a man and a woman and their heires before mariage the husband and wife have moities betwéen them Lands given to Batre and feme but if it be after mariage each of them taketh the whole And therefore in this last case if the husband be attainted of Treason or selleth away the land after her husbands death she shall recover the whole as it fell out in the case of William Ocle who was attainted for murthering E. 2. Finch 41. Co. ibid. 209. b. 2. 18 E. 4 18. 19 H. 6. 54. 20 E. 3. account Pl. 70. 8 In a Mortgage the agréement precedent ought to guide the payment subsequent and therefore in case the feoffée die The conditio◠of a mortgage must be performed and it is agréed betwéen the feoffor and the executors of the feoffée that at the day and place the whole sum shall be paid and that afterwards some part thereof shall be restored this is no performance of the Condition for hereby the state shall not be devested out of the heire which is a third person without a true and effectual payment and not by a shadow and colour of payment Co. l. 5. 96. Goodales case Co. ibid. 248. b. 1. Littl. § 410. Pl. Co. Dame Hales case 6 E. 3. 41. c. 9 Littleton saith that a descent Descent by entry into Religion which happens upon the disseisors entring into Religion shall not take away the entry of the heire yet his entry into Religion is not the cause of the descent but his profession for albeit he enter into Religion yet before he be profest no descent can happen But in this case the Law doth respect the original act and that is his entry into Religion which was his own act and whereupon the profession followed by which profession the descent hapned for Cujusque rei potissima pars principium est And againe Origo rei inspici debet and therefore Littleton attributeth the cause of the discent rather to the deisseisors entring into Religion which was the first act to procure a descent than to his profession which followed thereupon Co. ibid. 372. b. 3. T. 23 El. in the Court of Wards 10 To prevent the barring of an estate taile An entail and the reversion in the King when the reversion is in the King according to the Stat. of 34 H. 8. 20. it is necessary that the estate tail should be created by a King and not by any Subject albeit the King be his heire to the reversion And therefore if the Duke of Lancaster had made a gift in taile and the reversion descended to the King yet was not that estate restreined by that Statute and so of the like Co. l. 5. 15 16. in Wisemans case Vide 21. 8. 33 Ass Pl. 7. 11 If a servant departed out of his Masters service kill his Master upon a malice that he bare him whilest he was his servant Malice prepence it is petty Treason Finch 10. 10 El. Dyer 266. b. 12 A erects a Shop upon the Kings Fréehold No possession against the King the King grants the land to B. in fée A. before entry or seisure of the Shop by the Kings Patentée continueth the possession and dieth seised This is no descent to toll the Patentées entry For by his first erecting of the Shop he could gaine nothing against the King Finch 11. Co. lib. 2. 93. a. 3. Binghams case 6. E. 3. 410. 13 It was said in Binghams case in the 2 Report The original act considerable that when divers accidents are requisite to the consummation of a thing the Law in many cases respects rather the beginning and original cause then any thing else As in 6 E. 3. 41. if a man present to another mans Church in the time of warre and thereupon the presentée is admitted instituted and inducted in time of peace Here the Law gives such regard to the original act viz. the presentation that all which followes thereupon although it be done in time of peace Co. l. 1. 106. Shelleyes case shall be avoided And upon the same reason was Shelleys case adjudged in the 1 Report fol. 106. Grant by baron without feme not good 14 If land be given to Baron and Feme Co. l. 3. 5. b. 3. Owen and Morgans case Co. l. 3. 34. b. 4. Butler and Bakers case and to the heires of their two bodies engendred and the Baron alone suffers a common recovery this shall not bind the estate taile And albeit in this case the Baron which suffers the recovery survives the Feme that is not material for the Law shall adjudge upon the case as it was at the time of the recovery Tenure according to limitation 15 If Land be given to a man and his heires to hold by Soccage during his life and after his decease to hold by Knight-service Littl. § 698 699 700. Here shall be no ward because the tenure by Knight-service begins in the sonne and the Father during his life holds by Soccage And è converso if lands be given to a man and his heires to hold by Knight-service during life and after his decease in Soccage Here likewise shall be no ward because immediately upon the death of the tenant the Knight-service determines and then also the tenure in Soccage begins in the sonne Warranty that begins by disseisor not good 16 If the sonne purchaseth land Co. l. 4 37. a. Tirringhams Case and letteth the same to his father for terme of yeares the father enfeoffes another in fée and binds himselfe and his heires to warranty the Father dies by which the warranty descends to the sonne this warranty shall not barre the sonne from his entry or recovery by assise c. because this warranty begins by disseisin In like manner is it if the father or any other Ancestor be tenant at will by Elegit by Stature Merchant or Statute Staple and make feofment with warranty as aforesaid c. Such warranty shall not barre because it begins by disseisin c. There is the same reason of Guardian in Knight-serice or in Soccage which make such feofment with warranty So also if the father and sonne be Ioyn-tenants in fée and the father make feofment with warranty c. and dies this shall not barre the sonne of his moity causa quae suprà Common appendant due of common right 17 The beginning of common appendant by the ancient Law was in this manner 37 H. 9 34. per totam curiam 29 H. 8. 4. when the Lord of a Mannor did enfeoffe a man of arable land to hold of him in Soccage viz. per servitiam Socae as every such tenure at the beginning as Littleton saith was the feoffée ad manutenendum servitium Socae was to have Common in the Lords wastes for such necessary beasts as were to plow and compasse his land and therefore such Common appendant is
is to be bound by it And yet if the Father be Tenant for life the remainder to the same in fee the father by covin and consent maketh a lease for years to the end that the Lessee shall make a feoffment in fee to whom the father shall release with warranty and all this is executed accordingly the father dieth Here this warranty shall not binde albeit the Disseisin was not done immediately to the son for the feoffment of the Lessee is a disseisin to the father who is particeps criminis So it is if one brother make a gift in taile to another and the Vncle disseise the Donee and enfeoffeth another with warranty the Vncle dieth and the warranty descendeth upon the Donor and then the Donee dieth without issue Here albeit the Disseisin was done to the Donee and not to the Donor yet the warranty shall not binde the Donor So likewise if the father the son and a third person be Ioyntenants in fee the father maketh a feoffment in fee of the whole with warranty and dieth the son dieth the third person shall not onely avoid the feoffment for his own part but also for the part of the son and he shall also take advantage that in this case the warranty commenced by disseisin though the disseisin was done to another c. Co. l. 5. 79. b. Fitzherberts case Co. ibid. 372. a. 4. 23 By the Statute of the 32 H. 8. cap. 36. Fine barres aâ— entail in reversion a fine with proclamations according to the Statute of 4 H. 7. cap. 24. shall barre the estate taile but not him in the reversion or remainder if he maketh his claime and pursue his action within five years after the estate taile spent c. Howbeit if a gift be made to the eldest son and to the heires of his body the remainder to the father and to the heires of his body the father dieth the eldest son levieth a fine with proclamations c. and dieth without issue this shall bar the second son for the remainder descended to the eldest and therefore what the father might have done by force of a fine the eldest son shall in this case also do c. Co. lib. 3. 84. The case of Fines Dalison 2 El. 7 Eliz. 24 If the Lessor enter for the condition broken Debt for rent after surrender c. or if the Lessee surrender unto the Lessor Here the estate and terme is determined and yet the Lessor shall have an action of debt for the arrearages due before the condition broken or the surrender made as appears in Fitz. N. B. 120. 122. 30 E. 3. 7. 6 H. 7. 3. b. contrary to the booke of 32 E. 3. tit Barre 262. which is not Law and this is in respect of the contract betwixt the Lessor and the Lessee Co. lib. 3. 23. b. 4. Walkers case 25 A man may prescribe in a Water-course leading to his Grist-mill Prescription 〈◊〉 a Waterhouse albeit it was of late time changed from a Fulling-mill to a Grist-mil Et vice versa because that alteration is not of the substance of the prescription but the Mill may be so described to shew the nature and quality of it and doubtlesse at first he might prescribe in the Water-course before any Mill was built Co. l. 4. 87. a. 1. Luttrels case Co. ibid. 26 If a man have Estovers either by grant or prescription belonging to his house Prescription 〈◊〉 Estovers c. although he alter and change the rooms and chambers of the house as to make the Hall to be the Parlour and the Parlour to be the Hall and such like alteration of the quality of the house and not of the house it selfe and without making any new Chimneys whereby the owner of the wood may suffer prejudice or albeit he make new Chimneys or an addition to the house yet spend none of the Estovers in thâ—se new Chimneys or in the part newly added doth in none of these cases destroy the ancient prescription for then many prescriptions would be destroyed There is the same law of Conduits Water-pipes and the like Also if a man have an ancient window in his Hall and after he convert his Hall to a Parlour or any other use yet his neighbour cannot stop it for he can prescribe to have a light in such a part of his house â— corporation â—ranslated enâ—oyes the ancient priviledges 27 If a Corporation hath Franchises and Priviledges by grant or prescription and after they are incorporate by another name Co. ibid. b. 1. as if they were Bailiffs and Burgesses before now they are Major and Cominalty or Prior and Covent before and after they are translated to a Deane and Chapter c. Although in these cases the quality and name of their Corporation is changed and especially in the case of the Prior and Covent for of Regular which are dead persons in the Law they are made Secular yet the new Corporation shall enjoy all the Franchises Priviledges and Hereditaments which the old Corporation had be it by grant or prescription for no man can be prejudiced by it c. A stranger â—ound by a cuâ—tome 28 In debt against an Administrator upon an Obligation Co. l. 5. 83. a. Snellings case the Defendant pleads that the custome of London is that the Administrator shall be bound to pay a debt upon a simple contract as upon an Obligation c. and that he had already payd I. S. c. And in this case it was adjudged that the Plaintiff being a stranger was as well bound by that custome as if he had béen a Citizen Vide 1 E. 4. 6. accord Presentation â—o an Advowâ—on 29 Winsor Plaintiff hath an Advowson of two parts Co. l. 5 102. Winsors case the Defendant of the third the Plaintiff presents one the Incumbent dies then in the time of E. 6. he presents one Parry who in the time of Quéen Mary was deprived quia conjugatus c. whereupon the Defendant presents his Clerke who 1 Eliz. was also deprived by Juell and other High Commissioners and the first sentence adjudged void and Parry restored the Clerk of the Defendant dies Parry also dies the Defendant presents because his Clerk was deprived whereupon the Plaintiff demurres And in this Quare Impedit judgment was given against the Plaintiff for albeit the Clerk of the Defendant was Parson for the time to all purposes and during the first deprivation Parry was not Incumbent yet when the second sentence came then was Parry incumbent againe by force of the first presentation institution and induction and there néeded no new institution c. And by force of the second sentence the Presentée of the Defendant was removed and Parry restored And therefore when Parry dyed which was the last Presentée of the Plaintiff the Defendant shall present as in his turn and by force of the second sentence Parry was
house against her by default so that the woman may have against him a Quod ei deforceat according to the Statute of Westm the second by this the reversion of the Lessor is discontinued so that he cannot have any action of Waste either against the woman because she hath not possession of the house nor against the recoverer by feigned title for that there is no privity betwéen the Lessor and him but in this case if the Feme take Baron and the recoverer lets the house to the Baron and Feme Here the Feme is in her remitter by force of the first lease and then if the Baron and Feme make waste the first Lessor shall have against them a writ of waste because in as much as the Feme is in her remitter the Reversioner is also remitted to his reversion and so by consequent the privity and power of bringing a writ of Waste is re-continued For when the reversion is devested the Lessor cannot have an action of Waste because the writ is that the Lessée did waste ad exhaeredationem of the Lessor and that inheritance must continue at the time of the action brought It is likewise to be observed that in an action of waste brought by the Lessor against the Lessée the Lessee in respect of the privity cannot plead generally Riens en le reversion That the Lessor hath nothing in the reversion but he must shew how and by what means the reversion is devested out of him but if the Grantee of a reversion bringeth an action of waste the Lessee may plead generally that the Lessor hath nothing in the reversion because in that case there wants privity c. 〈◊〉 l. § 698. 〈◊〉 â—ib 366. b. 3. 