth Iustice is the Daughter of the law or common right for the law bringeth her forth and in this sense being largely taken as well the Statutes and Customes of the Realme as that which is properly the common law is included within Common Right Co. Inst pars 1. 147. b. 4. Litt. S. 212. 3. If a man hath a Rent charge to him and his heires issuing out of certaine land if he purchase parcell thereof to him and his heires Rent-chaâ— extinct by purchase of parcell all the Rent-charge is extinct and the annuity also and one of the reasons thereof is because the grant of a Rent-charge out of Land is against Common right Co. ibid. 215. a. 3. 4. By the Common Law no Grantee or Assignee of a Reversion could take advantage of a re-entry by force of a Condition A Grantee part of a Râ—version shalâ— nor take advantage of 〈◊〉 Condition because it was against Common right but this is now altered by the Statute of 32 H. 8. ca. 34. Yet at this day since the Statute a Grantee of part of the Reversion shall not take advantage of a Condition no more then he could before that Statute As if the Lease be of three acres reserving a rent upon Condition and the reversion is granted of two acres in this case albeit the rent shall be apportioned by the act of the parties yet is the Condition destroyed for that it is intire and also against common right and therefore shall not be taken by Equity or implication upon the words of the Statute being without the expresse words thereof Co. ibid. 225. b. 2. 5. There is a difference between a rent and a re-entry A Re-entry cannot be without Deeâ— for upon a gift in tayle or a Lease for life a rent may be reserved without Deed because it is naturall and agreeable to Law that rent should be reserved out of Land but a Condition with a re-entry cannot be reserved in these cases without Deed because that is collaterall unnaturall and against Common right Co. 4. 37. b. 3. Vide Co. l. 8. 79. in Wiat Weilds case 6. There is difference between Common appendant and Common appurtenant for Common appendant may be apportioned Common appendant maâ— be apportioâ—ed not common appuâ—nant because it is of Common right and therefore in that case if the Commoner purchase parcell of the land in which c. yet the Common shall be apportioned as if the Lord purchase parcell of the tenancy the rent being not intire shall be apportioned so if A. hath Common
cases the disseisin is immediately to the heire Howbeit in some cases albeit the disseisin be not done immediately to the heire yet the warranty shall not bar him As if the Father be Tenant for life the Remainder to the Son 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 is executed accordingly the Father dyeth this warranty shall not binde albeit the disâ—eisin was not done immediatly to the Son for the Feoffment of the Lessee is a disseisin to the Father who is particaps criminis So it is if one brother make a gift in tail to another and the Vncle disseise the Donee enfeoffeth another with warranty the Vncle dyeth and the warranty descendeth upon the Donor and the Donee dyeth without issue here albeit the disseisin was done to the Donee and not to the Donor yet the warranty shall not bind him The Father the Son and a third person are Ioynt-tenants in fee the Father maketh a Feoffment in fee of the whole with warranty dyeth the Son dyeth the 3. person shall not only avoid the Feoffment for his own part but also for the part of the son he shall take advantage that the warranty commenced by disseisin though the disseisin be done to another If a man commit a disseisin to the intent to make a Feoffment in fee with warranty albeit he make the Feoffment many years after the disseisin yet because the warranty was done to that intent and purpose the Law shall adjudge upon the whole matter and by the intent couple the disseisin and warranty together And all this because such disseisins commence by wrong So it is also of a warranty that commenceth by abatement or intrusion that is when the abatement or intrusion is made of intent to make a Feoffment in fee with warranty for neither shall that bind the right heire no more then a warranty that commenceth by disseisin because they do also commence by wrong Likewise if the Tenant dyeth without heire and the Ancestor of the Lord enter before the entry of the Lord and make a Feoffment in fee with warranty and dyeth this Warranty shall not bind the Lord because it commenceth also by wrong being in the nature of an Abatement Et sic de similibus An unlawfull Fine not suffered to passe 10. This exception in the Statute of Glocester cap. 3. 