cannot answer it Therefore the parties agree the Fact by their pleading upon Demurrer and ask the Iudgment of the Court for the Law In Special Verdicts the Jury Inform the naked Fact and the Court deliver the Law and so is it in Demurrers upon Evidence in Arrest of Judgments upon Challenges and often upon the Judges Opinion of the Evidence given in Court the Plaintiff becomes Nonsuit when if the matter had been left to the Jury they might well have found for the Plaintiff But upon all general Issues as upon not Culpable pleaded in Trespass Nil debet in Debt Nul tort Nul disseisin in Assize Ne disturba pas in Quare Impedit and the like though it be matter of Law whether the Defendant be a Trespassor a Debtor Disseisor or Disturber in the particular Cases in Issue yet the Jury find not as in a Special Verdict the Fact of every Case by it self leaving the Law to the Court but find for the Plaintiff or Defendant upon the Issue to be tryed wherein they resolve both Law and Fact complicately and not the Fact by it self so as though they answer not singly to the Question what is the Law yet they determine the Law in all matters where Issue is joyn'd and tryed in the principal Case but where the Verdict is Special Hob. f. 227. To this purpose the Lord Hobart in Needler's Case against the Bishop of Winchester is very apposite Legally it will be very hard to quit a Jury that finds against the Law either Common Law or several Statute Law whereof all men were to take knowledge and whereupon Verdict is to be given whether any Evidence be given to them or not As if a Feoffment or Devise were made to one imperpetuum and the Jury should find cross either an Estate for Life or in Fee-simple against the Law they should be subject to an Attaint though no man informed them what the Law was in that Case The legal Verdict of the Jury to be recorded is finding for the Plaintiff or Defendant what they answer if asked to questions concerning some particular Fact is not of their Verdict essentially nor are they bound to agree in such particulars if they all agree to find their Issue for the Plaintiff or Defendant they may differ in the motives wherefore as well as Judges in giving Iudgment for the Plaintiff or Defendant may differ in the Reasons wherefore they give that Iudgment which is very ordinary I conclude with the Statute of 26 H. 8. c. 4. That if any Jurors in Wales do acquit any Felon Murderer or Accessary or give an untrue Verdict against the King upon the Tryal of any Traverse Recognizance or Forfeiture contrary to good and pregnant Evidence ministred to them by persons sworn before the Kings Justiciar That then such Jurors should be bound to appear before the Council of the Marches there to abide such Fine or Ransome for their Offence as that Court should think fit If Jurors might have been fined before by the Law for going against their evidence in matters criminal there had been no cause for making this Statute against Jurors for so doing in Wales only Objections out of the Ancient and Modern Books 1. A Juror kept his Fellows a day and night 8 Ass pl. 35. without any reason or assenting and therefore awarded to the Fleet. This Book rightly understood is Law That he staid his Fellows a day and a night without any reason or assenting may be understood That he would not in that time intend the Verdict at all more than if he had been absent from his Fellows but wilfully not find for either side In this sense it was a Misdemeanor against his Oath For his Oath was truly to try the Issue which he could never do that resolv'd not to conferr with his Fellows And in this sense it is the same with the Case 34 E. 3. where Twelve being sworn and put together to treat of their Verdict 34 E. 3. Bra. Title Jurors n. 46. one secretly withdrew himself and went away for which he was justly fined and imprison'd and it differs not to withdraw from a mans duty by departing from his Fellows and to withdraw from it though he stay in the same Room and so is that Book to he understood But if a man differ in Iudgment from his Fellows for a day and a night though his dissent may not be as reasonable as the Opinion of the rest that agree yet if his Iudgment be not satisfied one disagreeing can be no more criminal than four or five disagreeing with the rest 2. A Juror would not agree with his Fellows for two dayes 41 Ass p. 11. and being demanded by the Judges If he would agree said He would first die in Prison whereupon he was committed and the Verdict of the Eleven taken but upon better advice the Verdict of the Eleven was quasht and the Juror discharg'd without Fine and the Justices said the way was to carry them in Carts until they agreed and not by fining them and as the Judges err'd in taking the Verdict of Eleven so they did in imprisoning the Twelfth and this Case makes strongly that the Juror was not to be fined who disagreed in Iudgment only Much of the Office of Jurors in order to their Verdict is ministerial as not withdrawing from their Fellows after they are sworn not withdrawing after challenge and being tryed in before they take their Oath 36 H. 6. f. 27. Br. Jurors 18. not receiving from either side Evidence after their Oath not given in Court not eating and drinking before their Verdict refusing to give a Verdict and the like wherein if they transgress they are finable but the Verdict it self when given is not an Act ministerial but judicial and according to the best of their judgment for which they are not finable nor to be punisht but by Attaint 3. The Case of 7 R. 2. Title Coronae Fitz. 108. was cited where upon acquittal of a Common Thief the Judge said The Jury ought to be bound to his good behaviour during his life But saith the Book quere per quel ley but that was only gratis dictum by the Judge for no such thing was done as binding them Hob. f. 114. 4. Bradshaw and Salmons Case was urg'd where a Jury had given excessive Damages upon a Tryal in an Action of Covenant and the Court of Star-Chamber gave Damages to the Complainant almost as high as the Jury had given upon the Tryal But the Jury who gave the Damages were not question'd Though saith the Book they might have been because they receiv'd Briefs from the Plaintiff for whom they gave Damages which was a Misdemeanor but the express Book is That the Jury could not be punisht by Information for the excessive Damages but only by Attaint therefore not for their false Verdict without other Misdemeanor which answers some other Cases alledg'd Nor can any man shew
the said William to be begotten of her the said Anne Infeoffed James Lane and John Lane Gentlemen of the said Premisses Habendum to them their heirs and assigns for ever To the use of the said William Vescy the Feoffer and his assigns for term of his life without impeachment of Waste and after to the use of the said Anne the Tenant if the Marriage succeeded between them for term of her life for her Joynture and after her decease to the use of the heirs males of his body on her body begotten forever and for want of such issue to the use of the heirs females of him the said William Vescy upon her body begotten and for want of such issue to the use of the right heirs of him the said William Vescy And bound him and his heirs to warrant the premisses as aforesaid to the said Feoffees and their Heirs to the uses aforesaid By vertue whereof and of the Statute of Uses the said William was seis'd for term of his life with the Remainder over as aforesaid And after the said marriage was had and solemnized between him and the Tenant Arine That William died so seis'd without any issue of his body and Anne surviv'd him and entred and by vertue of the said Feoffment and the Statute of Uses is seis'd in her Demesne as of Freehold for term of her life And that the said warranty of the said William descended from him to the said Elizabeth and Sarah as Cosins and Coheirs of him the said William the Son that is to say Daughters and Coheirs of John Vescy Brother and Heir of the said William the Son and demands Iudgment if against the said Warranty the Demandants shall be received to demand and avers her self and Anne Hewett named in the Feoffment to be the same person The Replication The Demandants reply and confess the Feoffment to uses of William as is pleaded in Barr to Lane and Lane and their heirs with warranty But further say That the said William Vescy the Son after that is the Four and twentieth of December 14 Car. 2. at Tickhill aforesaid died without any issue of his body which they are ready to aver and demand Iudgment if they shall be barred of their Action against the said Anne by the said Feoffment and warranty The Rejoynder Anne the Tenant rejoyns that the Replication is insufficient and demurs thereupon The matter of the Replication is all set forth in the Defendants Plea in Barr but only the time of William Vescy's death which was not material upon which the Demandants ought to have demur'd and not to have replyed impertinently The Case upon the Pleading William Vescy seis'd of the Land in question in his Demesne as of Fee held of King Charles the First in free Soccage as of his Honour of Tickhill by his last Will and Testament devis'd the same to John Vescy his eldest Son and the heirs males of his body and for default of such to Robert Vescy and the heirs males of his body and for default of such to