76 Regularly a warranty that commenceth by disseisin is Warranty commecing 〈◊〉 disseisin 〈◊〉 not when the disseisin is done immediately to the heire that is to be bound Yet 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 dieth this warranty shall not bind albeit the disseisin was not done immediately to the son for the feoffment of the Lessee is a disseisin to the father who is particeps Criminis Neverthelesse by reason of the privity between the father and his Lessee that which is done by the Lessee is conceived done by the father for that they are not onely privies in estate but likewise in this case privies in combination So if father and son and a third person be Ioyntenants in fee the father maketh a feoffment in fee of the whole with warranty and dieth the son dieth the third person shall not onely avoid the feoffment for his own part but also for the part of the son and he shall take advantage that the warranty commenced by disseisin albeit the disseisin was done to another because all the three joyntenants were also privies in estate c. So it is also if one brother make a gift in tail to another brother and the Vncle disseise the Donee and enfeoffeth another with warranty the Vncle dieth and the warranty descendeth upon the Donor and then the Donee dieth without issue Here albeit the disseisin was done to the Donee and not to the Donor yet the warranty shall not bind him for what was done in this case to the Donee ought to be adjudged done to the Donor because all these were privies in bloud c. â—â—rticular eâ—â—â—te and reâ—ainder one â—tate 77 If there be Tenant for life Co. ib. 369. b. 2. the remainder in fee by lawful and just title he in the remainder may obtain and get the pretenced right or title of any stranger and shall not thereby incurre the penalties of the Statute of the 32 H. 8. cap. 9. made against buying such titles because the particular estate and the remainder are in Law accompted as one estate in respect of the privity that is found between them â—ontra formam â—llationis 78 No man shall have a writ of Contra formam collationis Co. ib. 384. b. 1. but onely the Feoffor and his heirs who are privy to the deed and privies in bloud F. N. B. 211. c. â—ssignee may â—ouch 79 If a man enfeoff A. and B. to have and to hold to them and their heirs with a clause of warranty Co. ib. 384. b. 3. Praedictis A. B. eorum haeredibus assignatis In this case if A. dieth and B. surviveth and dieth and the heir of B. enfeoffeth C. he shall vouch as Assignee and yet he is but the Assignee of the heire of one of them for in judgement of Law and in respect of the privity the Assignee of the heir is the Assignee of the Ancestor and so the Assignee of the Assignee shall vouch in infinitum within these words his Assignes 80 If a man enfeoffeth A. to hold to him his heirs and Assignes Co. ib. 3 84. b. 4. A. enfeoffeth B. and his heirs The like B. dieth Here the heir of B. shall vouch as Assignée to A. to his heirs of Assignes and Assignes of Assignes and assignes of heirs in respect of the privity are comprehended within these words his Assignes which séemed to be a question in Bractons time And the Assignée shall not onely vouch but also have a Warrantia cartae Land warranted without the word heirs 81 If a man doth warrant land to another without this word Heires his heirs shall not vouch And regularly Co. ibid. if a man warrant land to a man and his heirs without naming Assignes his Assignée shall not vouch But if the father be enfeoffed with warranty to him and his heirs the father enfeoffeth the eldest son with warranty and dieth Here in respect of the privity the Law giveth to the son advantage of the warranty made to the father and the rather because by act in Law the warranty betwixt the father and the son is extinct Voucher Rebutter 82 If a man at this day be enfeoffed with warranty to him Co. ib. 385. a. 3. his heirs and assignes and he make a gift in tail the remainder in fée and the Donée makes a feoffment in fée Here that Feoffée shall not vouch as Assignée because no man shall vouch as Assignée but he that cometh in in privity of estate but he must vouch his Feoffor and that Feoffor shall vouch as Assignée Howbeit such an Assignée may rebutt Rebutter without privity 83 If a warranty be made to a man and his heirs without this word Assignes he grants over the land to another in fée Co. ibid. his Assignée shall not vouch but the Assignée or any other Tenant of the land may rebutt And albeit no man shall vouch or have a Warrantia cartae either as
Assurance in the Countrey and to be maiâ—tained for the common good and quiet of the Realm And upon the Feoffment the Fréehold which is so much estéemed in Law doth passe by open livery to the Feoffée but by the release a bare right onely 3 Vide suprà M. 94. Pl. 25. M. â—o Pl. 8. Dier 51. b. 17 33 H. 8. 4 Tenant in tail before the Statute of 27 H. 8. Lease good against Issue iâ— tail of Vses makes a Feoffment in Fée to the use of himself and his heirâ— and after he and his Feoffées make a lease for years rendring rent and after the Statute is made the tenant in tail dies seised and his issue aliens the land by fine before any entry made upon the Termor or any receit of the rent and the alienée accepts he rent In this Case the Alienée shall never avoid the lease whether he accepted the rent or no for the lease was not méerly void by the death of the tenant in tail without actual entry made by the issue but it had béen otherwise of a rent granted out of the land by the Tenant in tail and his Feoffées So likewise in Littletons Case of a Feoffment by tenant in tail to his eldest son within age and when he comes to full age he make a Leasts for years and after the father dies so as the son is remitted yet hâ— shall not avoid his lease as he might have done a rent issuing out of the land Co. Inst p. 1. 332. a. 4. 5 If there be tenant for life the remainder in tail Discontinuance and he in the remainder grants it to another in fée by Déed and the tenant for life attorns this is no discondinuance of the remainder in tail so it is likewise of a Rent-charge Advowson in grosse Common in grosse or the like for the Rule is that a Grant by Déed of such things as do lie in Grant and not in livery of Seisin do work no discontinuance Co. ib. 332. b. 1 6 If tenant in tail of a rent service c. Discontinuance or of a Reversion or Remainder in tail c. grant the same in Fée with warranty and he oweth Assets in Fée simple and dieth This is neither bar nor discontinuance to the issue intail but he may distrain for the rent or service or enter into the land after the decease of the tenant for life But if the issue bringeth a Formedon in descender and admit himself out of possession then he shall be barred by the warranty and Assets It is otherwise 〈◊〉 tenant in tail in possession maketh a Feoffment with livery of Seisin for that worketh a discontinuance And yet if tenant in tail of a rent disseise the tenant of the land and make a Feoffment in Fée with warranty and dieth This is no discontinuance of the rent but the issue may distrain for the same And albeit the warranty exâ—â—â—â— to the rent yet by the Rule of Littleton § 618. it lieth not in discontinuance And where the thing doth lie in livery as lands and tenements yet if to the Conveyance of the Fréehold and Inheritance no livery of Seisin is requisite it worketh no discontinuance as if tenant in tail exchange lands c. or if the King being tenant in tail grant by his Letters Patents the lands in Fée there is no discontinuance wrought Also it is regularly true of a thing that lieth in grant that although it be granted by fine yet it worketh no discontinuance Howbeit it tenant in tail make a lease for yeares of lands and after levy a Fine this is a discontinuance for a Fine is a Feoffment of Record and in such Case the Fréehold passeth But if tenant in tail maketh a lease for his own life and after levy a Fine this is no discontinuance because the Reversion expectant upon a State of Fréehold which lieth onely in grant passeth thereby 97 A matter in the right more then a matter in possession Fore-judger â—f Mesne 1 If the tenant be disseised and the Disseisor in a writ of Mesne Co. Inst p. 1. 100. b. 1. fore-judge the Mesne this shall not binde the Disseisée And so if the Mesne be disseised and a fore-judgment is had against the Disseisor this doth not binde the Disseisée for the words of the Statute of West 2. cap. 9. are Quando tenens sine praejudicio alterius quam medii attornare se potest capitali Domino c. â—â—scription â—â—stome 2 A title once gained by prescripcion or custome Co. ib. 114. b. 2 cannot be lost by interruption of the possession for ten or twenty years but by interruption in the right it may be lost as if a man have had a rent or Common by prescription unity of possession of as high and perdurable estate is an interruption in the right â— Writ of â—â—sne 3 In a writ of Mesne the Plaintiffe made his title by prescription Co. ibid. that the Defendant and his Ancestors had acquitted the Plaintiff and his Ancestors and the Terre-tenant time out of minde c. the Defendant took Issue that the Defendant and his Ancestors had not acquitted the Plaintiff and his Ancestors and the Terre-tenant and the Iury gave a special Verdict that the Grandfather of the Plaintiff was enfeoffed by one Agnes and that Agnes and her Ancestors was acquitted by the Ancestors of the Defendant time out of minde before that time since which time no acquital had béen and it was adjudged and afterwards affirmed in a writ of Error that the Plaintiff should recover his acquital for that there was once a title by prescription vested which cannot be taken away by a wrongful cesser to acquite of late time And albeit the Verdict had found against the letter of the Issue yet for that the substance of the Issue was found viz. a sufficient title by prescription it was adjudged both in Banco M. 4â— 44. El. in a Prohibition betwixt Nowel and â—icks in B. R. and afterwards in a writ of Error in B. R. â—â—las deciâ—â—di for the Plaintiff So a modus decimandi was alledged by prescription time out of minde for tithes of lambs and thereupon issue joyned and the Iury found that before 20 years then last past there was such a prescription and that for these 20 years he had paid tithe-lamb in specie and it was objected first that the Issue was found against the Plaintiff for that the prescription was general for all the time of prescription and 20 years did fail thereof Secondly that the party by payment of tithes in specie had waved the prescription or custome But it was adjudged for the Plaintiffe in the prohibition for albeit the modus decimandi had not béen paid by the space of 20 years yet the prescription being found the substance of the Issue is found for the Plaintiff Common And if a man hath a Common by prescription
esse for the other part for if there be Lord and Tenant of 40 acres of Land by fealty and 20 s. Rent if the Tenant make a Gift in tail or a lease for life or years of partel thereof to the Lord in this Case the Rent shall not be appoâ—tioned for any part but the Rent shall be suspended for the whole So it is also if the Lessor enter upon the Lessée for life or yeares into part and thereof disseise or put out the Lessée here the Rent is suspended in the whole and shall not be apportioned for any part and where outs Books speake of an apportionment in Case where the Lessor enters upon the Lessée in part they are to be understood where the Lessor enters lawfully as upon a surrender forfeiture or the like where the Rent is lawfully extinct in part yet by act in Law a Rent-service may be suspended in part and in esse for part as when the Guardian in Chivalry entreth into the land of his ward within age now is the Seigniory suspended but in this Case if the wife of the Tenant be endowed of a third part of the tenancy she shall pay to the Lord a third part of the tent so it is also where the Tenant gives a part of the tenancy to the father of the Lord in tail the father dieth and this descends to the Lord in this Case also by Act in Law the Seigniory is suspended in part and in esse for part And the same Law is of a Rent-charge which also cannot be apportioned but by Act in Law for if a man hath a rent-charge to him and his heirs issuing out of lands and he purchase part thereof Litt. § 222 224. in this Case the whole rent is extinct but if a man hath a Rent-charge and his father purchase part of the land out of which it issues in fée and die and that parcel descends to the son that hath the rent-charge in that Case the rent-charge shall be apportioned according to the value of the land 〈◊〉 charge 〈◊〉 because the part of land purchased by the father comes not to the son by his own Act but by descent and course of Law Co. ib. 149. b. 4 So also if the Tenant give the father of the grantée part of the land in tail and this descends to the grantée the rent shall be apportioned and so by act in Law a rent-charge may be suspended for one part and in esse for another or vice versa if the father vs grantée of a rent and the son purchase part of the land charged and the father dieth after whose death the rent descends to the son here also the rent shall be apportioned causa quà suprà â—â—nt-charge â—pationed 15 If the father within age purchase part of the Land charged Co. ib. 150. a. 2 and alieneth within age and dieth the son recovereth in a writ of dum flrit infra aetatem or entreth in this Case the Act of Law is mixt with the Act of the party and yet the rent shall be apportioned for after the recovery or entry the son hath the land by descent so it is also where the son recovereth part of the land upon an alienation by his father dum non fuit compos mentis for the cause afore-said 〈◊〉 16 A man seised of lands in fée takes wife Co. ibid. and makes a feofment in fée the feoffée grants a rent-charge of 10 l. out of the Land to the Feoffor and his wife and to the heltes of the husband the husband dieth the wife recovereth the moity for her dower by the custome the Rent-charge shall be apportioned and she shall distraine for five pound which is the moity of the rent and here albeit her owne act doth concurre with the Art in Law yet shall the Rent be apportioned â—d 〈…〉 Tenant 17 If there be Lord Mesne and Tenant Litt. §. 231. Co. ib. 152. and the Tenant holds of the Mesne by 5 s. rent and Mesne holds over of the Lord by 12 d. rent here the Mesne hath 4 s. rent in surplussage Now in this Case if the Lord purchase the tenancy The Mesne shall have the 4 s. yearely as rent secke and yet he shall distraine for it Litt. §. 232. Co. ib. 153. a. 1 vide infrà 40. for séeing the fealty is extinct the Law reserves the distresse to the Rent and the distresse in such Case shall by act in Law vs preserved Quia quando let aliquid a licui concedit concedere videtur id sicut quo res ipsa esse non potest And therefore if a man make a lease for life reserving a rent and bind himselfe in a Statute whereupon the Rent is extended and delivered to the Conusée here the Conusée shall distraine for the Rent because he cometh to it by course of law but if a rent-service be made a rent-seck by the grant of the lord the grantée shall not distrain for it for that the distresse in that case remaines with the fealty So likewise if there be Lord Mesne and Tenant and the mesnalty is a Mannor having divers frée-holders and the Lord purchase one of the Tenancies and there is a Rent by surplussage this rent although it be changed into another nature is parcel of the Mannor yet by purchase of part of the land the whole Rent is extinct albeit the Law did preserve it Co. ib. 163. b. 4 18 There is a diversity betwéen a discent Discent and purchase which is an Act of the Law and a purchase which is an Act of the party for if a man be seised of lands in Fée having Issue two Daughters and one of the Daughters is attainted of felony the Father dieth both Daughters being alive the one moity shall discend to the one daughter and the other moity shall escheate But if a man make a Lease for life the remainder to the right heires of A. being dead who left issue two Daughters whereof the one is attainted of felony In this Case some have said that the remainder is not good for the moity but void for the whole because both the Daughters should have béen as Littleton saith but one heire Co. ib. 164. b. 3 19 A Rent-charge is intire and against Common right Rent-chargâ— dividable and yet it may be divided betwéen coperceners and by Act in law the Tenant of the land is subject to several distresses and in that Case also partition may be made before seisin of the Rent Co. ib. 165. a. 4 20 If there be two Coperceners of lands with warranty Coperceners and they make partition in this case the warranty shall remaine because they are compellable by law to make partition it is otherwise of join-tenants for they were not by the Common law compellable to make partition Co. Ib. 166. b. 3 21 When partition is made betwixt Coperceners Partition by
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.