6 E. 1. Litt. S. 729. 730 731. Co ibid. Co. ibid. 383. a. 3. whereof no Fine is levied in the Kings Court are to be understood lawfully levied And therefore if the Baron will levy a Fine of the Femes Land without the Feme the Iudges being conusant thereof ought not to take it because it worketh a wrong to the Feme and if it be with warranty to the heire also Neither indeed ought the Iudges to take a Fine which worketh a wrong to a third person Dâ—â—â—ni pro teâ—pore difference 11. Domini pro tempore of a Copy-hold Mannor Co. ibid. 58. b. 1. Co. l. 4. 24. p. 29. Eliz. inter Rouse and Arteis who are in by lawfull title though it be onely for years by Statute Merchant Staple or Elegit at will for wardship in Chivalry c. may hold Courts make admittances and grant voluntary Copies of antient Copyhold lands which come into their hands and such voluntary grants by Copy made by such particular Tenants as aforesaid shall bind him that hath the Freehold and Inheritance because all these be lawfull Lords pro tempore Also Disseisors Abators Intrudors Tenants at sufferance c. of such Mannors who come in by tort and hold by defeasible titles may hold Courts and make admittances of ancient Copyhold-lands which shall stand good against them that right have because these are lawfull acts and they are compellable to do them But voluntary Grants by Copy made by Disseisors Abators Intrudors Tenants at sufferance or others that have defeasible titles shall not bind the Disseisee or others that right have because they come in by tort as aforesaid Livery of part not good 12. If Feoffment be made of a Messuage cum pertinentijs Co. l. 2. 32. a. 1. in Beltisworths case the Lessor de parts with nothing thereby but onely that which is parcell of the house viz. the buildings curtilage and garden Howbeit the keeping of the possession of a house or any parcell of the thing demised against tortious entry and expulsion by the Lessor is not onely possession of all that may passe by the name of Messuage or of such parcell but of all the lands c. which are demised therewith by one intire demise in the same County And therefore if a Lease for years be made of an house a close and divers other Lands and the Lessor makes Livery of the Close in the name of the whole in Lease the Lessee being then in the house and no body for him in the close In this case the Livery is void for the possession of the house by the Lessee at the time of the Livery made is possession also of all the Lands c. contained in the demise because it is to preserve the first right and interest of the Lessee against force and the tortious entry of the Lessor It is so also albeit the Lessee had then demised that close by will but otherwise if he had demised it for years for that had made a severance of it from the rest of the Messuage and Lands demised Election lost by wrong doing 13. If one enfeoff another of two acres Co. l. 2. 37. a. 4. in Sir Rowland Heywaâ—ds case to have and hold the one for life and the other in tail In this case the Feoffee hath election to chose which he shall have for life and which in tail Howbeit if before his election he makes Feoffment in fee of both the acres In such case the Feoffor shall enter into which of the acres he pleaseth for the Forfeiture for the Feoffee by his own act and the wrong done to the Feoffor hath lost his election Co. l. 2. 55. b. 4. in Bucklers case 14. Tenant for life leases for years and then grants to A. Estopell to plead partes finis nihil habuerunt for life from a day to come the Lessee for years atturnes after the day the terme expires and A. enters and leases at will the Lessee for life levies a Fine Come ceo c. to the Tenant at will and then the Remainder enters for the Forfeiture In this case the Fine levyed to the Tenant at will is a Forfeiture and the Remainder may thereupon well enter upon the Tenant at will and thereby charge the disseisin And here albeit neither the Tenant for life nor the Tenant at will have any thing in the Land for the interest of the Tenant for life is past away to A.