William Vescy his Son and the heirs males of his body and for default of such to Matthew Vescy and the heirs males of his body and died Then John entred and died seis'd without issue male leaving two daughters Elizabeth and Sarah now Demandants together with their Husbands After his death Robert entred and died seis'd without issue male Then William entred and was seis'd and Matthew in the life of William died without issue male William by his Deed Indented in Consideration of an intended marriage with Anne the now Tenant and for other Considerations infeoffed James Lane and John Lane Habendum to them and their Heirs to the use of William the Feoffor for term of his life and after to the use of Anne Hewet now the Tenant for her life then to the use of the heirs males of his body upon her begotten and for default of such to the use of the heirs females of his body on her begotten and for default of such to the use of his right Heirs And bound him and his Heirs to warrant to the said Feoffees and their Heirs William by vertue of the said Feoffment and of the Statute of Uses was possessed and after he married the now Tenant and died seis'd as of his Freehold without any issue of his body After his death Anne his wife now Tenant by vertue of the said Feoffment and Statute of Uses entred and was posssessed Against whom Elizabeth and Sarah Daughters and Coheirs of John Vescy and Cosins and Coheirs of William the Devisor bring their Formedon in the Reverter Anne the Tenant in possession would rebutt and barr them by the said warranty of William Vescy the Son whose Cosins and Coheirs they are videlicet the Daughters and Coheirs of John eldest Brother of the said William And whether the said Anne Tenant by the said Feoffment and Statute of Uses can rebutt them by the said warranty is the general Question For Resolution of which I must make these previous Questions The first is If before the Statute of 27 H. 8. to Vses Tenant in tayl had made a Feoffment in Fee to uses with warranty to the Feoffees and their Heirs such Feoffees in a Formedon in the Reverter brought against them by the Heirs of the Donor could have rebutted and barr'd them by the warranty of the Tenant in tayl For if the Feoffees to use in such case could not have barr'd the Heirs of the Donor before the Statute by the warranty it is evident the Cestuy que use since the Statute cannot barr them for he can have no more power since the Statute than the Feoffees to use had before the Statute by the warranty I put the Case before the Statute for clearness sake only for though since the Statute there are Feoffees to use as before yet no question can be made upon their rebutter by a warranty because the Estate is out of them by the Statute as soon as it is in them And as to this the Case in effect is no more than Whether the warranty of Tenant in tayl which must be admitted to be a Collateral warranty descending upon the Donor or his Heirs will barr him or them of the Reversion The second Question I make admitting the Heirs of the Donor to be barr'd by the warranty of Tenant in tayl descending upon them is Whether after the Statute of Uses the Cestuy que use can have any benefit of the warranty granted to the Feoffees to use either by way of Voucher or Rebutter Because the Cestuy que use is not in possession in the per by the Feoffees but by the Statute of Uses The third Question is admitting generally that the Cestuy que use shall have benefit of the warranty made to the Feoffees to use Whether yet in this Case Anne the Tenant being a Cestuy que use shall have benefit of the warranty made to the Feoffees Because neither William
the Remainder because it is a Collateral warranty but because the Statute de Donis doth not restrain his warranty from barring him in the Remainder as hath been clear'd but leaves it as at Common Law but it doth restrain his warranty from barring him in the Reversion as shall appear There is one Case in Littleton remarkable for many Reasons where the warranty of Tenant in tayl is lineal and not collateral to the person in Remainder and therefore binds not if the Case be Law as may be justly doubted as Littleton is commonly understood Litt. Sect. 719. Land is given to a man and the heirs males of his body the Remainder to the heirs females of his body and the Donee in tayl makes a Feoffment in Fee with warranty and hath Issue a Son and a Daughter and dieth this warranty is but a lineal warranty to the Son to demand by a Writ of Formedon in the Descender and also it is but lineal to the Daughter to demand the same Land by a Writ of Formedon in the Remainder unless the Brother dieth without Issue male because she claimeth as Heir female of the body of her Father engendred But if her Brother release to the Discontinuee with warranty and after dye without Issue this is a collateral warranty to the daughter because she cannot conveigh the right which she hath to the Remainder by any means of descent by her brother 1. Here the warranty of the Father Donee in tayl is but lineal to the Daughter in Remainder in tayl But she claims saith the Book her Remainder as heir female of the body of the Donee in tayl which differs the Case from other persons in Remainder of an Estate tayl But of this more hereafter 2. And by the way in this Case Sir Edward Coke though he hath commented upon it hath committed an over-sight of some moment by using a Copy that wanted a critical emendation For where it is said That the warranty of the Father is but lineal to the Daughter to demand the Land by a Formedon in the Remainder unless the Brother dye without Issue-male because she claims as Heir female of the body of her Father By which reading and context the sense must be That if the Son dye without Issue male of his body then the warranty of the Father is not lineal to the Daughter cujus contrarium est verum for she can claim her Remainder as heir female of the body of her Father and thereby make the Fathers warranty lineal to her but only because her Brother died without Issue male That which deceived Sir Edward Coke to admit this Case as he hath printed it was a deprav'd French Copy thus Si non frere devyast sans Issue male which truly read should be Si son frere devyast and the Translation should be Not unless the Brother dye without Issue male but If her Brother dye without Issue male Another reason is that his French Copy was deprav'd Because the French of it is Si non frere devyast sans Issue male which is no Language for that rendred in English is Vnless Brother dye For it cannot be rendred as he hath done it unless the Brother dye without the French had been Si non le frere devyast and not Si non frere devyast Sir Edward Coke's first Edition of his Littleton and all the following Editions are alike false in this Section I have an Edition of Littleton in 1604. so deprav'd which was long before Sir Edward Coke publisht his but I have a right Edition in 1581. which it seems Sir Edward Coke saw not where the Reading is right Si son frere devyast sans Issue male Therefore you may mend all your Littletons if you please and in perusing the Case you will find the grossness of the false Copies more clearly than you can by this my Discourse of it And after all I much doubt whether this Case as Littleton is commonly understood that is That this lineal warranty doth not bind the Daughter without Assets descending be Law my Reason is for that no Issue in tayl is defended from the warranty of the Donee or Tenant in tayl but such as are inheritable to the Estates intended within that Statute and no Estates are so intended but such as had been Fee-simples Conditional at the Common Law And no Estate in Remainder of an Estate tayl that is of a Fee Conditional could be at Common Law All Issues in tayl within that Statute are to claim by the Writ there purposely formed for them which is a Formedon in the Descender not in Remainder 3. A third thing to be cleared is That the Statute de Donis did not intend to preserve the Estate tayl for the Issue or the Reversion for the Donor absolutely against all warranties that might barr them but only against the Alienation with or without warranty of the Donee and Tenant in tayl only for if it had intended otherwise it had restrain'd all Collateral warranties of any other Ancestor from binding the Issue in tayl which it neither did nor intended though well it might such warranters having no title 4. The Statute de Donis did not intend to restrain the Alienation of any Estates but Estates of Inheritance upon Condition expressed or implyed such as were Fee-simples Conditional at Common Law And therefore if Tenant for life aliened with warranty which descended upon the Reversioner such Alienation or Warranty were not restrained by this Statute but left at Common Law 1. Because the Estate aliened was not of Inheritance upon Condition within that Statute 2. He in the Reversion had his remedy by entring for the forfeiture upon the Alienation if he pleas'd which the Donors of Fee-simples Conditional could not do These things cleared I think it will be most manifest by the Statute de Donis and all ancient Authority That the warranty of Tenant in tayl though it be a Collateral warranty will not barr the Donor or his Heir of the Reversion After the Inconvenience before recited That the Donees disinherited their Issue against the form of the Gift then follows Et praeterea cum deficienti exitu de hujusmodi Feoffatis Tenementum sic datum ad donatorem vel ad ejus haeredes reverti debuit per formam in Charta de dono hujusmodi expressam licet exitus si quis fuerit obiisset per factum tamen Feoffamentum eorum quibus Tenementum sic datum fuit sub conditione exclusi fuerunt hucúsque de Reversione eorundem Tenementorum quod manifeste fuit contra formam doni Hitherto the Inconveniences and Mischiefs which followed the Issue of the Donees and to the Donor when they fail'd by the Donees power of Alienation are only recited in the Statute without a word of restraint or remedy The follows the remedy and restraint in these words only and no other Propter quod Dominus Rex perpendens quod necessarium utile est in praedictis casibus which