Copyhold-lands are within the Statute of 32 H. 8. 9. for the Statute saith If any bargaine buy or sell c. Pretenced titles of Copiholds any right or title in or to any Lands or Tenements c. and Copyholds are Lands in and to which right or title may be had and made and they are included in that act to avoid Suites Maintenance and Champerty and by consequent fraud and deceit per Wray And note that in Partridge and Crokers case in Pl. Co. 76. A Lease for years is adjudged within that Act. Co. l. 5. 14. b. 2. 20. By all Statutes made to prevent and suppresse fraud Fraud The king bound the King is bound albeit he be not especially named because Truth Iustice and Religion are the Supporters of his Crowne and Diadem In the case of Ecclesiasticall persons Co. l. 5. 60 a Gooches case 21. In Debt upon an Obligation against the heire Fraudulent conveyance void the Defendant pleads riens per descent the plaintiff maintaines assets in Com. S. the Defendant saith that before the action commenced he had enfeoffed A. of those lands against which the Plaintiff alleadged and proved that the feoffment was by fraud unto which it was urged that the fraud ought to have been specially pleaded and could not be brought in evidence but it was adjudged per totam Curiam that it might be given in evidence and needed not to be specially pleaded 1. because the Statute of 13. Eliz. 5. provides generally that the estate as to the creditor shall be void and Acts of Parliament made for prevention and Suppression of fraud ought to have a benigne interpretation 2. If that matter ought to be pleaded it would prove mischievous to Creditors and would tend much to the mainteinance and increase of fraud and covin for fraud and covin because they are odious are so privily hatched in an hollow tree in arbore cava opaca and so artificially contrived and concealed that the partie grieved hath no meanes to find or know them and then to force the Plaintiff who is a stranger to it to plead the feoffment whereof he hath no notice and that it was done by fraud c. would be mischievous and against Law and reason and thereupon Iudgment was given for the Plaintiff Co. ibid b. 22. A. seised of land in fee makes a fraudulent conveyance to the intent to deceive and defraud purchasers contrarie to the stat of 27. The like Eliz. 4. continues in possession and is reputed as owner B. enters into communication with A. for the purchase thereof and by accident B. hath notice and intelligence of the fraudulent conveyance and notwithstanding that concludes with A. and takes his assuranre from him In this case B. shall avoyde the said fraudulent conveyance by the said Act notwithstanding such notice for the Act hath by expresse words made the fraudulent conveyance void as to the purchasor and in as much as it is within the expresse purview of that Statute it ought to be so taken and expounded in suppression of fraud per Wray but see the like case agreed and resolved per totam Curiam P. 3. Jac. in the case of one Standen Co. l. 5. 69 b. 4. in Burtons case 23. If A. lend 100 l. to B. upon the first of July 1653 and B. Usury grants to A. 20 l. per annum out of the Mannor of D. to begin to be paid at Christmas twelve Moneths after upon Condition if B. pay 100. pounds to A. the first of July 1654. that then the Annuity shall ceâ—se This is not within the Statute of usury but if it had been agreed betwixt them that notwithstanding such power of redemption the 100 l. should not be paid the first of July 1654. and the clause of redemption was inserted on purpose to evade the Statute that had been an usuriâ—us bargain and contract within the Statute Usury 24. A. lends B. 100 l. to pay 20 l. for the Loan of it for one yeare Co. ibid. per Popham if the Son of A. shall be then living this is Vsury within the Statute for if this shall be out of the Statute by reason of the uncertainty of the life the Statute will be of little effect because by the same reason that hee may add one life he may adde more and so he may evade the statute at pleasure that Liberty being like a Mathematicall line viz. Divisibilias in indivisibilia False deed 25. If a Deed be pleaded and shewed in Court and denyed Co. ib. 74. b. 4. in Wymarkes case then it shall alwaies remaine in Court to the end that if it be found not his Deed it should be damned for the falsity thereof Fraudulent conveyances 26. The statute of 11 H. 8. 5. Co. ibid. 77. a. 4. in Boothes case being made to suppresse Fraud and Deceit shall be taken and interpreted beneficially And therefore whereas the words of that Act are that where Tenant for life or yeares have demised or granted to the intent that those in Reversion viz. their Lessors their Heires or Assignes should not know their names and afterwards the first Tenants continually occupy the Lands c. and make Wast c. It is ordained c. that he in Reversion in such case shall maintain a Writ of Wast against the said Tenants for life or yeares yet every Assignee of the first Lessee mediate or immediate is within the sayd Act albeit not therein mentioned Also he in Remainder is within the Act as well as he in Reversion albeit both in the Preamble and Body of the Act there is only mention made of him in Reversion Profits 27. In Formedon the Tenant pleads non-tenure Co. ibid. b. 2. the Demandant saith that he hath made a Feoffment to persons unknown with purpose to defraud him of his Tenancy and still takes the profits In this case the pernancy of the profits and not the Feoffment is traversable 4 H. 7. 9. Warranty 28. The Father Tenant for life Remainder to the Son Co. l. 5. 80. b. 2 leases for yeares to A. with a designe to bar the Son A. enfeoffs B. to whom the Father releaseth with Warranty and dies In this case the Son is not barred by this Warranty being a Warranty that begins by disseisin for albeit it is said in our bookes and true it is that Warranty is much favoured in Law because it extends to establish him that is the Ter-tenant in possession yet when Warranties are mixt with Covin which is so odious and so much abhorred in Law they loose not only their favour but force also for Covin is like poyson that infects every good thing with which it is mixt c. Feigned arrest 29. The entring of feigned Actions in the Counter Co. l. 6. 54. b. 2. in the Countesse of Rutlands case upon pretence afterwards when the Serjeants have the Prisoner in
made twenty moneths after yet this Warranty begins by Disseisin so the intent maketh the act to enure otherwise then it would do for when covin is mixt with the truth it makes all unsavory So in Wimbish and Talboies case in the Com. Eliz. Talbois joyning by covin with W. Talbois in being taken by nihil dicit he was to lose her estate by force of the Stat. of 11 H. 7. and the Issue in tail might before that Statute falsifie a feined Recovery by covin 38. The 11 H. 7. 20. Pl. Co. 59. b. 1. ibid. and all other Statutes made for the suppressing of fraud shall be extended by equity the words of the Statute of Marlebridge cap. 6 are de his qui primogenitos haeredes suos infra aetatem existentes feoffare solent and yet if the first be dead and he enfeoff his second Son which is his heire that is within the equity of the Statute or if he levy a Fine to him which is matter of Record that is also within the equity of the Statute albeit the Statute speaks of Feoffment And the reason is because covin is alwayes abhorred in our Law and Statutes made for the suppression thereof are made for the publick good and therefore shall be extended by equity In like manner 1 H. 7. cap. 1. which gives a Writ of Formedon in Remainder against the perner of the profits was made for the suppression of covin for a Feoffment made to persons unknown to defraud those that right had Pl. Co. 81. b. 4. in Partridge and Stranges case was great covin and deceit in the Law and therefore a Scire facias to execute a Remainder shall be maintainable against the pernor of the profits as it is adjudged in 14 H. 7. fo 31. And to these Statutes and the like made for the suppression of fraud and covin are alwayes to be extended by equity and to have a favourable interpretation and construction And therefore the Statute of 32 H. 8. cap. 9. shall be also extended by equity Co. l. 5. 80. a. in Fitzharberts case being ordained for the suppression of fraud and covin in buying of pretenced titles so that Leases for years as well as higher estates shall be intended by it Warranty 39. The Father Tenant for life the Remainder to the Son and Heire apparent in tail Leases to A. for years with intent that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly This is a Warranty that commenceth by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin by reason of the practice and covin betwixt the confederates for if the Father had made the Feoffment to B. with Warranty and had dyed this Warranty had barred the Heire c. vide pl. ibid. â—ttaint 40. A false Verdict is a contradiction in it selfe Co Inst parâ— 1. 128. 4. and so odious in the Law that in an Attaint Outlawry in the Plaintiff cannot be pleaded in disability of the person 41. The Statute of 31 Eliz. 6. Hob. 75. to prevent Simonie is to be largely expounded though penall The King against the Bishop of Norwich 158. Jus Fraus numquam Cohabitant Co. l. 10. 45. a. 4. in Jennings his case 1. The Statute of 14 Eliz. cap. 8. Recovery by Tenant in taile doth not extend to preserve any Reversion or Remainder expectant upon an estate taile or where the Tenant for life is impleaded and Tenant in tail is vouched for the title of the Act is For avoiding of Recoveries suffered by collusion by Tenant for life c. but a Recovery cannot be said to be by collusion where Tenant in tail is in the Recovery either Tenant in Fait or Tenant in Law as Vouchee for the Law as an incident to his estate hath made the Land and all Remainders and Reversions subject to his pleasure and he hath right and power to bar them all and Jus Fraus numquam Cohabitant And therefore the title of the Act being For avoyding of Recoveries by collusion c. it cannot extend to a Recovery where Tenant in tail is party or privy Pl. Co. 51. a. 2. in Wimbish and Talboies case 2. When truth is mixed with covin that wicked hearb or covin with truth Truth Covin that conjunction and mixture makes all bitter and unsavory and goodnesse is perverted into wickednesse for they cannot continue together no more then fire and water Dyer 55. 9. 35 H. 8. 3. A Verdict is said to be veri dictum Verdict Error which ought to have truth in it and no semblance of fraud or partiality to either party And therefore if a Iury before their agreement eat or drinke at the charge of either of the parties it is good cause of Error to reverse the Iudgement upon such a Verdict for there cannot be truth in such a Verdict which hath such a badge of fraud and falsehood because such practice implyes partiality and suspition 159. Quando aliquid prohibetur fieri ex directo prohibetur per obliquum Litt. S. 361. Co. Inst pars 1. 223. a. 4. 1. If a Feoffment in fee be made upon Condition A Feoffment upon Condition that the Feoffee shall not alien that the Feoffee shall not enfeoff I. S. or any of his Heires or Issues c. this is good for he doth not restraine the Feoffee of all his power howbeit if he enfeoff I. N. with intent and purpose that he should enfeoff I. S. some held that it is a breach of the Condition So if a Feoffment be made upon Condition that the Feoffee shall not alien in Mortmaine this is good because such alienation is prohibited by Law and regularly whatsoever is prohibited by Law may be prohibited by Condition but in this case if the Feoffee enfeoff I. S. with intent that he shall alien the Land in Mortmaine it seemes to be a breach of the Condition In ancient Deeds of Feoffment in fee there was usually this clause Quod licitum sit donatorio rem datam dare vel vendere cui voluerit exceptis viris religiosis Judaeis Co. ibid. 282. a. 3. 2. In an Action upon the case Innovation prohibited the Plaintiff declared for speaking of slanderous words which is transitory and laid the words to be spoken in London the Defendant pleaded a Concord for speaking of words in all the Counties of England save in London and traversed the speaking of the words in London the Plaintiff in his replication denyed the Concord whereupon the Defendant demurred and Iudgement was given for the Plaintiff for the Court said if the Concord in that case should not be traversed it would follow that by a new and subtile invention of pleading an ancient Principle in Law that for
transitory causes of Action the Plaintiff might alledge the same in what place or County he would should be subverted which ought not to be suffered and therefore the Iudges of both Courts allowed a Traverse upon a Traverse in that case And the wisdome of the Iudges and Sages of the Law have alwayes suppressed new and oblique inventions in derogation of the common Law whereupon it is said by the Iudges in one Book 38 E. 3. 1. we will not change the Law which hath been alwayes used and another saith 2 H. 4. 18. it is better that it be turned to a default then the Law should be changed or any innovation made Warranty that begins by Disseisin by an oblique grant 3. The Father Tenant for life Co. l. 5. 80. a. 1. Fitzherberts case the Remainder to the Son and Heire apparent in tail Leases to A. for years with purpose that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly this is a Warranty that begins by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin this Warranty binds not because of the covin An oblique Grant of Colledge Lands void 4. The Master and Fellowes of Magdalen Colledge in Cambridge Co. l. 11. 73. b. 1. in Magdalen Colledge case grant an House in London to Queen Eliz. upon Condition that she within three moneths should convey it to Benedict Spinola and his Heirs who doth so accordingly this Grant of the Colledge is void by the Statute of the 13 Eliz. 10. and was not helped by the Statute of Confirmation of the 18 Eliz. 2. for it appeared that the intent of the Master and Fellowes was that they should convey the said House to Benedict Spinola and his heires and therefore that which they could not do de directo they attempt to do ex obliquo to grant it to the Queen and her Successors but upon Condition contained in the same Grant that the Queen within three moneths should grant the House to B. Sp. and his Heires so as it was by this device endeavoured that the Queen who was the Fountaine of Iustice should be made an Instrument of injury and wrong and of the violation of a pious and excellent Law which she her selfe had made for the maintenance of Religion advancement of learning and sustenance of poore people The like In 17 E. 3. fo 59. Co. ibid. b. 4. The Fryers Carmelites who had not then any place of habitation obtaine of one John Merite who was seised of ten Acres of Meadow holden of the Bishop of Winchester to have the said ten Acres of Meadow for a place of habitation for them and because John Merite could not grant unto them the ten Acres by reason of the Statute of Mortmaine by covin contrived betwixt Merite and the Fryers to oust the Bishop of his Seigniory Merite to evade the Statute of Mortmaine grants the ten Acres to the King his Heirs and Successors whereby the Bishops Seigniory might be extinct to the end that the King should grant them over to the Fryers which he did accordingly Howbeit because here there was a practice betwixt Merite and the Fryers to take away the Bishops Seigniory it was adjudged that the Charter should be repealed and that the Carmelites should be distrained to deliver it to be cancelled Lands purchased with the Kings money 6. In Term. Trin 24. E. 3. Rot. 4. in the Exchequer Co. l. 11. 92. b. 4. in the Earle of Devonshires case one Walter Chirton the Kings Customer had purchased certaine Lands with the Kings money and by covin had caused the Vendor to enfeoff his freinds in fee to defraud the King and yet neverthelesse took the Issues and profits of the Land to his own use and those Lands were by inquisition returned with the values into the Exchequer and there by Iudgement were seised into the Kings hands untill c. for albeit the estate of the Land was never in Chirton yet the taking of the estate in the name of others and he in the meane time receiving the profits thereof was all one as if he had taken the estate in his own name especially in the Kings case and the lands being bought with the Kings money Fraudulent Indictment 7. One Verney in the 34 H. 6. Dyer 245. 65. 8. Eliz. being in execution in the Fleet for divers debts as also for Fines to the King returned into the Exchequer caused himselfe to be indicted of Felony with an intent to confesse it and to have his Clergy and so to be out of the temporall Law and then to have his purgation and all this with purpose to defraud his Creditors c. And upon a Corpus cum causa all was removed into the Kings Bench Howbeit the King having notice of the Fraud by a privy Seale commands the Iustices to stay the Araignment c. 160. Rectum est index sui Obliqui Co. l. 10. 24. b. 2. 1. In the Case of Suttons Hospitall Sir Edward Coke excuseth himselfe from answering the Objections in that case at large being Excuse to answer objections as he saith for the most part of no great moment by producing manifest and fallible proofs of the validity of that Incorporation alleadging this Maxime for the ground thereof Rectum index sui obliqui Dyer 234. 16. 7. El. 2. In a Formedon in Descender Formedon a Fine with Proclamations levied in 30 H. 8. was pleaded in Bar and the issue being upon Nul tiel Record at the day the Tenant had the Record but in the Proclamations viz. 5 6 7 8. made in Trin. Terme the yeare of the King was omitted Howbeit because in Easter Terme before and Michaelmas Terme after 30 H. 8. was exprest of necessity it did follow that the said foure Proclamations were also made in the same yeare for they being right by consequence the others were right also And thereupon it was held that he had not failed of the Record 161. It disfavoureth Improbabilities Co. Inst p. 1. 25. b. 4. Co. l. 10. 50. b. 1. in Lampets case 1. If Lands be given to a man and a woman being not his wife Lands intailed and to the Heires males of their two bodies they have an Estate Taile albeit they be not married at that time so it is also where Lands are given to a man which hath a wife and to a woman which hath a husband and the Heires of their two Bodies they also have presently an Estate Taile for the possibility that they may marry But if Lands be given to two Husbands and their Wives and to the Heires of their Bodies begotten they shall have a joynt Estate for life and severall Inheritances viz The one Husband and Wife the one Moiety