right may be preserved viz. to the Demandant his ancient right to the Feoffee or Purchasor the benefit of his Warranty which course is founded upon great reason and equity for the benefit of Warranty would be prevented and avoyed if the Entry of him that right had were lawfull hereby also the danger that many times happeneth by taking of Possessions is warily prevented by Law â—rant of the next avoyâ—â—nce 21. If a man seised of an Advowson in fee by his Deed granteth the next presentation to A. and before the Church becometh void Co ibid. 378. b. 4. by another Deed grants the next presentation of the same Church to B. the second Grant is void for A. had the same granted to him before and the Grantee shall not have the second avoydance by construction to have the next avoydance which the Grantor might lawfully grant because the Grant of the next avoydance doth not import the second presentation but if a man seised of an Advowson in fee take wife now by act in Law is the wife intitled to the third Presentation if the Husband dye before her And in this case if the Husband grant the third Presentation to another and dye the heire shall present twice the Wife shall have the third Presentation and the Grantee the fourth for in this case it shall be taken the third Presentation which he might lawfully grant And so note a diversity between a title by act in Law and by act of the party for the act in Law shall work no prejudice to the Grantee Warranty 22. If a man doth warrant Land to another without this word Heires his heires shall not vouch Co. ibid. 384. b. 4. And regularly if he warrant Land to a man and his heires without naming assignes his Assignee shall not vouch but if the Father be enfeoffed with warranty to him and his heires the Father enfeoffeth his eldest son with warranty and dyeth the Law giveth to the son advantage of the warranty made to his Father because by act in Law the warranty betwixt the Father and the son is extinct which act in Law shall not prejudice him Aâ—signment of Dower 23. An Assignment of Dower by a Disseisor Abator Intrudor Co. ibid. 35. a. 3. c. if there be no covin is good unlesse where it is prejudiciall to the Disseisee c. As if the Husband enfeoff the younger son with warranty and dyeth the eldest disseiseth the younger son and endowes the widow In this case the younger son shall avoid this Assignment for otherwise he shall lose his warranty But a Disseisor Abator Intrudor c. cannot assigne a rent out of the Land to her for her Dower to bind the Disseisee c 24. Vide 33. 5. Disagreement â—â—st be in presence 25. The Law gives favour to an agreement Co. l. 2. 69. a. 1. in Tookers case which tends to the advantage of the party for that may be done in his absence as well as in his presence but so it is not of a dis-agreement for that ought to be done in his presence because the Law conceives the party interessed may use perswasions to the other party and so induce him to agree so Attornement is good though the Grantee be absent Wardship 26. If there be Tenant for life Co. l 2. 93. b. 2. in Binghams case the Remainder in fee of Land holden by Knight-service and the Lord grants his Seigniory for life and after he in the Remainder in fee dyes his heir within age and after the Grantee for life of the Seigniory dyes and then the Tenant for life dyes he in Reversion of the Seigniory shall have the Ward So likewise if he in the Remainder dye his heire within age ut supra and after the Lord dye and then the Tenant for life dyes the heire of the Lord in this case shall have the Ward for the act in Law shall not prejudice any and his Executâ—r cannot have it because it was not a Chattell vested in the Testator Co. l. 3. 65. b. 3. in Penants case Acceptance of â—ent Bar â—â—tra 27. If a man having Rent-service or Rent-charge accept the Rent due at the last day and thereof make an acquittance thereby all the arrearages due before are discharged as it was adjudged in Hopkins and Mortons case Hill Rot. 950. in C. B. Vide 10. Eliz. 271. Dyer but if a man make a Lease for life rendring Rent or if there be Lord and Tenant by Fealty and Rent and the Rent is arreare by 2. years and after the Lessor or Lord disseise the Ter-tenant and then the Tenant recovers in an Assize and the rent which incurred is recouped in damages yet the Lord or Lessor shall recover in Assize the arrearages incurred before the Disseisin and the bar of the last years rent shall not be a bar of the former arrearages Ibid. b. 4. 28. If there be Lord and Tenant and the Rent is arreare Idem and the Tenant makes Feoffment in fee In this case if the Lord accept the Rent or service of the Feoffee he shall lose the arrearages in the time of the Feffor albeit he made him no acquittance for after such acceptance he shall not avow upon the Feoffor at all nor yet upon the Feoffee save onely for the services which incurred in his time as appears in 4 E. 3. 22. 7 E. 3. 8. 7 E. 4. 27. 28 H. 8. Br. Avowry 111. Howbeit In such case if the Feoffor dye although the Lord accept the Rent or Service by the hand of the Feoffee yet shall he not lose the arrearages for now the Lord can avow upon none but the Feoffee and that whereunto the Law compells a man shall never prejudice him So if there be Lord Mesne and Tenant and the Rent due by the Mesne is arreare and after the Tenant fore-judges the Mesne and the Lord receives the Services of the Mesne which now issue immediately out of the Tenancy yet shall he not be barred of the arrearages which issue out of the Mesnalty likewise if the Rent be arreare and the Tenant dye the acceptance of the Services by the hand of the Heire shall not bar him of the arrearages causa qua supra For in all these cases albeit the person be altered yet the Lord accepts the Rent and Services of him who onely ought by the Law to doe them Vide 4 E. 3. 22. 7 E. 3. 4. 7 E. 4. 27. 9 H. 8. Br. Avowry 111. before cited Neither shall acceptance of Rent bar a releife because that is as a blossome fallen from the Tree and a fruit or improvement of the Services Co. l. 3. 72. b. 2. in Westâ—ieâ— case 29. If a Sheriff dye and before another is made Escape one in execution breaks the Goale and goes at large this is no escape for when a Sheriff dyes all the Prisoners are in the custody of the Law