been breach'd is no Judicial Opinion nor more than a gratis dictum But an Opinion though Erroneous concluding to the Iudgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer Yet if a Court give Judgment judicially another Court is not bound to give like Judgment unless it think that Judgment first given was according to Law For any Court may err else Errors in Judgment would not be admitted nor a Reversal of them Therefore if a Judge conceives a Judgment given in another Court to be erroneous he being sworn to judge according to Law that is in his own conscience ought not to give the like Judgment for that were to wrong every man having a like cause because another was wrong'd before much less to follow extra-judicial Opinions unless he believes those Opinions are right The other Case is in Coke 5 Car. Salvin versus Clerk in Ejectment upon a special Verdict Alexander Sidenham Tenant in tayl to him and the Heirs males of his body the Reversion to John his eldest Brother made a Lease for three Lives warranted by the Statute of 32 H. 8. c. 28. with warranty And after 16 Eliz. levies a Fine with warranty and proclamations to Taylor and dies without Issue male leaving Issue Elizabeth his Daughter Mother to the Plaintiffs Lessor In 18 Eliz. the Lease for Lives expir'd In 30 Eliz. John the elder Brother died without Issue the said Elizabeth being his Neece and Heir The Defendant entred claiming by a Lease from Taylor and Points entred upon him as Heir to Elizabeth A question was mov'd upon a suppos'd Case and not in fact within the Case Whether if the Fine had not been with proclamation as it was and no Non-claim had been in the Case as there was this warranty should make a discontinuance in Fee and barr Elizabeth it not descending upon John after Alexanders death but upon Elizabeth who is now also John's Heir or determined by Alexander's death The Judges were of opinion as the Reporter saith That the warranty did barr Elizabeth and consequently her Heir because the Reversion was discontinued by the Estate for Lives and a new Fee thereby gain'd and the Reversion displac'd thereby and the warranty was annex'd to that new Fee But this Case is all false and mis-reported 1. For that it saith the Lease for Lives was a discontinuance of the Reversion thereby a new Fee gain'd to Tenant in tayl which he passed away by the Fine with warranty which could not be for in the Case it appears the Lease was warranted by the Stat. of 32 H. 8 and then it could make no discontinuance nor no new Fee of a Reversion could be gain'd 40 Eliz. Keen Copes C. 602. pl. 13. and then no Estate to which the warranty was annex'd and so was it resolv'd 40 El. Keen Copes Case 2. That Opinion was extra-judicial it being concerning a point not in the Case but suppos'd 3. That Case was resolv'd upon the point of Non-claim and not upon this of the warranty which was not a point in the Case 4. Some of the Judges therefore spoke not to that point as appears in the Case As to the second Question Admitting the warranty of Tenant in tayl doth bind the Donor and his Heirs yet in regard the Defendant Tenant in possession cannot derive the warranty to her self from the Feoffees as Assignee or otherwise Whether she may rebutt the Demandants or not by her possession only is the question and I conceive she may not as this Case is I shall begin with those Authorities that make and are most press'd against me which is the Authority of Sir Edward Coke in Lincoln Colledge Case in the third Report and from thence brought over to his Littleton f. 385. a. His words in Lincoln Colledge Case f. 63. a. are He which hath the possession of the Land shall rebutt the Demandant himself without shewing how he came to the possession of it for it sufficeth him to defend his possession and barr the Demandant and the Demandant cannot recover the Land against his own warranty And there he cites several Cases as making good this his Assertion In the same place he saith it is adjudg'd 38 E. 3. f. 26. That an Assignee shall rebutt by force of a warranty made to one and his Heirs only This Doctrine is transferred to his Littleton in these words If the warranty be made to a man and his heirs without this word Assignes yet the Assignee or any Tenant of the Land may rebutt And albeit no man shall vouch or have a Warrantia Chartae either as party Heir or Assignee but in privity of Estate yet any one that is in of another Estate be it by disseisin abatement intrusion usurpation or otherwise shall rebutt by force of the warranty as a thing annex'd to the Land which sometimes was doubted in our Books when as in the Cases aforesaid he that rebutteth claimeth under and not above the warranty I shall clearly agree no man shall vouch or have a warrantia Chartae who is not in in privity of Estate that is who hath not the same Estate as well as the same Land to which the warranty was annexed And the reason is evident because the Tenant must recover if the Land be not defended to him by the warranter such Estate as was first warranted and no other unless a Fee be granted with warranty only for the life of the Grantee or Grantor in which Case the Grantee upon voucher recovers a Fee though the warranty were but for life I shall likewise agree the Law to be as Sir Edward Coke saith in both places if his meaning be that the Tenant in possession when he is impleaded may rebutt the Demandant without shewing how he came to the possession which he then hath when impleaded be it by dissism abatement intrusion or any other tortious way And for the reason given in Lincoln Colledge Case That it sufficeth that the Tenant defend his possession But if his meaning be that the Tenant in possession need not shew that the warranty ever extended to him or that he hath any right to it then I must deny his Doctrine in Lincoln Colledge Case or in Littleton which is but the former there repeated to be Law For as it is not reasonable a man should recover that Land which he hath once warranted to me from me what title soever I have in it at the time when he impleads me So on the other side it is against reason I should warrant Land to one who never had any right in my warranty And the same reason is if a man will be warranted by Rebutter he should make it appear how the warranty extends to him as if he will be warranted by Voucher for the difference is no other than that in the case of Voucher a stranger impleads him in
case of Rebutter the Warranter himself impleads him and in a Voucher he must make his title appear to be warranted Ergo in a Rebutter But he needs not have like Estate in the Land upon a Rebutter as upon Voucher which is for the reason given of recovering in value And the only reason why the person who is to warrant impleading the Tenant of the Land shall not recover but be rebutted by the warranty is because if he should recover the Land the Tenant who is intitled to the warranty must recover in value from him again and therefore to avoid Circuit of Action he shall not recover but be rebutted and barr'd as is most reasonable I shall therefore first make it appear by all ancient Authorities That the Tenant in possession shall not rebutt the Demandant by the warranty without he first make it appear that the warranty did extend to him as Heir or Assignee To prove this are full in the point Hill 8 E. 3. f. 10. tit garranty pl. 48. New Edit f. 283. b. num 28 The Book of 8 E. 3. f. 10. of the Old Edition Hillary Term tit Garranty pl. 48. where upon a great Debate it was rul'd That the Tenant must shew how he was entitled to the warranty and how it extended to him and accordingly did so before his Plea was admitted by way of Rebutter 10. E. 3. f. 42. b. New Edit f. 391. b. num 42 Another Book full in the point is 10 E. 3. f. 42. b. of the Old Edition where in like manner the Tenant was forc'd to shew how the warranty extended to him upon Debate and it is remarkable in that Case That his shewing the Deed of warranty to him whose Assignee he was and the Deed of Assignment to himself was not enough but he was compell'd to plead orally as the manner then was That William who had the warranty assign'd to him by his Deed there shew'd forth and the reason given that the Deed of Assignment could not speak and make his Plea and was but Evidence of the truth of his Plea But in that very Case when it was replyed That he was not Tenant by the Assignment of William but by disseisin of the Plaintiff it was not permitted without traversing the Assignment of William For if he were once intitled to the warranty what Estate soever he had when impleaded he might rebutt though he could not vouch Which Case proves fully both my Positions That a man cannot rebutt without shewing how the warranty extends to him 2. That so doing he may whatever Seisin he hath at that time be it by Disseisin or Abatement c. or otherwise 22 Ass pl. 88. A third Case is when the Tenant being impleaded pleaded the warranty of the Demandants Father to one A. and bound him and his Heirs to warrant to A. his Heirs and Assigns and that he was Assignee of A. and demanded Judgment In that Case because he did not plead that he was Assignee of A. by Deed the Plea was disallow'd which since hath been thought not necessary but à fortiori if he had pleaded no Assignment at all from A. by Deed or without Deed to intitle him to the warranty his Plea had been necessarily disallowed My next Assertion is That the Tenant in possession setting forth how the warranty extends to him needs not set forth by what Estate or Title he is in possession To this I shall cite three Books full in the point 6 E. 3. f. 7. old Edit new Edit 6 E. 3. f. 187 Num. 16. 