drawes right of property 225. followes the possession 227. may be forfeited 237. preferred before the possession 372. where extinct Et e contr 440. cannot incorporate with wrong 567. favourably expounded 502. cannot dye 504. Present or future may be barred 485 Robbery 110 Return The Court cannot proceed upon a-False returne 272 S. SAles not good upon the Lords day 8. by the Sheriff 707 Scandal magnatum 87 Seisin 668. payment of Rent by a Term or is no seisin 58. 287. 363. 548. 593. Presentment of the grantee a good seisin for the grantor in a Quare Impedit 191. not traversable 287. of a Rent by the Feoffor 421 Scire facias 160 613 690. When shall issue out when not followes the Record 229 Seales 743 Seizure of a villaine 162 Seigniory 263. suspended 361. 443. Sheriffs 244. must take notice who are in Execution 420. Where they may break up a house to deliver Execution or Seisin 678 Sewers 685 49 Socage lands deviseable 35 Subsidies uncertain made certain by circumstances 407 Surrenders 235 603. By Attorney 152 after a grant of a rent 164 intire 260 in Law 472 447 450 Suspence Seigniory suspended not grantable 56 personall things once suspended ever gone 154 Statutes what binde the King 13. subsequent expounded by equity of former 23 220 Interpretation of them 24 142 Of 32 H. 8. of pretenced rights 326 388 That abridge liberty how taken 355 taken by intendment 501 Stewardship 300 Services Intire 262 263 Divine 285 Summons and severance 337 574 T. TAil what things may be intailed 358 Void for incertainty 405 docked by recovery value 414 Tales 507 Terme not extinct by purchase of the Fee 335 not drowned 339 Tempus sem how to be accounted 12 Tender Of marriage 91 687 of amends 259 of mony to a stranger 200 Upon a mortgage 375 Excused 570. of Livery by the heire 610. Tender and refusall 470. â—or the Redemption of a mortgage by the Guardian 497. For an ideot 497. by a straner where saves a forfeiture 485. of the demy marke 677 Of the debt in Court 689 Tenant by the curtesie 41 581 Tenant in tail 313 550 cannot grant any remainder of his estate 57 barred by a common Recovery and how not 130 131 Tenant in Frankalmoigne 149. cannot disclaime 104 is not to be distrained for Arreares 106 Tenant Right 214 Tenants in common 244. shall joyn in Assise 545 where joyne where sever in actions 611 Tenant in tail after possibility c. 450 Tenant for anothers life 578 Tenant at sufferance 453 Tenures In capite 61. 142. In socage 97 136. not extinct by purchase of part of the Land 507 Treason 110 Treasure none can dispose of the Kings treasure without licence 303 304 Trade what it is 139 Traverse not without an office found 72. the place not to be traversed in personall actions 382. Traverse upon a traverse 618 Trespass 268. for oppression in the Common 387 Trees 231 Tryall in a forrain county 224 of villainage 351. of a Peer in Ireland 497. Per medietatem lingue 472 Trover brought by a Lunatick 427 Trusts where they shal go to executors 187 V. VAriance betweene the originall and judgment 637. in circumstances no prejudice 384 Between the writ and the count 636 637 Valore Maritagii 716 Verdict intire 261 in criminall causes not privy 353 where at large 604 708. incertain is insufficient 624. 631. 632. 648. where voided by acts done by the Jurors 697 Et e contr Villain 37 292 337 765 764. may sue his Lord 282 by Confession 419 may give his goods before seisure 666 View of the vouchee 92 Voyage royall 61 Voucher 92 449 of the heir and the younger Son 110 475. Of the assignee 169 in dower 194 Vsurpation 310 318 upon an Infant 444. Vnity of possession doth not extinguish partition 150 Vses 349. Revoked 72 of a recovery after it is suffered declared 109 regarded as E states 202 superstitious draw good uses 231 good and charitable to be preferred 740 741 752. introduced inconveniences 748 Declaration of them 771 good and superstitious how they shall operate 628. W. WAger of Law 429. 644. 697. 714. 716 419. Not by a prisoner for meat and drink 669. Where not in account and where in debt upon a Bond 51. Not by an Infant 94 Wardships 700. 713. the husband after the death of his wife guardian shall loose it 37. The second ward shall not sue Livery 37. Revived 40. No Wardship because the tenure begins in the Sons 61. of an use 111. Where though not dying seised 142. Not during the Fathers life 277 278 Way 377 Warrants 366 Waiver of goods To whom the goods belong 501. 502 Warranty 238. 314. 326. No bar e contra 20 256 340. Collaterall and Lineall 39. 163. 283 402. 648. Which commenceth by disseisin 45. 63. 144. 187. 250. 564. 617. 619. The Heire not bound to warranty where the Ancestor was not 57. Makes a discontinuance 99. Extinct 118. May increase upon an Estate granted 119 Determined 124. What words imply it 124. void 124. Without the word Heires 187. Implyed in Exchange and partition 191. For life only 206. Followes the Land 250. Intire 256. 262. Deraignment of it 535. Annexed to incorporeall things 411. With Assets bindes the King 411. Expresse and implyed 447. By Husband and wife 555. Continues after Partition 577 Warrantia Charta 157. 469. 719. Not after a Recovery in value 410 Waste 37. 141. 143. 334. 574 465 700. 728. 729. 750 751. 582. By him in the remainder maintainable where 39. Et e contra In Cole mines not opened 67. 573. Against Tenant in Dower and by the curtesie 188. Against the Guardian 575. Successor not charged with it 451. Women Not sworne in Leets 318. Withernam 560 Wills Void 74 Of an Infant when 85. Repugnant void 243. Revoked by marriage 465 Witnesses 453 Writings in parchment or in paper 393 Words In Grants needlesse 245. Of inferiour Ranck exclude them of higher 270. Construed in the mildeâ— sense 704. Generall Imply no certainty 635 636 Writs Of Customes and services 18 317. not to be changed without Act of Parliamen 68. De secunda superoneratione 273. Of Right oâ— Advowson 294. Of Mesne 371. 380. 445. Of Entry upon an Advowson 421. Oâ— Disceit 560. To the Bishop 112. Adversaâ—ia amicabilia and their difference 482 Where to be brought 496 Wreck 489. FINIS
paramount but never to recover pro rata against her by force of the warranty in Law upon the partition for by her alienation the unitas juris that was betwixt them is severed and she hath dismissed her selfe to have any part of the land as parcener and as parcener she must recover pro rata upon the warranty in law or not at all Co. Inst pars 1 2. b. 2. 68 If an alien purchase lands Alien Merchant c. upon an office found the King shall have them yet being a Merchant he may take an house and kéep it so long as he useth commerce and for that purpose but when he leaves so to do dies or departs the Realm the King shall have them Dyer 13. 61. 28 H. 8. 69 If a man make his executors and enter into religion A Monk dereigned and after is dereigned In this case he shall have againe all his goods which his executors have not spent for cessante causa c. Dyer 57. b. 1. 25 H. 8. 70 Cestuy que use for terme of life since the Stat. of R. 3. makes a lease for the term of the life of the lessor and dies In this case the estate of the Lessée is determined Cestuy que use and he is after the death of Cestuy que use onely tenant at sufferance The Lo. Zouches case 20 Remoto impedimento emergit actio contra Co. Inst pars 1 128. b. 2. 1 If the defendant plead an outlawry in the Plaintiffe Out lawry in disability of his person and the Plaintiff after that plea pleaded purchase a charter of Pardon because the charter hath restored him to the law the defendant shall answer So note the disability abateth not the writ but dis-inableth the Plaintiff until he obtaineth a charter of Pardon Co. ibid. 133. b. 3. 2 Excommunication may be pleaded in disability of the person Excommunication yet if the demandant or Plaintiff purchase letters of absolution and shew them to the Court he may have a re-summons or re-attachment upon his original according to the nature of his writ 9 H. 7. 27. Co. ibid. 238. b. 2. 3 If a disseisor make a gift in taile Entry revived and the donée hath issue and dieth seised now is the entry of the disseisée taken away but if the issue die without issue so as the estate tail which descended is spent the entry of the disseisee is revived and he may enter upon him in the reversion or remainder 13 H. 4. 8 9. 33 H. 6. 5. b. per Moyle 34 H. 6. 11. a. per Curiam Co. ibid. 3 If there be grandfather father and sonne disseiseth one and enfeoffeth the grandfather who dieth seised The like and the land discendeth to the father now is the entry of the disseisée taken away but if the father dieth seised and the land discendeth to the sonne here is the entry of the disseisée revived and he may enter upon the sonne who shall take no advantage of the discent because he did the wrong unto the disseisée Co. ibid. 4 If a disseisor make a Lease to an Infant for life and he is disseised and a descent cast the Infant enters The like the entry of the disseisée is lawfull upon him Co. ibid 245 b. 1. 5 If the mulier entreth upon the Bastard Bastard Mulier and the Bastard recovereth the land in an assize against the mulier now is the interruption avoided and if the Bastard die seised this shall barre the mulier Littl. § 407. 408. Co. ibid. 248. 6 If I am disseised by an infant within age Entry revived who aliens to another in fée and the alienée dies seised and the tenements descend to his heire the Infant being still within age here my entry is taken away way but if the Infant within age enter upon the heire that is in by descent as he well may because the descent was cast during his nonage then may I well enter upon the desseisor because the infants entry hath defeated that descent The like 7 If I be disseised and the disseisor makes a feofment in fée upon condition and the feoffée dies seised of that estate Here Littl. § 409. Co. ibid. 248. I cannot enter upon the heire of the feoffée But if the condition be broken so that the feoffor doth therefore enter upon the heire Now may I well enter because by the entry of the feoffor the descent was utterly defeated The like 8 If a feme inheritrix take baron and they have a sonne Littl § 636. Co. ibid. 338. and the baron die and she takes another baron and the second baron lets the land that he hath in right of his wife to another for terme of his life and after the feme dies and then the tenant for life surrenders his estate to the second baron Littleton makes a Quaere whether the issue of the feme may enter during the life of the tenant for life but after his death he holds it cléer he may and my Lord Cook proves it plainly that he may also enter upon the baron immediately after the surrender Collateral and lineal warranty 9 A collateral warranty doth not give a right Co. ibid. 372. a. 1. Littl. § 708. but onely bindeth a right so long as the same continueth and therefore if the collateral warranty be determined removed or defeated the right is again revived as in this example If tenant in tail hath issue thrée sonnes and discontinue the taile in fée and the second sonne releaseth by his déed to the discontinuée binding himself and his heires with warranty c. and after the tenant in taile dies and the second sonne dies without issue here the eldest sonne is barred to have any recovery by writ of Formedon because the warranty of the second brother is collaterall unto him in as much as he can by no meanes convey unto himself by force of the entaile any descent by that brother and therefore as to the eldest brother it is collaterall warranty But in this case if the eldest brother die without issue then may the youngest brother well have his writ de Formedon in descender and shall recover the land because the warranty of the second brother is lineall to the youngest sonne in as much as he might have conveyed unto himselfe by possibility the estate by his second brother in case he had survived the eldest c The like 10 If tenant in taile lets lands to a man for term of his life Littl. § 738. Co. ibid. 387. the remainder to another in fée and a collaterall ancestor confirmes the estate of the tenant for terme of life and binds himselfe and his heirs to warranty for the terme of the life of the tenant for life and dies and the tenant in taile hath issue and dies in this case the issue is barred of his
writ of Formedon during the life of the tenant for life because of this collaterall warranty descended upon him but after the death of the tenant for life the issue may have that writ if he please Remainder 11 If there be tenant for life the remainder for life Co. l. 5. 76. b. Pagets case 9 Eliz. the remainder in fée and the tenant for life make wast in the trées and after he in the remainder for life die an action of wast is maintainable by him in the remainder for the wast done in the life of the tenant for life So it is likewise where he in the remainder for life after the wast committed surrenders his estate to him in the remainder or reversion in fée For Remoto impedimento Lease by tenant in tail 12 If tenant in taile of lands in capite makes Leases Co. l. 7. 7. b. 8. a. The Earl of Bedfords case not warranted by the Statute of 32 H. 8. 28. and dies his heire under age in this case although the King in right of the heire may avoid those Leases for his time yet if after the Kings interest determined the heire accepts the rent they shall be thereby made good againe So it is also of a subject that is guardian in chivalry Co. ibid. 13 If a Bishop make a Lease By a Bishop not warranted by the Statute so that his successor may avoid it and dies the King shall avoid the Lease during the vacancy of the Bishoprick but after the Kings interest determines if the successor accepts the rent the Lease is made good again Co. l. 8. 71. b. 4 Grerebeyes case 14 Land is given to Baron and Feme and to the heires of their two bodies the Baron makes a feoffment in fée Entry congeable and having issue of the Feme dies the Feme also before entry dies here the estate taile is discontinued so that the issue cannot enter but in this case if the Feme had entred and recontinued the estate taile then had the discontinuance béen purged and the estate tail had béen thereby revested in the Feme and would have from her descended upon the issue and so his entry had béen congeable Fitz. 28. b. 15 A man shall not have execution against the Kings debtor The Kings debtor that hath a Protection because the King ought to be paid first yet if the Plaintiff will undertake to pay the Kings debt he shall have Iudgement and execution for both the debts Co. Inst pars 1 33. a. 4. 16 If the husband alien his land Dower and then the wife is attainted of felonie now is she disabled but if she be pardoned before the death of the husband then is she again entitled to her writ of Dower Co. ibid. 46. a. 4 17 If tenant in fée take wife Dower and make a Lease for yeares and dieth the wife is endowed she shall avoid the lease but after her decease the Lease shall be in force again Co. ibid. 138. a. 4. 18 Regularly Lord and Villain if the Lord sue against his villaine a Praecipe quòd reddat c. that is a manumission yet if tenant in tail of a Mannor whereunto a villain is regardant enfeoffe the recovery of the Mannor and dieth the issue shall have a Formedon aganst the villein and after the recovery of the Mannor he shall seise the villain and the bringing of the Formedon shall work no manumission for that he could not seise him till he had recovered the Mannor which was the principal and at the time of the writ brought he was no villain Co. ibid. 59. a. 2 19 If lands holden by Knight-service be given to an Abbot and his successors albeit he holdeth the lands by Knight-service Wardship revived and shall find a man conveniently arrayed for the warre c. yet upon his death no ward mariage or reliefe is due to the Lord Howbeit if the Abbot with the consent of his Covent alien the lands to a man and his heires there is then ward mariage and reliefe revived c. Littl. § 632. Co. ibid. 336. a. 20 If the baron be seised of land in right of his wife Entry congeable and makes feoffment in fée upon condition and die if the heire do afterwards enter upon the feoffee for the condition broken the entry of the feme is congeable upon the heir because by the entry of the heire the discontinuance was defeated Co. ibid. 174. a. 4. 21 If there be two Coparceners To deraign warranty paâ—â— ramount and one of them makes feoffment in fee of her part to a stranger with warranty if the feoffee be afterwards imlpeaded he cannot have aide of the other Coparcener to deraigne the warranty paramount but he may vouch the feoffor and she may have aide to deraigne the warranty paramount And yet if there be two Coparceners and they make partition and the one of them enfeoffees her sonne and heire apparent and dieth in this case if the sonne be impleaded albeit he be in by the feoffment of his mother yet shall he pray in aide of the other Coparcener to have the warranty paramount for upon the descent the warranty betwixt the mother and the sonne is by Law annulled and then he is in the same condition as if the tenements had descended upon him 22 Vide M. 28. ca. 4. 3. 5. Entry 23 If there be grand-father father and sonne Co. ibid. 265. a. 4. and the father disseise the grand-father and make a feoffment in fée the grand-father dieth the father against his own feoffment shall not enter but if he die his sonne shall enter for remoto impedimento c. Protection 24 Albeit a Protection be allowed by the Court for a yeare Co. ibid. 131. b. 1. yet if it be repealed by an Innotescimus the Re-summons or Re-attachment shall be granted upon the repeal within the yeare for Remoto impedimento c. And albeit some books hold the contrarie yet the later books are of that opinion for otherwise the repeale would serve for little purpose if the Law should not be so taken No accessory without a principal 25 A. was indicted for felony Co. l. 9. 119. b. 2 in the Lord Sanchiars case Temps E. 1. Tit. Mortdancester 46. and B. of the receit of A. A. Essoignes himselfe and is outlawed B. was taken and putting himselfe upon the Inquest was found guilty whereupon B. was attainted and hanged and the Lord entred as in his escheate and after A. came and reversed the outlawrie and pleading to the felony was found not guilty and so was acquit whereupon the heire brings a Mortdancester against the Lord by escheat who comes and shewes all this matter unto which it was demurred in Law whereupon it was awarded that the heire of B. should recover seisin of the land for if B. had béen then