10 F. 3. f. 42. cited before old Book 45 E. 3. But in all these Cases it is to be noted That the Tenant rebutting though he was in possession of another Estate than that to which the warranty was annex'd yet constantly shew'd how the warranty was deriv'd to him which Sir Edward Coke observ'd not either in Lincoln Colledge Case or his Littleton but cites in Lincoln Colledge Case the Case of 45 E. 3. 45 E. 3. f. 18. and some others I shall mention after to shew a man may rebutt being in of another Estate than that which was warranted which is true but not without intitling himself to the warranty That the Law of rebutting stands upon the difference I have taken besides the Authorities urg'd will be evident for these Reasons As a warranty may be created so may it be determin'd or extinguish'd various ways 1. It may be releas'd as Littleton himself is Sect. 748. 2. It may be defeasanc'd as Sir Edward Coke upon that Sect. 748. 3. It may be lost by Attainder Sect. 745. 4. It may be extinguish'd by Re-feoffment of the warranter or his Heirs by the Garrantee or his Heir In all these Cases if the warranty be destroy'd it cannot be rebutted for there cannot be an accident to a thing which is not and rebutting is an accident incident to a warranty And therefore if the warranty have no being there can be no rebutter Why then admit A. warrants Land to B. and his Assigns during the life of B. after B. releases this warranty to A. and then Assigns to C. C. is impleaded by A. and pleads generally that A. warranted to B. for his life and that B. is still living if C. could rebutt A. by this manner of pleading without shewing when B. assigned to him so to derive the benefit of the warranty to himself A. could never have benefit of the Release of the warranty because it could not appear whether the warranty were releas'd before or after the assignment if before then the warranty is gone and cannot be rebutted but if after it may So if A. binds him and his Heirs to warrant to B. his Heirs and Assigns B. dyes his Heir releases the warranty and dies and then the Heir of the Heir assigns The Tenant is impleaded by A. If he may rebutt by his bare possession without shewing how the warranty extended to him A. can have no benefit of his Release before any assignment was made for the Demandant cannot be suppos'd to know the time of the assignment and consequently cannot know how to plead the Release until the time of the assignment appear which is most consonant in reason with the Authorities before urg'd Another reason is That constantly in elder times when the Tenant pleaded a warranty to rebutt he concluded his Plea that if he were impleaded by a stranger the Demandant was to warrant him which could not be without shewing how the warranty extended to him for he was not to warrant him if impleaded by a stranger because he had possession of the Land only Sir Edward Coke in Lincoln Colledge Case cites the Book of 38 E. 3. f. 26. as adjudg'd to prove that the bare possession of the Land is sufficient for the Tenant to rebutt for that the Assignee may rebutt a warranty made only to a man and his Heirs If that were so it were to his purpose but there is
no such Case in 38 E. 3. f. 26. but the Case intended is 38 E. 3. f. 21. and he quotes the folio truly in his Littleton But the Case is not That an Assignee may rebutt or have benefit of a warranty made to a man and his Heirs only but that a warranty being made to a man his Heirs and Assigns the Assignee of the Heir or the Assignee of the Assignee though neither be Assignee of the first Grantee of the warranty shall have like benefit of the warranty as if he were Assignee of the first Grantee which hath been often resolv'd in the old Books To the same purpose he cites a Case out of 7 E. 3. f. 34. 46 E. 3. f. 4. which doth but remember that of 7. as adjudg'd That the Assignee of Tenant in tayl might rebutt the Donor whence he infers as before that the Tenant in possession might rebutt without any right to the warranty But the Inference holds not from that Case The Case of 7 E. 3. was That Land was given in tayl and the Donor warranted the Land generally to the Donee his Heirs and Assigns the Donee made a Feoffment in Fee and died without Issue and the Donor impleading the Feoffee was rebutted because he had warranted the Land to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee of the Donee and therefore rebutted not because he had a bare possession But this Judgment of 7 E. 3. Sir Edward Coke denies and perhaps justly to be Law now because the Estate tayl being determin'd to which the warranty was first annex'd the whole warranty determin'd with it But however the Case no way proves what it is alledg'd for in Lincoln Colledge Case That a man may rebutt without ever shewing the warranty extended to him for the Feoffee did in that Case shew it So in the Case 45 E. 3. f. 18. the Feme who rebutted shew'd she was Grantee of the warranty To this may be added That what is delivered as before in Lincoln Colledge Case is neither conducing to the Judgment given in that Case nor is it any Opinion of the Judges but is Sir Edward Coke's single Opinion emergently given as appears most clearly in the Case To conclude When the Feoffees were seis'd to the use of William Vescy for his life and after to the use of the Defendant his wife for her life and after to the use of the right Heirs of William Vescy And when by Operation of the Statute of 27 H. 8. the possession is brought to these uses the warranty made by William Vescy to the Feoffees and their Heirs is wholly destroy'd For if before the Statute the Feoffees had executed an Estate to William for life the Remainder to his wife for life the Remainder to his right Heirs The warranty had been extinguish'd by such Execution of Estate and releas'd in Law for it could be in none but in William and his Heirs who could not warrant to himself or themselves By Littleton Sect. 743. for his Heirs in such Case take not by Purchase but Limitation because the Freehold was in him with a Remainder over to his right Heirs and so hath as great an Estate in the Land as the Feoffees had and then the warranty is gone by Littleton Litt. Sect. 744. And now the Statute executes the possession in the same manner and the warranty is in none for the time present or future but extinct If the warranty had been to the Feoffees their Heirs and Assigns it might have been more colourably question'd Whether the mean Remainder were not an Assignee of the Feoffees and so to have benefit of the warranty but the warranty being to the Feoffees and their Heirs only no Estate remaining in them no Assignee can pretend to the warranty 2. William Vescy could by no possibility ever warrant this Estate to the Defendant during his life and where the warranty cannot possibly attach the Ancestor it shall never attach the Heir as by Littleton's Case If a man deviseth Lands in Fee to another with warranty for him and his Heirs his Heirs shall not be bound to the warranty because himself could never be And though in that Case the Estate to be warranted commenc'd after the death of the Warranter and here the Remainder to the wife is in being before his death yet the reason differs not for himself could no more warrant this by any possibility than that and his Heir might as equally warrant the Estate devis'd as this Next Justice Jones in Spirt and Bences Case cites a Case 7 Eliz. the same with this Resolution resolved in the Common Pleas That the mediate Remainder could not be warranted In this Case if the Feoffees before the Statute had either voluntarily or by coercion of the Chancery after the death of the first Cestuy que use for life executed the Estate of the mean Remainder such person in Remainder could have no benefit of the warranty being but an Assignee of the Feoffees because the warranty was only to them and their Heirs No more can the person in Remainder here whose Estate is executed by the Statute be warranted more than if such Estate had been executed by the Common Law There are another sort of persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees to the Garrantee but have the Estate warranted dispositione instituto Legis which I conceive not to differ materially whether they have such Estate warranted by the Common Law or by Act of Parliament The first of this kind I shall name Ass p. 9. 35 is Tenant by the Courtesie who as was adjudg'd 35 Ass might rebutt the warranty made to his wives Ancestor yet was neither Heir nor formal Assignee to any to whom the warranty was granted nothing is said in the Book concerning his vouching but certainly the wives Heir may be receiv'd to defend his estate if impleaded by a stranger who may vouch according to the warranty or may rebutt as the Case of 45 E. 3. f. 18. is But this difference is observable also where such a Tenant rebutts it appears what claim he makes to the warranty and so the Inconveniences avoided which follow a Rebutter made upon no other reason than because he who rebutts is in possession of the Land warranted A second Tenant of this kind is the Lord of a Villain 22 Ass p. 37. and therefore the Case is 22 Ass That Tenant in Dower made a Lease for life to a Villain which in truth was a forfeiture for making a greater Estate of Freehold than she had power to make and bound her and her Heirs to warranty the Lord of the Villain entred upon the Land in her life time and before the warranty attach'd the Heir who had right to enter for the forfeiture the Mother died and the Heir entred upon the L. of the Villain who re-entred and the Heir brought an Assise The L. of the Villain