alive he should have gone quit by the acquittal of A. because he could not be a Receiver of a felon when A. was no felon And remoto impedimento c. Vide plus ubi supra 21 Things are construed according to that which was the cause thereof Vide 31. 9. Tenant by courtesie 1 If the King give lands to a man and a woman and to the heires of their two bodies and the woman die without issue Co. Inst pars 1 21. b. 4. 9 H. 3. Dower 202. yet shall the man be tenant in taile after possibility c. But if the King give land with a woman of his kindred in frank-mariage and the woman die without issue the man in the Kings case shall not hold it for his life because the woman was the only cause of the gift but otherwise it is in the case of a common person Frankmariage 2 If lands be given to a man and a woman in special taile Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus both shall hold the lands for their lives a 13 E. 3. Tit. Ass 19 E 3. Ass 83. 12. Ass 22. 19 Ass 2. But in case of frankmariage if they be so divorced the woman shall enjoy the whole land because she was the cause of the gift So if lands holden in c Plowd Carzibs case soccage be given in special tail and the Donées die the issue being within the age of 14 yeares e 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kinne of the part of the father or of the part of the mother which can hap the custodie shall have it but in case of frank-mariage the heire of the part of the mother shall have it because she was the cause of the gift as aforesaid Co. ibidem 88. a. 4. Formedon 3 If a woman tenant in general tail maketh a feoffment in fée and taketh backe an estate in fée and take an husband and hath issue and dieth the issue may in a Formedon recover the land against the father because he is to recover by force of the estate taile as heire to his mother and is not in that case inheritable to his father the estate tail being the cause and ground of his title An Office 4 A man may have an estate for life determinable at will 3 E. 4. 8. b. as if the King doth grant an office to one at will and also grant a rent to him for the exercise of his office for terme of life this is determinable upon the determination of the office which occasioned the grant of the rent 19. 59. Co. ibid. 85. a. 2 5 If a man make a Lease for yeares of a villeine this cannot be done without déed neither can the Lessée assigne it over without déed Grant of a Villain by deed because it is derived out of a fréehold that lyeth in grant which indéed is the material cause of the grant but a wardship is an original chattel during the minority derived out of no fréehold and therefore as the Law createth without déed so may it also be assigned over without déed Co. ibi 102. a 4 9 E. 2. execut 249. 6 Vpon a judgement in debt Judgement execution the Plaintiffe shall not have execution but onely of that land which the defendant had at the time of the judgement because the action was brought in respect of the person and not in respect of the land But if an action of debt be brought against the heire and he alieneth hanging the writ yet shall the land which he had at the time of the Original purchased be charged for that the action was brought against the heire in respect of the land Co. bid 102. b. 1. 22 Ass Pl. 32. 7 If a man be nonsuit the land onely Amerciament Issues of Jurors which he had at the time of the amerciament assessed shall be charged and not that which he had at the finding of the pledges for the amerciament is not in respect of the land but for his want of prosecution which was a default in his person But the issues of a Iuror shall be levied upon the feoffee albeit they were not lost before the feoffment because he was returned and sworn in respect of the land 8 A tenure of the King in Capite Tenure in gross is said to be a tenure of the King a Bract. f. 87 as of his Crown that is as he is King c Co. ibid. 108 a. 4. ubi Vide praedict Author And therefâ—râ— if one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of treason he holdeth of the pâ—rson of the King but not in Capite because the original tenure was not created by the King Vide infra M. 25. ca. 10. Co. ibid. 158. a. 3. 15 H. 7. 9. 14 H. 7. 31. 18 E. 4. 3. 9 If the cause of challenge alleaged by the Plaintiff against the Sheriff be pâ—rtiality to either party Challenge and processe be once awarded for such partiality though there be a new Sheriff yet processe shall never be awarded to him but to the Coroners and therefore in that case the entry is Ita quòd Vicecomes se non intromittat But if the cause of Challenge be for that the Sheriff was tenant to either party or the like in that case the processe shall be directed to the new Sheriff and not to the Coroners Co. ibid. 161. a. 2. 44 E. 3. 20. 6 R. 2. Refc 11 11 H. 7. 4. 21 H 7. 40. 34 H. 6. 18. 16 E. 4. 10. Co. l. 9. fol. 22. Case of Avowry Co. ibid. 169. b. 2. 15 H. 7. 14. 29 Ass 23. 29 E. 3. 9. b. 10 If the Lord come to distreine cattle Distress which he séeth then within his fée and the tenant or any other to prevent the Lord to distreine driâ—es the cattle out of the Lords fée into some other pâ—ace not within his fée yet may the Lord freshly follow and distreine the cattle and the tenant cannot make rescous But if the Lord comming to distreine had no view of the cattle within his fée though the â—enant drive them off purposely or if the câ—ttle of themselâ—es after the view goe out of the fée or if the tenant after the view remove them for any other cause then to prevent the Lord of his distresse then cannot the Lord distrein them out of his fée and if he doth the tenant may make rescous 11 If there be thrée Coparceners and they make partition Rent in Coparcenary and one of them grant 20 s. per annum out of her part to her two sisters and their heires for egaltie of partition the grantées are not joynt-tenants of this rent but
therefore if Tenant in taile seised of divisable lands alien them in fée to his brother who afterwards deviseth the same lands to another with warranty against him and his heires and dies without issue This warranty shall not barre the heire in taile of his Formedon because this warranty did not descend to the issue in taile for that the Vncle of the issue in taile was not himselfe bound to the warranty in his life time neither yet could he warrant the Lands in his life time in as much as the devise could not take effect till after his death And now because the Vncle in his life time was not bound to warranty such warranty cannot descend from him to the issue in tail c. For nothing can descend from an Ancestor to his heire but that which was first in the Ancestor So likewise if a man make feoffment in fée and bind his heires to Warranty this is void as to the heir because the Ancestor himself was not bound c. Tenant in tail cannot grant any remainder of estate 10 He in the remainde in taile bargains and sels his land Co. l. 2. 51. b. 4. 52. a 2. Sir Hugh Chomleys ease and all his estate c. by indenture inrolled c. to I. S and his heirs male c. to have and hold for the life of the tenant in taile the remainder to Qéen Eliz. c. Here the remainder to the Queen is void for when he in the remainder hath granted all his estate to I. S. he cannot limit any farther remainder of it to the Queen because a remainder is but a remnant of the estate of the Grantor and the Queen cannot have any such remnant of estate when he had granted away all his estate before to to I. S. And therefore it was agréed Hill 35. El. in Blithemans case that if tenant in taile in consideration of fatherly love covenant by Déed to stand seised to the use of himselfe for his owne life and after his death to the use of his eldest sonne in taile and after this Covenant the Covenantor takes feme and dies in this case the feme shall be endowed for when tenant in taile hath limited the use to himselfe for his own life he cannot limit any remainder over because an estate for his own life is as long as he himselfe can limit by the Law and therefore the limitation of the remainder is void and by consequent the Dower good c. Entty taken away from issue in tail 11 The Baron seised to the use of himself and his wife for life Co. l. 3. 61. a. 3. Lincolne Colledge case and the heires of the body of the Baron dies the issue in the life of the feme then Tenant of the Frank-tenement for so the pleading was which shall be intended by disseisin for no surrender or forfeiture was alleadged 4 H. 8. suffers a common rocovery with single voucher by agréement that the recoverors shall enfeoffe Litster and others to divers uses and that the feme shall release to them with Warranty which was done accordingly 11 H. 8. the feme dies after that the issue dies and afterwards his issue in the third degrée enters The question was whether the collaterall warranty shall bind for the recovery came not in question because by the pleading it shall be intended that the issue was seised by another Title then the intaile and so the single voucher not material or whether the warranty shall be adjudged void by the Statute of 11 H. 7. 20. And in this case it was resolved that the warranty shall bind the Demandant and was not void by that Statute because when the first issue by the common recovery had against him by his own agréement had disabled himselfe to take benefit of the forfeiture given by the Statute after his death another issue claiming from him shall not take benefit of it for if the Ancestor being in esse at the time of the forfeiture could not enter much lesse shall any person which was not in rerum natura nor had the immediate interest Title or Inheritance at the time of the forfeiture ever enter or take benefit of that Act And although there was error in the recovery yet the Warranty of the feme shall barre the first issue of his writ of Error because by his own act he hath barred himselfe of the entry which the Statute prescribes and the like in effect was adjudged in Sir Geo. Brownes case Co. ibid. 51. b. ◠where the issue in tail in the life of his mother having the reversion in fée levies a fine without proclamations for there the issue against his own fine could not enter although it was erroneous Copihod Custome 12 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. 1. Murrel and Smiths case that by the Severance of the Inheritance of the Copihold from the Mannor the Copihold is not destroyed for in as much as the Lord himselfe cannot out the Copiholder no more shall any claiming under him have power to do it because Nemo potest plus juris c. A release by bail not good 13 In debt Marshall was baile for the Defendant Co. l. 5. 70. b. Hoes case Co. Inst pars 1 265. b. 2. and before Iudgement the Plaintife releaseth to Marshall all actions duties and demands and after judgement was given against the Defendant upon whose default Scire facias issued out against Marshall who pleads the said general release but it was adjudged that the release was not effectual to barre the Plaintife because the words of the baile being conditional viz. Si contigit Defend c. non solvere c. there cannot be by the baile any present and certaine duty before judgement given for before that it cannot be known to what summe the debt and damages will amount neither is he that bailes at first bound in any certaine summe but his recognisance being general it shall be reduced to a certainty by the Iudgement A release not good 14 In Trin. 4. El. Rot. 1207. in Com. Banco Co. ibid. 71. b. Dyer 5. El. 217. it was adjudged that by a release of all actions suits and quarrels a covenant before the breaking of it is not released because there is not any cause of action nor any certaine duty before the breaking of it c. Payment of rent by a termor no seisin 15 A. deviseth rent to B. for life out of the Mannor of D. and deviseth the Mannor it selfe to C. for yeares Co. l. 6. 57. a. 4. Bredimans Case C. enters and payes the rent during the term but after the term the Terre-tenant refuseth to pay the rent whereupon B. brings an Assise And in this case it was adjudged by Coke and the other Justices of the C. Pl. that the payment of the rent by the tenant for years was not seisin to bind the
Terre-tenant after the terme determined because ex Etymologia vi termini he who hath not seisin in the land charged cannot give seisin of the rent for Nemo potest plus juris c. And for the same reason a Praecipe lieth not against a Termor because he cannot render seisin 16 The Testator possest of a Mill for 50 yeares deviseth it to M.M. after the death of his wife Acceptance a good barre Co. l. 8. 96. a. 1. Mannings case who in the meane time was to have the occupation of it during her life paying unto M. M. 7 l. per annum and he makes his wife his executrix and dies the wife administers enters and payes the rent Here the payment of the rent by the executrix was sufficient assent to the legacy and then she having given her assent to the first devise it lay not in her power to barre him that was to have the future devise for she could not transferre more to another then she had her selfe because after that by her assent she had executed the second devise she could not afterwards otherwise dispose of it to discharge other Legacies Debts or the like c. Remainder in tail of a lease cannot grant it 17 If A. possest of a terme for 500 yeares deviseth it to B. for life Lampets case Co. l. 10. 47. b. 3 l. 466. b. Fulwoods case the remainder to C. and the heires of his body in this case C. during the life of B. cannot grant the remainder to another because the whole terme is in B. and C. hath but an executory interest depending upon a possibility viz. enjoy it after the death of B. But here B. being executor a release of his interest to him is good Vide suprà 21. 41. Release of a Conisee or heir apparent void 18 If the Conisée of a Statute or Recognisance release to the Terre-tenant all his right in the land yet he shall sue execution Co. l. 10. 50. b. Lampets case 27 E. 3. Execut. 130. 25 Ass Pl. 7. Pl. Co. 72. Sir Thomas Popes case because at the time of the release made he had no interest in the land for that the body is the Debtor and not the land but in respect of the body and the land is not charged with the debt before execution sued So likewise a release of the sonne to the disseisor of the father in the life of the father is utterly void because the sonne hath no right at all in the life of his father Vide supra 1. A joyn-tenant can grant but his moity 19 Albeit Ioyn-tenants are by Littleton said to be seised per my per tout yet can they not singly dispose of more then the part Co. Inst pars 1 186. a. 2. Littl. § 288. that belongs unto them as to enfeoffe give or demise or to forfeit or lose by default in a Praecipe So likewise if my villein and another purchase lands to them two and their heires I can but enter into the moity And where all the Ioyn-tenants joyn in a feofment every of them in Iudgement of Law doth give but his respective part So if an Alien and a Subject purchase lands joyntly the King upon office found shall have but a moity The like 20 If two Ioyn-tenants make a feofment in fée upon Condition Co. Inst pars 1. Ibid. 3. Plowd Brownings case and that for breach thereof one of them shall enter into the whole yet he shall enter but into a moity because no more in judgement of Law passed from him And so it is also of a gift in tail or a Lease for life c. Likewise if two Ioyn-tenants make a feofment in fée and one of the Feoffors dies the Feoffée cannot plead a feofment from the Survivor of the whole because each of them gave but his part A confirmation of a rent void 21 If a man grant a rent charge issuing out of his land to another for terme of his life and after he confirmes his estate in the said rent Littl. § 548. Co. Inst pars 1 308. a. 3. to have and to hold to him in Fée taile or in Fée simple this confirmation is void as to enlarge his estate because he that confirmes had not any reversion in the rent Confirmation by Patron and Ordinary 22 If the Parson of a Church charge the Glebe by his déed Littl. § 528. Co. Inst pars 1 300. b. 3. and after the Patron and Ordinary confirme the same grant in this case if the Patron be Tenant in Fée simple the grant is good but if he hath the Advowson onely for life or in taile then shall the grant stand no longer in force than for his life and the life of the Parson that granted it And in this case if the Bishop be Patron he cannot confirme alone but the Deane and Chapter must confirme also For the Advowson or Patronage is parcel of the possession of the Bishoprick c. Co. Inst pars 1 300. b. 3. 23 A Parson of D. is Patron of the Church of S. as belonging to his Church The like and presents B. who by the consent of A. and 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. c. Co. ibid. 266. a. 3. 24 If the Donée in taile discontinue in fée Release by Dower to the discontinuee and the Donor release to the Discontinuée and die and after the issue in taile doth recover the land against the Discontinuée In this case the issue in taile shall leave the reversion in the Discontinuée for the issue in taile can recover but the estate taile onely which descended unto him from his Father and the Donor cannot have the reversion againe against his own grant and therefore by consequent it shall be left in the Discontinuée c. Co. ibid. 8. a. 2 3. 25 If an Alien cometh into England and hath issue two sonnes Betwixt Brothers no inheritable bloud these two sonnes are indigenae Subjects borne because they are borne within the Realme Howbeit if one of them purchase lands in fée and dieth without issue his brother shall not be his heire for there was never any inheritable bloud betwéen the father and them and where the sonnes can by no possibility be heire to the father the one of them shall not be heire to the other And therefore some have holden that if a man after he be attainted of Treason or Felony have issue two sonnes that the one of them cannot be heire to the other because they could not be heire to the father for that they never had any inheritable bloud in them c. Co. Inst pars 1 a. 3. 26 If Lesse for life make a Déed of feofment Lessor attorney to lessee to make livery and a Letter
case Recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but directory and do not bind the estate or interest of the land yet if the Fine Recovery or other assurance be pursued according to the Indentures no naked averment shall be taken against those Indentures viz. that after the making of the Indentures and before the assurance it was concluded and agréed by mutual consent of the parties that the assurance should be to other uses But if any other agréement or limitation of uses be made by writing or by any other matter as high or higher then shall the last agréement stand for every contract or agréement ought to be dissolved by matter of as high nature as that by which such agréement was contracted because Nihil tam conveniens c. Outlawry reversed by error upon an Indictment 19 One Eaton was indicted in B. R. for the death of a man Eatons case 18 H. 7. Co. l. 5. 111. a. Foxleyes case whereupon an exigent was awarded into the County of Lincolne Eaton dies and was never convict or attainted yet his executors being a writ of Error to reverse the award of the exigent For in as much as the King was entitled by matter of Record it ought to be avoided by matter of as high nature Co. l. 7. 45. Kâ—rns case 20 If two claim as heirs to one man of one and the same Land No traverse without office holden of the King and one is found by office the other cannot traverse that office without first finding another office which finds him heire also Co. l. 8. 25. b. 4. The Princes case 21 The Charter of E. 3. The Duchy of Cornwal Anno 11 Regni sui by which lands were annexed to the Duchy of Cornwal being past by the consent of the Lords and Commons in Parliament retained the force of an Act of Parliament and therefore those lands cannot be disannexed but by Act of Parliament Co l. 9. 79. a. b. 12. H. 4. 23. 9 H. 7. 4. 4 H. 8. Dyer 1. c. Henry Petoes case 22 If a man be bound in a Statute to do any collaterall Act Writing discharged by writing as to make a feofment to render a true accompt or the like here accord with execution by money or any other thing is not satisfaction to save the forfeiture of the Condition for the contract being made by writing to performe such a collateral Act it cannot in that case be altered without writing But if a man by contract or Assumpsit without Déed be to deliver a horse or to build an house or to do any other collaterall thing there money may be paid by accord in sasatisfaction of such Contract for as a Contract upon consideration may begin by parol so by accord by parol for any valuable consideration it may be dissolved Co. l. 10. 86. b. 4 Leonard Loveis case 23 Vses and Powers in contingencie and possibility may be by mutual assent of the parties revoked and determined for Uses and powers revoked c. as they may be raised by Indenture So by proviso or limitation annexed unto them in the same Indenture they may be extinguished and destroyed either before or after their being Co. Inst pars 1 115. a. 3. 24 Albeit a man cannot prescribe or alleadge a Custome against a Statute A prescription saved because it is matter of Record being indéed the highest proofe and matter of Record in Law yet a man may prescribe against an Act of Parliament when his Prescription or Custome is saved or preserved by another Act of Parliament c. Dyer 25. b. 160 28 H. 8. 25 A man is bound by Indenture to pay a summe of money Payment no plea without an acquittance and in an action of debt upon that Déed the Defendant saith he hath paid the summe but sheweth no acquittance In this case the plea is not good for this Indenture is like a simple Obligation where payment is no plea without an acquittance It is otherwise where the Obligation hath a Condition per Mountagu Vide suprà 6. Co. Inst pars 1. 131. a. 4. 26 By the Statute of 13 R. 2. 16. Protection If after a protection is allowed by Innotescimus the party stay in the Country without going to the Service for which he was retained above a convenient time after he hath such protection or repaire from the said Service upon information thereof to the Lord Chancellor he shall repeal such protection by another Innotescimus Howbeit such a protection shall not be avoided by a bare averment of the party in that case because the Record of the protection must be avoided by a matter of as high a nature 28 Things grounded upon an evil void beginning cannot have good perfection Co. Inst pars 1 19 a. 4. 30 E. 1. Form 65. Temps E. 1. 1 Before the Statute of West 2. cap. 1. Alienation by tenant in tail before issue no barre to the donor Alienation by the Donée in taile after issue had did barre the Donor of his reversion but if he had aliened before issue had and had after had issue although that alienation would have barred the issue because he claimed a Fée simple yet in that case if the issue had died without issue Dower of a Ibid. 62. 19. E. 2. Form 61. Plowd 246. Co. 7. 35. Nevils case Co. Inst pars 1 35. a. 3. the Donor might re-enter for that he aliened before any issue at what time he had no power to alien to barre the possibility of the Donor 2 Tenant for life of a Carve of land the reversion to the father in fée reversion ex assensu patris not good the sonne and heire apparent of the father endoweth his wife of this Carve by the assent of the father the Tenant for life dieth the husband dieth here the reversion was a tenement in the father and yet this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a Fréehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet â—imony makes the Presentation c. void 3 A Villein at this day purchaseth an Advowson in fée Co. ibid. 120. a. 2. the Church becomes void the Lord for 100 l. given by A. B. Clerke presents him to the Church and his Clerke is admitted instituted and inducted yet this gaineth not the Advowson to the Lord for by the Statute of 31 El. cap. 6. the presentation admission institution and induction in that case are made void and not onely voidable as they were before the Statute And so it is also if any other on the behalfe of A. B. had given or contracted with the Lord in
Tenant for life A feofment by two and he in the Remainder or Reversion in Fée joyn in a Feofment by Déed the Livery of the Fréehold shall move from the Lessée and the Inheritance from him in the Reversion or Remainder from each of them according to his estate Co. Inst pars 1 303. b. 2. 5 Every man shall plead such pleas Pleas proper as are pertinent for him Secundum subjectam materiam viz. according to the quality of his case Estate or Interest as Disseisors Tenants Incumbents Ordinaries and the like Co. Inst pars 1 200. b. 3. 6 One Tenant in Common may enfeoffe his Companion Feofment Releases but not release because the Fréehold is several Ioyn-tenants may release but not enfeoffe because the Frée-hold is joynt But Coparceners may both enfeoffe and release because their seisiin to some intents is joynt and to some several Co. l. 3. 50. b. 4. Sir George Browns case 7 The words of the Statute of 11 H. 7. cap. 20. Statute of 11 H. 7. 20. interpreted for discontinuances which prohibits a Feme to alien the lands of her deceased husband are these that she shall not discontinue alien release or confirm them with Warranty where Warranty seems to be referred to any Discontinuance or Alienation as well as to release and confirmation So that if a Feme Tenant in special taile after the decease of her husband make a Lease for three lives not warranted by the Statute of the 32 H. 8. cap. 28. without Warranty he in the Reversion or Remainder by force of the said Statute of 11 H. 7. shall not enter but it was adjudged in Sir Geo. Brownes case in the 3 Report that in that case he might enter and that these words with Warranty shall be onely referred to Releases and Confirmations which indéed do not make a discontinuance without Warranty for the intent of the said Act of 11 H. 7. was not onely to prohibit every barre but also every manner of discontinuance which might put the heire to his real action whereby he might perhaps be disinherited or at least greatly delayed And therefore in regard Releases and Confirmations do not make discontinuance without Warranty these words with Warranty are to be construed Secundum subjectam materiam and shall be referred to them onely to make them equivalent to such an estate which passeth by Livery and which of it selfe without Warranty makes a discontinuance Co. l. 4. 10. b. 4. Bevils case 8 The Statute of 32 H. 8. cap. 2. which provides 32 H. 8. 2. interpreted for rents that none shal have any Avowry or Conusance for any rent suit or service unlesse seisin were had within 40 years before the Avowry made extends not to any such Rent or Service which by common possibility cannot happen or become due within 60 yeares as if the Seigniory consists upon Homage and Fealty onely for the Tenant may live 60 yeares after he hath done them So also if the Service be to cover the Hall of the Lord or to go to Warre with him when the King maketh Warre against his enemies such casual Services which by common possibility cannot happen within 60 yeares are not within that Act c. Likewise writs of Escheat Cessavit or Rescous are not within those branches of the same Statute which limit the seisin of land because in those writs the seisin is not traversable but the tenure and in those writs of Escheat and Cessavit albeit they demand the land yet néed they not alleadge any seisin in the same lands c. as the said Statute requires because that Act onely extends to such a writ where the Demandant or his Ancestors may have seisin of the land in demand within the time of limitation prescribed by the Act and the Statute doth not force them to any impossibility c. Scandalum Magnatum 9 The Lord Cromwell brings an Action de scandalo magnatum upon the Statute of 2 R. 2. cap. 5. against Vicar Delmy Co The Lord Cromwels case for speaking these words unto him You like of those that maintaine sedition against the Queens proceedings unto which the Defendant pleades special justification that the Plaintife procured two to prea h in his Church which enveighed in their Sermons against the Book of Common Prayer and because the Defendant did prohibit them the Plaintife said to the Defendant Thou art a false varlet I like not of thee to whom the Defendant said It is no marvel though you like not of me for you like of those inuuendo the two that should have preached that maintaine sedition innuendo seditiosam illam doctrinam against the Queenes proceedings And this was adjudged a good justification For in case of slander for words the sence of the words are to be taken and the sence of them doth best appeare by the cause and occasion of speaking them according to the Rule Sensus verborum ex causa dicendi accipiendus est sermones semper accipiendi sunt secundum subjectam materiam And therefore in this case the Council of the Defendant was said to have done well in shewing the special matter whereby the sence of this word sedition might appeare upon the coherence of all the words taken together viz. that the Defendant meant the seditious doctrine against the Quéens proceedings in the Act of 1 Eliz. by which the Book of Common Prayer was established and that he did not intend any such publique or violent Sedition as was alleadged by the Plaintife and as ex vi termini per se the word it selfe would import c. And it was said Quae ad unum finem loquuta sunt non debent ad alium detorqueri c. Common 10 If Common be said to be appertaining to a Mease Land Co. l. 4. 37. a. 4. 38. a. 3. Tirringhams case Meadow and Pasture time out of mind that shall be adjudged Common Appurtenant and not Common Appendant for it is against the nature of Common Appendant to be Appendant to Meadow or Pasture And therefore in that case the subject matter and the circumstance of the case ought to direct the Court to give Iudgement whether the Common be Appendant or Appurtenant 11 In Appeal of Murder against A. as principal Co. l. 4. 43. b. 4. Bibithes case and against B. as accessory before the fact Accessary in manslaughter A. was found guilty of Man-slaughter but not of Murder in this case B. was acquit because there cannot be an Accessary before the fact in Manslaughter which allwayes happens upon a suddaine debate or effray for if it be premeditate it is Murder Joint warranties or words 11 Ioynt words of the parties shall by construction of Law be taken respectively severally according to the several interests of the Grantées as Warranty made to two of certain lands Co. l. 5. 7. b. 4. 16 H. 6. 63 64. shall enure as
simple as he was before Co. l. 6. fo 17. 18. Sir Edward Cleres case But in the latter case the Will pursuing his power is but a direction of the uses of the Feofment and the estates passe by execution of the uses which were raised upon the Feofment Howbeit in both those cases the Feoffees are seised to the use of the Feoffor and his heires in the mean time â—â—mainder â—od though â—e particular â—â—ate taile 15 If the Lessor disseise A. Lessee for life Co. Inst pars 1. 298. a. 2. and make a Lease to B. for the life of A. the remainder to C. in fee here albeit A. re-enter and defeat the estate for life yet the remainder to C. being once vested by good Title shall not be avoided So it is if a Lease be made to an Infant for life the remainder in Fee the Infant at his full age disagrees to the estate for life yet is the remainder good because it was once vested by good Title And therefore although it be regularly true that when the particular estate is defeated the remainder depending thereupon shall be also defeated yet that rule failes in these and the like cases But in both these cases there was a particular estate at the time of the remainder created An estate sâ—tled by Attornâ—ent 16 If the Lord grants the services of his Tenant to a man Littl. § 552. Co. ibid. 310. a. 3. and after by a Deed bearing a later date he grants the same Services to another and the Tenant attornes to the second Grantee here the last Grantee shall have the Services and albeit afterwards the Tenant will attorne to the first Grantee it is cleerly void c. Devise by Tenant in taile not good 17 If a man seised of lands in taile Littl. § 624. Co. ibid. 334. b. 3. deviseth them to another in fee and die and the other enter c. this is no discontinuance because no discontinuance can be made by Tenant in Tail but such as is made and taketh effect in his life time Severance of Joynture 18 If two Ioyn-tenants within age make a Feofment in Fee Littl. § 634. Co. ibid. 337. a. 3. Co. l. 8. 43. a. 3. and one of them dies and the other survives in as much as both the Infants might have joyntly entred in their lives that right shall wholly accrue to him that survives and he shall enter into the whole c. but in this case if one of the Ioyn-tenants had made a Feofment in Fee and died the right would not have survived because the severance of the Ioynture took effect in both their lives time Whittinghams case Warranty makes a discontinuance 19 In many cases a Warranty added to a conveyance is said to make a discontinuance ab effectu Co. ibid. 339. a. 3. 9 E. 4. 19. 12. E. 4. 11. 21 E. 4. 97. although he that made the conveyance was never seised by force of the estate taile because it taketh away the entry of him that right hath as a discontinuance doth As if Tenant in taile be disseised and dieth and the issue in taile release to the Disseisor with Warranty In this case the issue was never seised by force of the taile and yet this hath the effect of a discontinuance by reason of the Warranty Warranty of an infant void 20 If a man of full age and an Infant make a Feofment in Fee with Warranty this Warranty is not void in part Co. ibid. 367. b. 4. 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 Feofment of an Infant passing by Livery of Seisin be voidable yet his Warranty which taketh effect onely by Deed is meerely void Judge Richels case 21 Iustice Richel in the time of R. 2. Littl. §. 720 722. Co. ibid. 378. 28 29 H. 8. 33 a. Dyer Co. l. 1. 85. b. 4. Corbets case gave his lands to his eldest Sonne upon Condition that if he should alien them in Fee c. that then his estate should cease and be void and that they should remaine to the second Sonne and the heires males of his body c. this was a void limitation because if the eldest Sonne should alien the lands in Fee c. then is the Frank-tenement and the Fee simple in the Alienee and must needs settle and take effect in him and none other and then how can it remaine to the second Sonne c. or how can the second Sonne enter upon the Alienee when he had no right before the Alienation neither since the Alienation could he possibly have any A fine cannot operate doubly 22 If a man make a Lease for life upon Condition Co. ibid. 378. b. 3. that if the Lessor grant over the reversion that then the Lessee shall have Fee here if the Lessor grant the reversion by Fine the Lessee shall not have Fée for when the Fine transferreth the Fée to the Conusée that estate is so setled and takes such effect in him that the same Fine cannot work an estate in the Lessee also for one Alienation cannot vest an estate of one and the same land to two several persons at one and the same time Co. l. 2. 23. b. 4. Balwins case 23 When things that lie in grant Premisses and Habendum dâ—versity and take their essence and effect by the delivery of the Déed without other Ceremony are granted to one and his heires Habendum for yeares or life there the Habendum is repugnant and void as if a man grant rent Common c. out of his land by the premisses of the Déed to one and his heires Habendum for yeares or life the Habendum is repugnant for Fee did passe by the premisses by the delivery of the Déed and therefore the Habendum for yeares or for life is void Againe if one by Déed grant a rent in esse or a Seigniory in the premisses to one and his heires Habendum to the Grantee for yeares or for life Here albeit another Ceremony is requisite viz. Attornement besides the delivery of the Déed yet in as much as they are things that lie in grant and all the estates viz. in Fée for yeares or life ought to have one and the same Ceremony to passe them viz. Attornement for that cause the Habendum is in that case also adjudged void 3. when land is given by Déed in Fee by the premisses Habendum to the Lessee for life there also the Habendum is void because the same Ceremony is requisite to both the estates and it shall be taken most forcibly against the Feoffor 4. When to the estate limited by the premisses a Ceremony is requisite to the perfection of the estate and to the estate limited by the Habendum nothing is requisite to the perfection and essence of it but onely the delivery of the Deed