pleaded the warranty and that the Heir if a stranger had impleaded him was bound to warrant the Estate and therefore demanded Judgment if the Heir himself should implead him 1. It is there agreed if the warranty had attach'd the Heir before the Lords entry the Heir had been bound but quaere 2. By that Book it seems the Lord impleaded by a Stranger might have vouch'd the Heir if the warranty had attach'd him before the Lords entry But in this Case it appears the Lord was no formal Assignee of the Villains for this warranty must be as to an Assignee for the Estate warranted was but for life and the Lords Estate was only by order of the Law A third Case of this nature is Where the Ancestor granted Lands to a Bastard with warranty but how far the warranty extended as to the Heirs or Heirs and Assigns of the Bastard appears not in the Case the Bastard died without Issue and consequently without Heir the L. by Escheat entred upon whom the Heir entred the warranty of his Ancestor having not attach'd him before the Bastards death for it seems this was in a Case where the Heir might have entred in his Ancestors life time so avoided his warranty as in the former case of the L. of a Villain by the Book the warranty having not attach'd him during the Bastards life the Lord by Escheat could have no benefit of it but if it had attach'd him he might ut videtur In this Case if the warranty were to the Bastard and his Heirs only it determined he dying without Issue and then there could be no Rebutter or Voucher by the Lord by Escheat if the warranty had attach'd the Heir but if it were to him his Heirs and Assigns then the Lord whose title is by the Act and Disposition of the Law and not as Assignee in the per had notwithstanding the benefit of this warranty quod nota These Cases are mentioned in Lincoln Colledge Case and in Spirt and Bences Case in Cr. 1. and in both places admitted for Law Nor seems this very unreasonable That the warranty being an incident to the Estate warranted should accompany it where the Law dispos'd the Estate and Land warranted to all intents 2. In many Cases the Law disposing the Estate if the warranty attended it not the disposition made by the Law were in vain for without the warranty the Estate may be necessarily avoided Such persons who come to the Estate dispositione Legis are not properly in in the post but they modally have the Estate by consent both of the Warranter and Garrantee because they have it by the Act of Law Statute or Common to whose dispose every man is as much consenting and more solemnly than he is to his own private Deed. And after this way if the two last Cases be Law the Cestuy que use having his Estate by operation and appointment of the Statute of Uses of 27 H. 8. may have the benefit of the warranty attending the Estate though he be no formal Assignee or Heir to the Feoffees to use Many other Estates are of this kind as Tenant in Dower if endowed of all the Land warranted An Occupant Tenants by the Statute of 6 R. 2. c. 6. where the Feme consents to the Ravisher Tenant by 4 5 P. M. because the ward consented to her taking away without the Guardians consent Lands warranted which after become forfeited to the King or other Lords c. Quaere in the Cases of 22 Ass p. 37. 29 Ass p. 34. Whether notwithstanding the warranty had descended upon the Heir while the Lands were in the possession of the Villain in the first Case and of the Bastard in the second Case before any entry made by either Lord the Lands could have rebutted or vouched by reason of those warranties being in truth strangers to the warranty and not able to derive it to themselves any way But if after the warranty descended upon the Villain or Bastard the Villain or Bastard had been impleaded by the Heir and had pleaded the warranty against the Heir and had Judgment thereupon by way of Rebutter then the Lords might have pleaded this Judgment as conclusive and making the Villains Title or Bastard good against the Heir and the Heir should never have recover'd against the Lords And this seems the meaning of the Book 22 Ass p. 37. if well consider'd Though in Spirt and Bences Case no such difference is observ'd Caetera desiderantur The Court was in this Case divided viz. The Chief Justice and Justice Archer for the Demandant and Justice Wylde and Justice Atkins for the Tenant CONCERNING PROCESS Out of the COURTS at WESTMINSTER INTO WALES Of late times and how anciently Memorandum These Notes following were all wrote with the proper hand of the Chief Justice Sir John Vaughan and intended to be methodised by him in order to be delivered in Court A Man taken upon a Latitat in England 10 Jac. Bolstrode part 2. f. 54 55. Hall and Rotherams Case puts in two Welch men for his Bayl Judgment passing against him it was a Question Whether after a Capias ad Satisfaciendum issued against the Principal who was not to be found Process might issue into Wales which must be by Scire Facias first against the Bayl whereupon Mann the Secondary of the Kings Bench informed the Court that it had been so done in like Cases many times But the Court was likewise informed that Brownloe Chief Pronotary of the Common Pleas affirmed they did not then use to send such Process into Wales but only Process of Outlawry But Mann affirming that their Course was otherwise in the Kings Bench the Court awarded Process into Wales against the Bayl and said If the parties were grieved they might bring their Writ of Error 1. This Award of the Kings Bench hath no other Foundation to justifie it than Mann 's the Secondaries Information That the like had been often done which was his own doing possibly and never fell under the Consideration of the Court. 2. The Court weighed it no more than to say The parties grieved might have a Writ of Error which by the way must be into the Parliament for it concerned the Jurisdiction of the Court which the Act of 27 Eliz. for Errors in the Exchequer Chamber excepts and upon that ground any injustice might be done because the party wronged may have a Writ of Error 3. Brownloe the Chief Pronotary of the Common Pleas and a most knowing man affirm'd no such Process issued thence into Wales and but only Process of Outlawry So as this awarding of Process into Wales upon the usage of that Court affirmed by Mann is counter'd by the contrary usage of the Common Pleas affirmed by Brownloe Therefore that Book and Authority is of no moment to justifie the issuing of a Scire facias into Wales 11 Jac. Bolstrode part 2. f. 156 157. Bedo v. Piper The next Case
whole Record but to say That in such a Court such a Judgment was obtained 92 10. In pleading of a Judgment it may be as well pleaded quod recuperaret as recuperet 93 11. An erroneous Judgment is a good barr until reversed by Error 94 12. How a Recognizance or Statute ought to be pleaded 102 13. Every Defendant in a Quare Impedit may plead Ne disturba pas 58 14. The pleading of a Seisin in gross Appendancy and Presentation in a Quare Impedit 15 15. The Tenant shall never be received to Counter-plead but he must make to himself by his plea a Title to the Land and so avoid the plaintiffs Title alledged by a Traverse 58 16. A Commoner prescribes for Common for Cattel levant and couchant antiquo Messuagio which is not good because Cattel cannot to a common intent be levant upon a Messuage only 152 153 17. See the form of pleading a Custome to have solam separalem pasturam for the Tenant against the Lord 252 253 18. The pleading of per nomen in a Grant and how it shall be taken 174 175 Pluralities See Title Statute 14 22. 