viris religiosis Judaeis If By-lawes made in inferiour Courts be barred by the Common Law in some Statute Law or warranted by some lawfull and reasonable Custome of the place or are good for the Common-wealth although there be but a few of the Iury that make them yet those Orders or By-lawes will bind all the rest of the inhabitants within that Iurisdiction by reason of the firme foundation upon which they are grounded c. So likewise if Tenements be given in taile upon Condition the Tenant shall not discontinue the tail Littl. § 362. this is a good Condition because warranted by the Statute of Westm 2. cap. 1 c. Release to one having onely a right or upon grant without attornement void 11 Of a Disseisor make a Lease for life Co. ibid. 266. a. 1. the Disseisée may releâ—se to the Lessée and such a release shall stand good but if the Disseisor make a Lease for yeares a release by the Disseisée to such a Lessée is not good because he hath no estate of Freehold upon which the release may enure Howbeit if the Disseisor make a Lease for life Co. ibid. 267. a. 1. the remainder to another for life in Taile or in Fée a release by the Disseisee to him in remainder is good because of the remainder of the estate that is in him upon which the release may worke Co. ibid. a. 4. It is otherwise in the last caâ—e if the Tenant for life in possession be disseised for then a release by the Disseisee to any of them in remainder having but a bare right in the land hath not good ground upon which it may worke c. And therefore if lands be given to a man in taile Litl §. 455. reserving to the Donor and his heires a certaine rent if the Donée be disseised and the Donor release unto the Donee all his right albeit the rent is extinct by that release yet is the reversion still in the Dâ—nor because at the time of the release made the Donee had but a bare right in the land So that if the Donee afterwards enter upon the Disseisor although he shall hold the land discharged of the rent yet shall he be Tenant in taile as he was before So likewise if there be Lord and Tenant and the Tenant makes a Feofment in Fee of the land Littl. Sect. 457 but the Feoffee never becomes Tenant to the Lord in this case a release to the Tenant is void because at the time of the release made the Tenant had no right at all in the land c. Releases good and void 12 If a man let his land for terme of yeares Litâ—â— Sect. 459. Co. ibid 270. a. 3. and the Lessor releaseth to the Lessee all his right c. before the Lessee entreth into the land by force of the Lease such a release is void because before entry he hath but interesse termini and no possession and therefore a release which enures by way of enlarging an estate cannot work without a possession for before possession there is no reversion And yet if a Tenant for twenty yeares in possession make a Lease to B. for five yeares and B. enter a release to the first Lessee is good because he had an actual possession and the possession of his Lessee is his possession So it is if a man make a Lease for yeares the remainder for yeares and the first Lessee doth enter a release to him in the remainder for yeares is good to enlarge his estate Co. ibid. b. 2. But concerning a release before entry there is a diversity betwixt a Lease for life and a Lease for yeares for before the Lessee for yeares enter a release made to him is not good as aforsaid but if a man make a Lease for life the remainder for life and the first Lessee dieth a release to him in the remainder and to his heires is good to enlarge his estate before he make any actual entry because he hath an estate of a Freehold in Law in him which may be enlarged by release before entry c. Release voiâ— 13 If an Infant make a Lease for life Co. ibid. 273. a. 2 3. and the Lessee granteth over his estate with Warranty the Infant at full age bringeth a Dum fuit infra aetatem the Tenant voucheth the Grantor who entreth into Warranty the Demandant releaseth to him and his heires Albeit here is privity in Law and a tenancy in supposition of Law yet because he to whom the release is made in rei veritate hath no estate it cannot enure to him by way of enlargement for how can that release worke upon an estate that is not or how can his estate be enlarged that hath not any So if a Tenanthy the curtesie grant over his estate he is still Tenant as to an Action of Wast Attornement c. and yet a release to him and his heires cannot enure to enlarge his estate that hath no estate at all c. Release for a time good for ever 14 When a man is seised of any lands in Fée simple Littl. Sect. 467. Co. ibid. 274. a. 3. Littl. Sect. 473 474. a release to him of all the right that another hath in the same lands is good without the word heires because he had Fée simple at the time of the release made Littl. §. 519 520. and therefore a release unto him in that case for a day or an hour is a release for ever to him and his heires c. as if there be Disseisor and Disseisée a release by the Disseisée to the Disseisor is good without the word heires to establish the estate to him and his heires c. There is the same Law of a Confirmation Co. ibid. 276. b. 4. 15 If the Disseisor make a Lease for life and the Lessée maketh a Feofment in Fee and to Disseisée releaseth he the Feoffee that release is good to prevent the entry of the Disseisor upon the Feoffee because the Disseisee had power to enter upon the Feoffee before the release made It is otherwise where the entry of the Disseisor is not congeable as if a man make a Lease for life and the Lessee for life is disseised and that Disseisor is also disseised and he in the reversion releaseth to the second Disseisor the first Disseisor shall enter upon the second Disseisor and his entry is lawful and if the lessee for life re-enter he shall leave the reversion in the first Disseisor and the cause is for that the entry of the Disseisee during the life of the Tenant for life and by consequent at the time of the release made was not lawfull Littl. § 475. Co ibid. 277. a. 2 16 A man that hath a Sonne within age is disseised and die Release to aâ— Abator good and bad and after the Son being within age the Disseisor also dies and
re-entry c. and because the rent is arreare the Discontinuee re-enters for this entry the Baron with the Feme cannot have an Assise of Novel disseisin because he is estopped c. but the Feme after the death of the Baron shall have such an Assise against the Discontinuee because both the reversion of the Discontinuée and the estate for life made to the Baron and Feme being defeated by the remitter of the Feme the conditions and rents and all other things annexed to or reserved upon that estate for life are also defeated Littl. § 686 687. Co. ibid. 360. a. 25 If an Abbot Bishop or Deane Charges upon land voidable c. aliens the land belonging to his house Bishoprick or Deanary c. without assent c. and after the Alienée chargeth the land and then the Abbot Bishop or Deane c. by licence resumes an estate again to him and his Successors and after the Abbot Bishop or Deane c. dies In this case the Successor shall defeat the charge because by his remitter he defeats the estate out of which it was granted c. Littl. § 690. Co. ibid. 361. b. 3. 26 If judgement be given against Tenant in taile upon a feigned or false action and the Tenant in taile die before execution Tenant in taile Feigned recovery by which the lands descend to the Issue in tail and then he that recovers sues a Scire facias out of the judgment to have execution thereof against the issue in taile Here if the issue plead to the Scire facias and prove the recovery to be false which was the ground of the Iudgemeâ—t he shall thereby barre the Demandant to have execution of that judgement It is otherwise when the Tenant in taile voucheth and recovereth in value c. by reason of the intended recompence c. Co. ibid. 365. b. 3 366. a. 1. 380 a. 3. Littl. § 725 726. 27 Before the Statute of 11 H. 7. 20. Warranty defeated if a woman had béen Tenant for life the remainder or reversion to the next heire and the woman had aliened in fée with warrany and died this warranty being collaterall had barred the heire in remainder or reversion howbeit in that case if the heire that had the reversion or remainder had by entry in the life of the woman avoyded the estate so aliened the warranty being annexed unto that estate had béen avoided also Co. ibid. 385. a. 4. 28 If a man make a gift in taile at this day Warranty â—â—tinct and warrant the land to him his heirs and assignes and after the Donée make a feoffment and dieth without issue the warranty is expired as to any voucher or rebater for that the estate in taile whereunto it was knit is spent It had béen otherwise if the Feoffment had béen made before the Statute De donis conditionalibus For then both the Donée and Feoffée had a fée-simple And so are our Books to be intended in this and the like cases Co. l. 3. 62. 63. Lincoln Colledge case l. 10. 96. b. Seymors case Littl. sect 741. Co. ibid 389. a. 3. 29 If Tenant in taile discontinue the taile in fee The likâ— and the Discontinuée is disseised and the brother of the Tenant in taile releaseth by his deed to the Disseisor all his right c. with warranty in fee and dieth without issue and the Tenant in taile hath issue and die Now is the issue barred of his action by force of the Collateral warranty descended upon him but if afterwards the Discontinuée enter upon the Disseisor then may the heire in taile well have his action of Formedon c. because the warranty is defeated for when the estate whereunto a warranty is annexed is defeated although it be by a méer stranger as in the case abovesaid the warranty it selfe is also defeated Sublato principali tollitur adjunctum Littl. sect 74â— c. So likewise if the Discontinuée make feoffment in fee reserving rent and upon default c. a re-entry c. and a collateral warranty of an Ancestor is made unto the Feoffee upon condition c. which Ancestor dies without issue In this case also if the Discontinuee by entry for the Condition broken defeat the estate of the Feoffee the warranty is also defeated and the issue may bring his Formedon as before Finch 14. Co. ib. 30. a. 1. Co. lib. 8. 34. Paines case 30 If a woman Tenant in taile general taketh an husband and hath issue which issue dieth and the wife dieth without any other issue Tenant by 〈◊〉 Courtesie yet the husband shall be Tenant by the Courtesie albeit the estate taile be determined because he was entitled to be Tenant per legem Angliae before the estate taile was spent and for that the Land it selfe remaineth But if a woman make a gift in taile and reserve a rent to her and to her heirs and after taketh husband and hath issue and the Donee dieth without issue Rent extinct and newly the wife also dieth In this case the husband shall not be Tenant by the courtesie of the Rent for that the Rent newly reserved is by the act of God determined and no estate thereof remaineth Howbeit if a man be seised in fee of a Rent and maketh a gift in taile generall to a woman she taketh husband and hath issue the issue dieth the wife dieth without any other issue he shall be Tenant by the Courtesie of the Rent because the Rent remaineth c. A lease for years determined 31 A. Lessee for the life of B. makes a lease for yeares by deed indented and after purchaseth the reversion in fee B. dieth Co. Inst pars 1 47. b. 4. In this case A. shall avoyd his own lease although it be by deed indented for he may confesse and avoyd the lease which took effect in point of interest and determined by the death of B. because the estate which A. had in the land for the life of B. out of which the lease for years was derived being determined the lease for years it selfe must needs also determine Leases for years 32 If a man take a lease for yeares of his own land by deed indented the estoppel in this case doth not continue after the terme ended Co. bid M. 31 32 Eliz. Londons case because as by the making of the lease the Estoppel doth grow so consequently by the end of the lease An estoppel determined the Estoppel is determined For that part of the Indenture which before belonged to the Lessee doth after the terme ended belong to the Lessor which should not be if the Estoppel continued 38 H. 6. 24. 30 E. 3. 21. Vide 19. 4. Warranty may be granted increase upon an estate for life otherwise for years Accruer 33 A man letteth Lands for life upon Condition to have fee Co. ibid. 37 8. a. 4.
and warranteth the land in Forma praedicta afterwards the Lessée performs the Condition whereby the Lessee hath fee In this case the warranty shall extend and increase according to the estate And so it is also albeit the Lessor had died before the performance of the Condition for then also the warranty shall rise and increase according to the estate and yet the Lessor himselfe was never bound to the warranty but it hath relation from the first Livery And the reason of this is because a warranty being a Covenant reall executory may extend to an estate in futuro having an estate whereupon it may worke in the beginning But if a man grant a Seigniory for years upon Condition to have fee with a warranty in forma praedicta and after the condition is performed this shall not extend to the fee because the first estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in fee and warrant the land in forma praedicta he in the remainder cannot take benefit of the warranty because he is not party to the déed and immediately he cannot take if he were party to the deed because he is named after the Habendum and the estate for years is not capable of a warranty c. Remainder grants Rent charge voydable 34 A. is Tenant in taile the remainder to B. in taile Co. lib. 1. 62. b. 4. Caples case B. grants a rent charge issuing out of the land to C. and his heirs A. suffers a common recovery and dies without issue In this case C. shall not have the rent because the remainder of B. being defeated by the recovery the estate of his Grantee in the rent is also defeated A remainder must vest either during the particular estate or eo instante that it determines 35 A. seized of land holden in Socage deviseth it to D. for life and after to the next heire male of B. B. hath issue C. A. dies Co. lib. 1. 66. b. 4. Archers case per tot Curiam B. enfeoffs D. with warranty In this case by the feoffment of the Tenant for life the remainder is destroyed for every contingent remainder ought to rest either during the particular estate or at least eo instante that it determines because if the particular estate which should support the remainder be once determined in Deed or in Law before the contingency fall the remainder it selfe must needs be also determined and voyd Here therefore in as much as by the feoffment of B. his estate for life was determined by a condition in Law annexed unto it and cannot possibly be afterwards revived for this cause the contingent remainder is destroyed as aforesaid against the opinion of Gascoigne 7 H. 4. 23. b. Co. lib. 1. 135. a. 4. Chudleys case 36 A. grants land to B. to the use of B. for the life of C. the remainder to the heirs male of C. the remainder to the next heirs of A. B. makes a feoffment to C. and his heirs Here by that feoffment The like the estate for life is destroyed and by consequent the remainders which depend upon it are destroyed also for by the feoffment of the Tenant for life title of Entry was given for the forfeiture and at that time he in the next future remainder was not in esse to take it and therefore the remainders in futuro by this matter ex post facto were utterly destroyed made void So if Tenant for life be the remainder to the right heirs of I. S. If in this case Tenant for life make feoffment in fee during the life of I. S. the remainder is destroyed for otherwise there should be a remainder without a particular estate which cannot be Co. ibid. b. 3. 11 R. 2. Detinue 46. 37 A gift in taile was made to A. C. the remainder to the right heirs of A. S. the Donee makes feoffment to B. in fee and after A. S. dies The like the right heir of A. S. shall never have that remainder for the estate of the Land was by the feoffment of the Tenant in tail devested and discontinued and all the estates vested in the Feoffee neither was there any particular Estate either in esse or in right to support the remainder when it fell c. Co. l. 2. 52. a. 4. Sir Hugh Cholmleys case 38 If a man make a gift in taile the remainder in fée The like he in the remainder grants his remainder to another for life the remainder to the King in fée upon condition that if he pay or tender 10 l. at the Rolls c. that then the grant shall be void The tenant in taile suffers a recovery and thereby destroys not onely the estate taile it selfe but likewise the remainder in fée and the estate for life granted by him in the remainder and so by consequent the remainder to the King as also the condition which depend upon the estate for life c. Co. lib. 2. 55. Bucklers case 39 There is a diversity betwixt a grant made by the agréement of the parties which standeth not with the rules of Law Grant made upon a good ground contra Diversity can never by any subsequent as by livery or attornment be made good a grâ—â—t which is good at the beginning but is to have his consummation and perfection by some Ceremony subsequent As in case of a Charter of feoffment if the Feoffée enter before livery he is not a Disseisor for the Charter is good and the agréement of the parties is according to Law and that may be made good by livery of seisin subsequent But if lands in lease for years be granted to C. Habendum tenementa praedicta from Michaelmas next for life and after Michaelmas the Tenant attorns In this case the grant to C. is voyd and cannot afterwards be made good by attornment and therefore if he enter he is made a Disseisor for the Law will make construction upon the whole grant and an estate of Franktenement cannot commence in futuro And therefore observe well the difference betwixt a good beginning or foundation capable of a structure and an evill one which wants a foundation whereon the structure may stand and be built c. Co. lib. 4. 24. a. 1. Copihold cases Clarke and Penyfathers case 40 If a Disseisor or the feoffée of a Disseisor or any other Admittances of copihold that hath a forcious or feasible estate or interest subject to the action or entry of another holdeth Court and maketh any voluntary grant upon the escheat or forfeiture of a Copi-hold such voluntary grant shall not bind him that right hath for when after re-continuance of the Mannor by action or entry he shall have defeated the title of such Disseisor c. he shall also avoyd such voluntary grants But if such a Lord that is in
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