1. If a man have a Benefice with Cure whatever the value is and is admitted and instituted into another Benefice with Cure having no Qualification or Dispensation the first Benefice is void and the Patron may present 131 Pope 1. The Pope could not change the Law of the Land 20 2. He could formerly grant a Dispensation for a plurality 20 23 24 3. He did formerly grant Faculties Dispensations for Pluralities Unions Appropriations Commendams c. 23 Prerogative See King 1. By the Common Law all Wrecks did belong to the King 164 2. The extent of the Kings Prerogative is the extent of his power and the extent of his power is to do what he hath a will to do according to that Ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest 357 3. The King may take Issue and afterwards Demurr or first Demurr and afterwards take Issue Or he may vary his Declaration but all this must be done in one Term 65 4. He may choose whether he will maintain the Office or traverse the Title of the party and so take traverse upon traverse 62 64 Prebend and Prebendary 1. What a Prebendary or Rectory is in the eye of the Law 197 2. A Prebend or Church-man cannot make a Lease of their Possessions in the right of the Church without Deed 197 Prescription See Modus Decimandi Custome 1. What Prescriptions for Commons are good and what not 257 2. How Copyholders shall prescribe for Common 254 3. The Tenant a Commoner prescribes against his Lord to have Solam separalem pasturam this is a void prescription 354 355 356 4. Inhabitants not Corporate cannot prescribe in a Common 254 5. One Commoner may prescribe to have Solam separalem pasturam against another Commoner 255 Presentation See Advowson Ordinary Parson Quare Impedit 1. In a Quare Impedit the Plaintiff must alledge a presentation in himself or in those under whom he claims 7 8 57 2. So likewise must the Defendant ibid. 8 3. What a bare presentation is 11 4. A void presentation makes no usurpation 14 5. When the presentation shall make an usurpation ibid. 6. Where the King presents by Lapse without Title and yet hath other good Title the presentation is void ibid. 7. Where a Parson is chosen a Bishop his Benefices are all void and the King shall present 19 20 21 8. Where a Benefice becomes void by accepting another without a Dispensation the Patron is bound to present without notice and where not 131 Presidents 1. An extrajudicial Opinion given in or out of Court is no good president 382 2. Presidents without a Judicial decision upon Argument are of no moment 419 3. An Opinion given in Court if not necessary to the Judgment given of Record is no Judicial Opinion nor more than a gratis dictum 382 4. But an Opinion though erroneous to the Judgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer 382 5. Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas are not to be regarded 399 6. New presidents are not considerable 169 7. Presidents are useful to decide Questions but in Cases which depend upon fundamental principles from which demonstrations may be drawn millions of Presidents are to no purpose 419 8. Long usage is a just medium to expound an Act of Parliament 169 Privity See Estate 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and Distrained 39 2. Such privity is created by Attornment ibid. 3. Where a new Estate is gained the privity of the old Estate is lost 43 4. Where it is not lost between Grantor and Grantee of a Rent after a Fine levied by the Grantee to his own use ibid. 5. Where an Estate in a Rent may be altered and no new Attornment or privity requisite 144 Priviledge 1. Priviledge lies only where a man is an Officer of the Court or hath a prior Suit depending in the Common Pleas and is elsewhere molested that he cannot attend it 154 2. All Officers Clerks Attorneys of the Common Pleas and their Menial Servants shall have their Writ of Priviledge 155 Process 1. No Process shall issue from hence into Wales but only Process of Outlawry and Extent 396 397 2. A Fieri Facias Capias ad satisfaciendum or other Judicial Process shall not go from hence thither 397 3. Process in Wales differ from Process in England 400 Prohibition See Title Marriage 1. Prohibitions for encroaching Jurisdiction are as well grantable in the Common Pleas as Kings Bench 157 209 2. A man was sued in the Spiritual Court for having married with his Fathers brothers wife and a Prohibition was granted 206 207 c. 3. The Judges have full conizance of Marriages within or without the Levitical Degrees 207 220 4. They have conizance of what Marriages are incestuous and what not and may prohibit the Spiritual Court from questioning of them ibid. 5. How the suggestion upon the Statute of 32 H. 8. concerning Marriages must be drawn to bring the matter in question 247 Proof See Witnesses Evidence 1. A witness shall be admitted to prove the Contents of a Deed or Will 77 Property 1. In Life Liberty and Estate every man who hath not forfeited them hath a property and right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and to punish the wrong-doer 337 2. To violate mens properties is never lawful but a malum in se 338 3. But to alter or transfer mens properties is no malum in se ibid. Proviso 1. A power is granted to make Leases of Lands
usually letten Lands which have been twice letten are within this proviso 33 2. Of Lands which have at any time before been usually letten that which was not in Lease at the time of the proviso nor twenty years before is out of the power 34 Possession 1. He that is out of possession if he brings his Action must make a good Title 8 2. Where one man would recover any thing from another it is not sufficient to destroy the Title of him in possession but you must prove your own to be better than his 58 60 3. When a man hath gotten the possession of Land that was void of a Proprietor the Law casts the Freehold upon him to make a sufficient Tenant to the Precipe 191 4. Prior possession is a good Title against him who hath no Title at all 299 5. A separate possession of one and the same Land can never be in two persons at one and the same time 42 47 6. By a Fine the Estate may be changed although the possession is not changed 42 43 7. The Conuzee of a Rent granted by Fine to Uses cannot have any actual Seisin nor be in possession since the 27 H. 8. 49 Quare Impedit 1. WHere in a Quare Impedit the Plaintiff and Defendant are both actors 6 7 8 58 2. The Plaintiff in his Count must alledge a presentation in himself or in those from whom he claims 7 8 17 57 3. So likewise must the Defendant because they are both Actors 7 8 57 60 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 60 5. Where the King or a common person in a Quare Impedit sets forth a Title which is no more than a bare Suggestion he shall not then forsake his own and endeavour to destroy the Defendants Title 61 6. In all Quare Impedits the Defendants may traverse the presentation alledged by the Plaintiff if the matter of Fact will bear it 16 17 7. But the Defendant must not deny the presentation alledged where there was a presentation 17 8. Where the Presentation and not the Seisin in gross of the Advowson or Appendancy is traversable 10 11 12 13 9. When the Seisin in gross or appendancy is traversable 12 10. An Incumbent is elected Bishop and before Consecration he obtains a Dispensation in Commendam Retinere he is afterwards consecrated and dyes the Patron shall present and not the King 18 19 20 21 22 23 24 25 26 27 11. If a man who hath a Benefice with Cure accepts of another without Dispensation or Qualification the first Benefice is void and the Patron may present and his Clerk who is admitted instituted and inducted may bring his Action of Trespass or Ejectment 129 130 131 12. All Quare Impedits for disturbance to Churches within the Lordships Marchers of Wales shall be brought in England in the next adjoyning County 409 410 13. Judgment with a Cessat Executio upon the Bishops Disclaimer 6 14. Where the Parson Patron and Ordinary are sued in a Quare Impedit and the Ordinary disclaims and the Parson looseth by default the Plaintiff shall have Judgment to recover his presentation and a Writ to the Bishop to remove him with a Cessat Executio until the plea is determined between the Plaintiff and Patron ibid. Rebutter See Title Warranty 1. WWO may Rebut 384 2. The difference between a Rebutter and Voucher 385 386 387 3. Whether the Tenant in possession may Rebut without shewing how he came to the possession 385 4. Whether a Rebutter may be when the warranty is determined 387 5. How many several sorts of persons may Rebut and how those that come in ex institutione dispositione legis may Rebut 390 391 392 Recital 1. The Recital of one Lease in another is not a sufficient proof that there was such a Lease as is recited 74 75 Recognizance See Title Statutes 8. 1. The Chancery and all the Courts at Westminster had before the Statute of Acton Burnel and still have power to take Recognizances 102 2. So likewise may every Judge take a Recognizance in any part of England as well out of Term as in Term 103 3. Where a Recognizance taken before the Chief Justice of the Common Pleas is in the nature of a Statute Staple 102 4. Execution upon such Recognizances are not as upon Statutes but by Elegit ibid. Record 1. How a Record is to be pleaded 92 Recovery and Common Recovery See Title Statutes 13. See Voucher Warranty 1. Where a Recovery against its nature shall be a Forfeiture because it is taken as a common Conveyance 51 2. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to have risen out of the Estate of the Recoverer 51 Release 1. Joyntenants may release and confirm to each other 45 Remainder See Title Warranty 1. A Remainder must depend upon some particular Estate and be created at the same time with the particular Estate 269 2. A Remainder cannot depend upon an absolute Fee simple 269 367 3. If Land is devised to A. and his Heirs as long as B. hath Heirs of his body the Remainder over this is good in a Devise not as a Remainder but as an Executory Devise 270 4. A Remainder in Fee upon a Lease for years 46 5. The Statute de Donis restrains not the warranty of Tenant in Tayl from barring him in the Remainder in Tayl by his warranty descending upon him 367 377 Rent 1. By the Common Law there ought to be an Attornment to enable the Distrainor to make a good Avowry upon a Distress for Rent 39 2. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost ibid. 3. An Estate in a Rent-charge may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 4. The power to distrain may be lost by a perpetual Union Suspension pro tempore Dying without Heir Granting of it upon Condition and by a granting over 39 5. The several things that a Rent is subject to 40 6. Rent is granted pur auter vie the Grantee dies the Rent is thereby determined 200 201 7. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereupon here the Grantor hath lost his arrears and cannot afterwards distrain 40 8. A Rent may arise out of the Estate of Cestuy que use upon a Recovery 52 9. There can be no Occupancy of a Rent 200 Reversion See Title Warranty 1. By the grant of a Reversion Lands in possession will not pass but by the grant of Lands a Reversion will pass 83 2. If Tenant for life alien with warranty which descends upon the Reversioner such alienation with warranty is not restrained by the Statute de Donis 370 3. An alienation with warranty which shall hinder the Land from reverting to the Donor or his
Heirs is expresly forbidden by the Statute de Donis 374 Right See Title Action 1. Where there can be presumed to be no remedy there is no right 38 Seisin 1. THe profits of all and every part of the Land are the Esplees of the Land and prove the Seisin of the whole Land 255 2. In an Entry sur Disseisin or other Action where Esplees are to be alledged the profits of a Mine will not serve 254 Spoliation 1. The Writ of Spoliation lyes for one Incumbent against the other where the Patrons right comes in question 24 Statute See Recognizance 1. A Recognizance taken before the Chief Justice of the Common Pleas in the nature of a Statute Staple 102 Statutes in general 1. Where an Act of Parliament is dubious long usage is a just medium to expound it by and the meaning of things spoken and written must be as hath been constantly received by common acceptation 169 2. But where usage is against the obvious meaning of an Act by the vulgar and common acceptation of words then it is rather an oppression then exposition of the Act 170 3. When an Act of Parliament alters the Common Law the meaning shall not be strained beyond the words except in cases of publick utility when the end of the Act appears to be larger than the words themselves 179 4. Secular Judges are most conizant in Acts of Parliament 213 5. When the words of a Statute extend not to an inconvenience rarely happening but doth to those which often happen it is good reason not to strain the words further than they will reach by saying it is casus omissus and that the Law intended quae frequentius accidunt 373 6. But where the words of a Law do extend to an inconvenience seldom happening there it shall extend to it as well as if it happens more frequently 373 7. An Act of Parliament which generally prohibits a thing upon a penalty which is popular or only given to the King may be inconvenient to diverse particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons 347 8. Whatsoever is declared by an Act of Parliament to be against Law we must admit it so for by a Law viz. by Act of Parliament it is so declared 327 9. Where the Kings Grant is void in its creation a saving of that Grant in an Act of Parliament shall not aid it 332 10. How an Act of Parliament may be proved there hath been such an Act where the Roll is lost 162 163 404 405 407 11. An Act of Parliament in Ireland cannot effect a thing which could not be done without an Act of Parliament in England 289 12. Distinct Kingdoms cannot be united but by mutual Acts of Parliament 300 13. A repealed Act of Parliament is of no more effect than if it had never been made 325 Statutes 1. Merton cap. 4. The Statute of Merton which gave the owner of the Soyl power to approve Common did not consider whether the Lord was equally bound to pasture with his Tenants or not but it considered that the Lord should approve his own Ground so as the Commoners had sufficient 256 257 2. The inconveniences before the making of the Statute and the several remedies that were provided by it 257 1. Westm 1. 3 E. 1. The Antiquae Custumae upon Woolls Woolfells and Leather were granted to E. 1. by Parliament and therefore they are not by the Common Law 162 163 1. Westm 1. cap. 38. Attaints in Pleas real were granted by this Statute 146 1. Westm 2. cap. 24. The Quare Ejecit infra terminum is given by this Statute for the recovery of the Term against the Feoffee for an Ejectment lay not against him he coming to the Land by Feoffment 127 Statute of Glocester 1. Restrained warranties from binding as at Common Law 366 377 2. Before this Statute all Warranties which descended to the Heirs of the Warrantors were barrs to them except they were Warranties which commenced by Disseisin 366 3. The reason why the warranty of Tenant in Tayl with assets binds the right of the Estate Tayl is in no respect from the Statute de Donis but by the equity of the Statute of Glocester by which the Warranty of the Tenant per Curtesie barrs not the Heir for his Mothers Land if his Father leaves not assets to descend 365 4. If this Statute had not been made the lineal Warranty of Tenant in Tayl had no more bound the right of the Estate Tayl by the Statute de Donis with assets descending than it doth without assets ibid. Westm 2. De Donis 1. All Issues in Tayl within this Statute are to claim by the Writ purposely formed there for them which is a Formedon in the Descender 369 2. it intended not to restrain the alienation of any Estates but such as were Fee-simples at the Common Law 370 3. This Statute intended not to preserve the Estate for the Issue or the Reversion for the Donor absolutely against all Warranties but against the alienation with or without Warranty of the Donee and Tenant in Tayl only 369 4. Therefore if Tenant for life alien with Warranty which descended upon the Reversioner that was not restrained by the Statute but left at the Common Law 370 5. By this Statute the Warranty of Tenant in Tayl will not barr the Donor or his Heir of the Reversion ibid. 6. The Donee in Tayl is hereby expresly restrained from all power of alienation whereby the Lands entayled may not revert to the Donor for want of issue in Tayl 371 7. See a further Exposition upon this Statute from fol. 371 to 393 1. Wales Statute de Rutland 12 E. 1. after the Conquest of it by Edward the First was annext to England Jure proprietatis and received Laws from England as Ireland did Vide postea 9 17 18. and had a Chancery of their own and was not bound by the Law of England until 27 H. 8. 300 301 399 400 2. Although Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with the Administration of Justice there in other manner than now they have with the Barbadoes Jersey c. all which are of the Dominions of England and may be bound by Laws made respectively for them by an English Parliament 400 See for a further Exposition 401 402 c. Acton Burnell 13 E. 1. 1. Recognizances for Debt were taken before this Statute by the Chancellor two Chief Justices and Justices Itinerants neither are they hindred by this Statute from taking them as they did before 102 28 E. 3. c. 2. concerning Wales 1. Tryals and Writs in England for Lands in Wales were only for Lordships Marchers and not for Lands within the Principality of Wales Vide ante 7. pòstea 17 18. for the Lordships and Marchers were of the Dominion of England and held of
the King in Capite 411 31 E. 3. cap. 11. Concerning Executors 1. Though Executors and Administrators are not compelled by the Common Law to answer Actions of Debt for simple Contracts yet the Law of the Land obligeth payment of them 96 2. Upon committing Administration Oath is taken to administer truly which cannot be without paying the Debts 96 3. Oath is likewise taken to make a true account to the Ordinary of what Remains after all Debts Funerals and just Expences deducted 96 1. 34 E. 3. c. 7. of Attaints This Statute granted Attaints in personal Actions 146 1. 2 H. 6. cap. 4. Those born in Ireland are subject to and bound by the Laws of England as those of Calais Gascoign and Guien were 293 1. 7. H. 8. c. 4. of Recoveries If a Common Recovery had been to Uses of Lordships and Mannors before the Statute of the 27 H. 8. the Recoverors had no remedy to make the Tenants Attorn for a quid Juris clamat would not lye upon a Recovery before the Statute of 27 H. 8. which did give remedy 48 1. If a man have a Benefice with Cure 21 H. 8. c. Dispensations whatever the value be and is admitted and instituted into another Benefice with Cure Postea 15. of what value soever having no Qualification or Dispensation the first is ipso facto void and the Patron may present another 131 2. But if the Patron will not present then if under value no Lapse shall incurr until Deprivation of the first Benefice and notice Postea 22. but if of the value of Eight pounds the Patron at his peril must present within the six Months 131 25 H. 8. cap. 21. of Dispensations 1. The Pope could formerly and the Arch-bishop now can sufficiently dispense for a plurality by this Statute Ante. 14. 20 2. A Rector of a Church dispensed with according to this Statute before he is consecrated Bishop remains Rector as before after Consecration 24 25 H. 8. c. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. 32 H. 8. c. 38. of Marriages 1. Neither by this Act or 28 H. 8. cap. 7. no Marriage prohibited before either by Gods Law or the Canon Law differenced from it is made lawful 216 325 2. That the Marriages particularly declared to be against Gods Law cannot be dispensed with but other Marriages not particularly declared to be against Gods Law are left Statu quo prius as to the Dispensations 216 325 3. That neither of these Acts gave Jurisdiction to the Temporal Courts concerning Marriages more than they had before but were Acts directory only to the Ecclesiastical proceedings in matters of Marriage 216 4. Neither of these Acts declare That the Degrees rehearsed in the said Acts thereby declared to be prohibited by Gods Law are all the Degrees of Marriage prohibited by Gods Law ibid. 5. The Levitical Degrees quatenus such are set forth by no Act of Parliament but Marriages which fall within some of those Degrees are said to be Marriages within the Degrees prohibited by Gods Law by 28 H. 8. c. 7. and 28 H. 8. c. 16. 319 6. The 32 H. 8. c. 38. prohibits the impeaching of Marriages only which are absolutely within the Levitical Degrees leaving all other to Spiritual Jurisdiction as before that Act 320 7. A Marriage with the Grandfathers brothers wife by the mothers side is a lawful Marriage by the 32 H. 8. c. 38. 206 207 8. The marriage of the Husband with the Wives sister or the Wives sisters daughter is prohibited within the Levitical Degrees 322 323 9. The 28 H. 8. cap. 16. makes invalid all Licenses Dispensations Bulls and other Instruments purchased from Rome 217 10. This Statute of 25 H. 8. is Repealed by the 28 H. 8 but not for the matter of Marriages there prohibited 215 11. The Statute of 1 2 Phil. Mar. doth not Repeal the 28 H. 8. cap. 7. entirely but only one Clause of it 324 327 12. Some parts of 32 H. 8. c. 38. are Repealed 218 1. 26 H. 8. Concerning Wales By this Statute power was given to the Kings President and Council in the Marchers of Wales Ante 7 9. Postea 18. in several Causes as to Indict Outlaw Proceed against Traytors Clippers of Mony Murtherers and other Felons within the Lordships Marchers of Wales to be indicted in the adjoyning County But this did not extend to the Principality of Wales 413 27 H. 8. concerning Wales 1. The alteration which was made by this Statute as to Wales 414 415 2. To what Counties the Lordships Marchers of Wales are now annext by this Statute Ante 7 9 18. 415 27 H. 8. of Uses 1. A Use cannot arise where there is not a sufficient Estate in possession 49 2. This Statute is properly to give the possession to him who had not the possession but the use only viz. the possession which he wanted before to the use which he had before in such manner as he hath the use 42 3. It was never the intent of the Statute to give the possession to fictitious Conuzees in order to a form of Conveyance but the Statute brings the new uses raised out of a feigned possession in the Conuzee to the real possession which operates according to their intent to change their Estate 42 4. If an Estate for life had been granted to the use of a man and his Heirs an Estate in Fee could not rise out of it by this Statute 49 5. The principal use of this Statute especially upon Fines levied is not to bring together a possession and a use but to introduce a general form of Conveyance by which the Conuzors in the Fine may execute their purposes at pleasure by transferring to Strangers enlarging or diminishing their Estates without observing the strictness of Law for the possession of the Conuzee 50 6. The Conuzee of a Rent granted by Fine to uses cannot have any actual seisin or be in possession of such Rent since this Statute 49 7. A. makes a Feoffment with Warranty to the use of himself for life Remainder to his wife for life Remainder to the use of his right Heirs when by this Statute the possession is brought to these uses the Warranty made by A. to the Feoffees and their Heirs is wholly destroyed 389 1. 32 H. 8. c. 32. concerning Executors This Statute gives Remedy for recovery of such Debts by Executors as were due to the Testator and for which there was no remedy before viz. the Tenants did retain in their hands arrearages of Rents whereby the Executors could not pay the Testators Debts 48 7 E. 6. cap. 5. selling of Wines 1. This Statute never intended that no Wine should be sold nor that it should be with great restraint sold but every man might not sell it And since it restrains not the Kings power to license the selling of Wine it is clear the King may license as if the Act had absolutely prohibited the selling of Wine and left it
to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would
impleaded he might rebut though he could not vouch 386 17. Tenant in possession setting forth how the warranty extends to him needs not set forth by what Estate or Title he is in possession 387 18. A warranty may be extinguished several ways by Release by Defeazance by Attainder by Re-feoffment of the Warrantor or his Heirs 387 And where the Estate to which it is annexed is determined 389 19. If the warranty be destroyed the Rebutter which is the incident to it is likewise destroyed 387 392 20. Feoffees are seised to the use of A. for his life afterwards to the use of his wife for her life and after to the use of the right heirs of A and when by the Statute of Uses the possession is brought to these Uses the warranty by A. to the Feoffees and their heirs is wholly destroy'd 389 21. But if it had been made to them and their Assignees it were more colourable than to them and their Heirs only 390 22. Where the warranty cannot attach the Ancestor it shall never attach the Heir ibid. 23. Where a warranty is made to a man and his heirs his Assignee can take no advantage of it ibid. 24. The Warranty being an incident to the Estate warranted shall accompany it where the Law disposeth the Estate and Lands warranted to all intents 392 25. Such persons who come to the Estate dispositione legis are not properly in the post ibid. 26. There are some persons who may rebutt and perhaps vouch who are neither Heirs nor formally Assignees but have the Estate warranted dispositione legis as Tenant pur le Curtesie Tenant in Dower c. 390 391 392 Wife See Baron Feme Will See Devise  Witnesses 1. A Witness swears but to what he hath seen or heard generally or more largely to what hath fallen under his Senses 142 Writ See Abatement of Writs 1. Brevia Mandatoria Non Remedialia are Writs that concern not the Rights or Properties of the Subject but the Government and Superintendency of the King 401 2. No person shall have a Writ to the Bishop except his Title appears plainly 60 3. In a Quare Impedit the Plaintiff and Defendant are both Actors and may each of them have a Writ to the Bishop 6 7 4. In a Quare Impedit if all the Defendants plead Ne disturba pas the Plaintiff may pray a Writ to the Bishop or maintain the disturbance for damages 58 5. A Writ to the Bishop Non obstante Reclamatione 6 6. Judges ought not ex Officio to abate Writs 95 Wreck See Title Statutes 25. 1. By the Common Law all wreckt Goods were the Kings and therefore are not chargeable with any Custome 164 2. Wrecks are such Goods as are cast on Land and have no other owner or proprietor but who the Law makes viz. the King or Lord of the Mannor but they have not an absolute property until after a year and a day 168 3. Goods which are wreck are not liable to pay any Custome by 12 Car. 2. nor any other Law 165 166 171 172 4. A man may have wreck by prescription 164 5. Goods derelicted may be wreck 168 FINIS ERRATA Page 10. in marg r. 269. p. 45. l. 21. r. Case p. 107. l. 3. r. March p. 157. in marg r. Magna Chart. p. 161. l. 35. r. resolved ibid. l. 35. r. searches p. 183. in marg r. 89. p. 208. l. 23. r. knowledge l. 36. r. 23. p. 210. l. 22. r. fourth p. 337. l. 11. r. poyar p. 359. l. penult r. by the. p. 383. l. 12. r. Croke p. 390. l. 38. r. Institutione p. 410. l. 26. r. unque p. 420. l. 3. r. of A TABLE of the Names of the Principal CASES contained in this BOOK B. BEdle vers Constable 177 Bole alii vers Horton 360 Bushels Case 135 C. CRawe vers Ramsey 274 Crawley vers Swindley alios 173 D. DIxon vers Harrison 36 E. EDes vers the Bishop of Exon 18 Edgcombe vers Dee 89 G. GArdner vers Sheldon 259 H. HAyes vers Bickerstaff 118 Harrison vers Dr. Burrell 206 Hill vers Good 302 Holden vers Smallbrook 187 K. THe King vers Bishop of Worcester 53 N. SIr Henry North vers Coe 251 P. PRice vers Braham alios 106 R. ROwe vers Huntington 66 S. SHephard vers Gosnold alios 159 Shute vers Higden 129 Stiles vers Coxe alios 111 T. SIr John Tufton vers Sir Richard Temple 1 Tristram vers Viscountess Baltinglasse 28 Thomas vers Sorrell 330 W. COncerning Process out of the Courts of Westminster into Wales 395