The case of the City of London upon the forfeiture of the paine of 5 l. for that he non existens libera persona c. usus est manuali occupatione de Tallow-chandler c. And upon the return of the Habeas Corpus into the Kings Bench the Court tooke advisement upon that part of it whereby it was averred that he non existens c. usus est manuali occupatione de Tallow-chandler c. and shewed not that he sold any Candles c. For if he made them for his owne use and sold none for gaine he might well do it as every one is permitted to bake or brew c. for their own use c. but it seemed to be implyed by the same averment that it was his trade by which he got his living viz. by selling the commodities of his Trade and not that he made them onely for his own use For it is not properly said that one useth a manual occupation when he onely doth it for himselfe as he that brews or bakes for his own use cannot be properly said to use the occupation of Brewer or Baker c. Malice praepence implied in indictments 12 If one kill a Minister of Iustice in the execution of his office Co. lib. 9 67. b. 3. Mackallies case the Indictment may well be general viz. that the Prisoner felonicè voluntariè ex malitia sua praecogitata c. percussit c. without alleadging any special matter for the evidence will well maintain the Indictment inasmuch as in this case the Law implies malice praepence So if a Thiefe which offers to to rob a true man kils the true man in resisting the Thiefe this is murder of malice praepence or if one kill another without any provocation or without any malice praepence that can be proved the Law adjudgeth that to be murder and implies malice And in both these cases they may be indicted generally that they killed de malice praepence for malice implied by the Law being given in evidence is sufficient to maintaine the generall indictment And so it was adjudged in Mackalleyes case for killing Fells a Serjeant of London Nuper implies the time past 13 If a man plead Co. l. 10. 59. b. 1. The Bishop of Sarums case Co. l. 10. 75. b. 2. The case of the Marshalsea that such a grant made per Iohannem nuper Episcopum Sarum c. was void These words nuper Episcopum c. imply and import that now he is not Bishop of Sarum Jurisdiction of a Court prohibited 14 When a Court is prohibited by Statute to hold plea of certaine causes if one be sued there contrary to that Statute he may not onely have a Supersedeas in the nature of a prohibition to cause the Iudge to cease proceeding but likewise shall have an action upon that Statute against the party that sues contrary to the same Statute notwithstanding that it is in course of legal proceeding and that the words of the Statute do not expressely give any such action to the party for that way of reliefe is a benefit which as a consequent is implied in every such Statute Co. lib. 11. 76. a. 4. Magdalen Colledge case 15 By the Statute of 18 Eliz. cap. 2. Good conâ—â—â—â—ration impâ—â—ed no conveyances of the Quéen are confirmed but such as are for the satisfaction of debts c. and other good consideration for so it is in the preamble and although good is omitted in the body of the Act yet it is necessarily implyed not onely by the connexion of the pâ—eamble to the purview but also by this word consideration which as in 16 Eliâ— Dyer 336. is a cause or occasion meritorious requiring a mutual recompence in Déed or in Law Co. lib. 11. 86. b. 3. The case of Monopolies 16 It appears by the Writ of Ad quod damnum in F. N. B. 222. Monopoliâ—â— that every gift or grant of the King hath this condition either expresly or implicitely annexed unto it Ità quòd patria per donationem illam magis solito non oneretur sèu gravetur And therefore every grant made in grievance or prejudice of the Subject is void Co. l. 11. 98. a. 4. James Bags case 17 There is a condition in Law tacitè annexed to the fréedome or liberty of a Citizen or Bâ—rgesse which if he break A Freemaâ— a Corporaâ— he may be dis-infranchised as if he commit any act which is against the duty and trust of his fréedome and to the prejudice of the City or Burrough and against the Oath which he tooke when he was made Frée-man these are causes of his removal Fitz. N. B. 134. f. 18 If the Tenant holds of his Lord by Homage Ancestrel Homage Ancestrel impâ— a warranty and is impleaded Albeit he hath no charter of it yet shall he have a Writ of Warrantia Cartae against the Lord for that tenure implies a Warranty Fitz. ibid. g. 19 If a man without deed makes a gift in taile Warranty aâ—plied or a lease for life rendring rent and after he is impleaded in an action wherein he cannot be vouched In that case he shall have a Writ of Warrantia cartae against the Donor or Lessor or his heire that hath the reversion for the reversion and the rent reserved makes a Warranty in Law by the Statute of Bigamis cap. ultimo albeit he hath no déed of it Fitz. ibid. h. 20 If a man grant land by these words Dedi concessi Dedi implies a warranty c. he shall be bound to Warranty during his life but not his heirs unlesse he be thereunto especially charged by the Grantor for these words Dedi concessi c. imply a Warranty and if the Feoffée be impleaded he shall have a Writ of Warrantia cartae against the Feoffor by force of those words in the deed c. 4. Dyer 26. 171. 28 H. 8. 21 Russell brings an action upon the case against A. for saying that he was a false Thiefe An action of the case for words and that such a night he would have robbed him to his damage c. And A. comes Et defend it vim c. quoad propalationem c. querens non fuit damnum in forma qua c. to which plea the Plaintiff demurred in Law and Iudgement was given for him because by implication the words are confessed and no damage can be more grievous then taking away a mans good name and a Writ of Inquiry was awarded 22 Vide Max. 19. Pl. 1. Dyer 41. 4. c. 30 H. 8. 23 In a Replevin the Plaintiff is non-suit Replevin Second deliverance whereupon the Defendant had a Returno habendo but about the same time the Plaintiff prays a Writ of second deliverance and had it and both the Writs were in the Sheriffs hands at one time unserved In this case the Writ of
Will is determined though the Lord cometh in above the lease for life or for years the custodie or any other particular interest or tenancy at will yet shall he be compelled to make admittance according to the surrender And so it was holden in the Earl of Arundels case in 17 Eliz. See more of this Co. l. 4. in the Copihold cases Tâ—in 1. Jac. Inter Shepland and Ridler in Repl. in Co. Ba. the case of Guardian in soccage adjudged Co. ib. 76. b. 1. 10 In many cases the heire shall be in ward The Lord that have Wardship though not dying seised albeit the Tenant died not seised c. nor in the Homage of the Lord As if the Tenant maketh a feoffment in fee upon condition and the Feoffor dieth after his death the condition is broken the heire within age entreth for the condition broken In this case the heire shall be in ward and yet the Feoffor had no estate or right in the land at the time of his death but onely a condition and which was broken after his decease but because the condition restoreth the Tenant to the land in nature of a descent for he shall be in by descent by the same reason shall it restore the Lord to the wardship c. Co. ib. 89. b. 4. 11 If a stranger entreth into the lands of the Infant within age of 14 years taketh the profits of the same A stranger Guardian is soccage accountable the Infant may charge him as Guardian in Soccage And this doth well agrée with the writ of accompt against a Guardian in soccage for the words be Idem B. praefato A. rationabilem compotum suum de exitibus pervenientibus de terris tenementis suis in N. quae tenentur in soccagio quorum custodiam Idem B. habuit dum praedicta A. infra aetatem fuit dicitur and true it is that in judgement of Law he had the custodie of the lands and is called Tutor alienus whereas the right Guardian in Soccage is called Tutor proprius Neither is it any plea for him to deny that he is prochein amy but he must answer to the taking of the profits as Littleton saith Sect. 124. Co. ibid. 108. a. 4. 12 If one holdeth land of a common person in grosse as of his person and not of any Mannor Tenure in Capite c. and this Seignory escheateth to the King yea though it be by attainder of Treason he holdeth of the person son of the King as he held before of the person of the Subject and not of the King in Capite because the originall tenure was not created by the King And therefore it is directly said that a tenure of the King in Capite is when the land is not holden of the King as of any Honour Castle Mannor c. But when the land is holden of the King as of his Crown Vide Dyer 44. 28. c. 30 H. 8. Mag. Car. cap. 31. 25. 4. Advowson appendant 13 An Advowson is appendant to the Mannor of Dale Co. ib. 122 a. 1. of which Mannor the Mannor of Sale is holden the Mannor of Sale is made parcel of the Mannor of Dale by way of Escheat In this case the Advowson is still onely appendant to the Mannor of Dale Common appendant 14 If Common appendant be claimed to a Mannor Co. ib. 122. a. 4. yet in rei veritate it is appendant to the Demesnes and not to the services and therefore if a tenancy escheat the Lord shâ—ll not increase his Common by reason of that An Assise for â—ent after disâ—eisin 15 If the Tenant rescue the Distresse Co. Inst pars 1. 160. b. 3. and after is disseised of the tenancy yet an assise lyeth against him for the Disseisin done of the rent by the Rescous c. Coparcenary â—n other â—ands 16 If one of the Parceners take Baron and die Co. ib. 174. b. 4. c. the Baron being Tenant by the Courtesie is compellable by a writ de partitione facienda to make partition and shall be joyntly impleaded with the other Coparcener for he doth continue the state of Coparcenary as the other Parcener doth c. So likewise if there be two Coparceners and one of them doth alien in fée the Alienée and the other Coparcener are Tenants in common and several writs of Praecipe shall be brought against them and yet the Parcener may have a writ of partition against the Alienée at the Common Law which is a stronger case than the case put of Tenant by the Courtesie The heire in Hotchpot 17 If the Donées in Frankmarriage die before the lands be put into Hotchpot with the other Coparcener Littl. §. 270. Co. ib. 178. a. the heire of the Donées may well do it Descent shall not take away entry 18 If a Dissesor make a lease to a man and to his heirs during the life of I. S. and the Lessée dieth Co. ib. 239. a. 3. living I. S. this shall not take away the entry of the Disseisée because he that died seised had but a Frée-hold and heirs in that case were added to prevent an occupant For an heire in that case shall not have his age c. as it was adjudged in Lambs case P. 16 Eliz. in Co. Ba. Right left after recovery 19 If the Disseisée disseise the heire of the Disseisor Co. ib. 266. a. 4. albeit the heire recover the land against the Disseisée yet shall he leave the proceeding right in the Disseisée So if a woman that hath right of Dower disseise the heire and he recover the land against her yet shall he leave the right of Dower in her Attornment 20 If either the Grantor or the Grantée of a Seigniory rent reversion Co. ib. 315. a. 4. remainder c. die before attornment the attornment is thereby countermanded But albeit the Tenant of the land die or grant over his estate to another yet may he that hath his estate either by descent or grant attorn at any time Wast mainâ—einable 21 Regularly when the reversion is devested Co. ib. 356. a. 4. the Lessor cannot have an action of Waste yet in some special cases an action of Waste shall lie albeit the Lessor had nothing in the reversion at the time of the Waste done As if Tenant for life make a feoffment in fée upon condition and Waste is done and after the Lessée re-enter for the condition broken In this case the Lessor shall have an action of Waste So likewise if Lessee for life be disseised and Waste is done the Lessée re-enters Here also an action of Waste shall be maintained against the Lessee c. 5. Co. ibid. 366. b. 3. 22 A warranty that commenceth by disseisin is properly Warranty that begins by disseisin when the disseisin is done immediately to the heire that
50. E. 3. nu 123. And it hath béen attempted in Parliament to give an action of accompt against the Executors of a Guardian in Soccage but never could be effected â—â—nity and 〈◊〉 charge 3 An annuity is a yearly payment of a certain sum of money granted to another in fée for life or yeares Co. ib. 144. b. 3. and charging the person of the Grantor onely but doth not enure to the Grantée onely for his heire and his and their Grantée shall have a writ of Annuity but if a Rent charge be granted to a man and his heires he shall not have a writ of Annuity against the heire of the Grantor albeit he hath assets unlesse the grant be for him and his heirs â—â—cisor â—ease 4 If a Disseisor make a lease for life the remainder in fée Co. ib. 275. b. 2. and the Disseisée releaseth unto the tenant for life all his right this release shall enure to him in remainder because as to this and some other purposes they are but as one Tenant in Law Howbeit if the Disseisée release all actions to the Tenant for life after the death of the Tenant for life he in the remainder shall not take benefit of this release for it extended onely to the Tenant for life and ended with his life as it was adjudged in Edw Althams case Co. l. 8. 148. So also if the Disseisor make a lease for life and the Disseisée release all actions to the Lessée this enureth not to him in the reversion c. â—taile in an â—cale 5 In a writ of right when the tryall is by Battaile Co. ib. â—94 b. 4. neither the Tenant nor Demandant shall fight for themselves but shall finde each of them a Champion to fight for them because if either the Demandant or Tenant should be slain no judgement could be given for the lands and tenements in question It is otherwise in an appeal for here the Defendant shall fight for himselfe and so shall the Plaintiff also because there if the Defendant be slaine the Plaintiff hath the effect of his suit viz. the death of the Defendant c. â—â—mment in life of â—â—tor and â—â—ntee 6 Vpon the grant of any thing whereunto attornment is necessary Co. ibid. 309. a. 4. as of a Seigniory rent reversion remainder c. the attornment must be made during the lives both of the Grantor and also of the Grantée for if either of them die before attornment the grant is void And the reason hereof is for that every grant must take effect as to the substance thereof in the lifetime both of the Grantor and of the Grantée whereas in this case if the Grantor dieth before attornment the seigniory rent reversion remainder c. descends to his heire and therefore after his decease the attornment cometh too late so likewise if the Grantée dieth before attornment an attornment to the heire is void for nothing descended to him and if he should take he should do it as a purchasor whereas heires were added but as words of limitation of the estate and not to take as purchasors c. Co. lib. 2. 36. a. Sir Rowland Heywards case 7 If a man for good consideration bargain sell Election and demise a reversion of land to the use of another for yeares and the Grantor or Cestuy que use die before attornment or enrollment the grant is in this case void or good at the election of Cestuy que use void if taken at the Common Law by way of grant because then there wants attornment but good by way of Bargain and Sale according to the Statute of Vses 27 H. 8. cap. 10. and because the Statute of 27 H. 8. cap. 16. of Enrolments extendeth not unto it for that no estate of Franktenement pâ—sseth but onely an estate for yeares And notwithstanding the death of the Grantor and Cestuy que use either one or both the Executors or Administrators of Cestuy que use have power as well as Cestuy que use himselfe to choose by which way they will claime whether by way of grant at the Common Law or by way of Bargain and Sale according to the said Statute of Vses because Cestuy que use had immediately upon the grant a present interest in him which hee or in case he had died his Executors before election might have assigned over and for that he claims one and the same thing by two several wayes it being in his or his Executors power to choose which of them they please It is otherwise where the election is to choose one of two several things by one and the same way or title for then nothing passeth before election and that election must be made during the life of the parties And therefore if I have thrée horses and I give unto you one of my horses in this case the election ought to be made in the life of the parties for in as much as none of the horses is given in certain the certainty and therefore the property commenceth by election And with this agrées Bullocks case in the 10 of Eliz. 281. The Bishop of Sarum having a great Wood of 1000 acres called Berewood enfeoffs another of an house and of 17 acres parcell of the said wood and makes livery in the house here nothing passeth of the wood before election and therefore his heire could not make election c. Co l. 8. 6â— a. 1. in Jo Trollops case 8 If the Bishop make Certificate and die before it be received Certificatâ— a Bishop the Certificate is worth nothing but the Successor ought to certifie a new Fitz. 55. Co. lib. 9. 87. a. 4. Pinsons case 9 An action of Debt lyeth not against Executors upon a contract for the eating and drinking of the Testator for that action dieth with him Wager of Law Executors because in that case the Executors cannot wage their Law as the Testator might have done for a man shall never have an action against Executors where the Testator might in his life time have waged his Law because they cannot have the benefit of Law-wager as he might have had c. 15 E. 4. Vide infrà 14. Co. lib. 11. 1. The Lord De la Wares case 10 Of the family of the Lord De la Ware there was Grandfather Dignity restrained foâ— life Father and Sonne the Grandfather 3 H. 8. was summoned to the Parliament by Writ and after in 3 E. 6. it was enacted that the father should be disabled during his life from claiming any dignity but was afterwards by Qu Eliz. called to the Parliament and sate in the House as a puisne Lord and died after whose death the sonne sued in Parliament to be restored to the place of his Grandfather viz. betwixt the Lord Berkley and the Lord Willoughby of Ersby and it was granted him For there was a diversity taken betwixt a disability personal and
action brought becomes no deed either by rasure addition or other alteration or by breaking the seale c. In this case although it were once a déed yet the Defendant may safely plead Non est factum for without question at the time of the plea which is in the present tense it was not his déed 36 H. 8. Dyer 59. in an action of Debt upon an obligation against Hawood the Defendant pleads non est factum and before the day of apparance of the Inquest the Mice had eaten the Label unto which the seale was fixed by the negligence of the Clerke in whose custody it was Here the Iustices charged the Iurors that if they found the déed to be déed of the Defendant at the time of the plea pleaded they should then give a special verdict which they did accordingly Co. l. 6 15. a. 1. Trepors case 9 If A. Tenant for life and B. in remainder in fée Lease and confirmation joyne in a lease to C. Immediately after the delivery of the déed it is the lease of A. during his life and the confirmation of B. and after the death of A. it is the lease of B. and the confirmation of A. according to the opinion of Dyer and Brown Mich. 6 7 Eliz. fol. 234 235. Co. l. 6. 22. Ambrosia Gorges case 10 If a man marry an Inheritrix of lands holden of the King in Capite and hath issue by her a Daughter and afterwards the Feme die A daughter iâ— ward during the life of her father the Daughter shall not be in Ward because she is yet heire apparant to her Father But if the Father take another Wife and hath issue a Son then shall the Daughter be in ward to the King because the Son is now his heire apparent and not the Daughter And no heire apparent shall be in ward during the life of the Father Co. l. 7. 18. a. Calvins case 11 The time of the birth of a man or woman is chiefly to be considered to make them a Subject borne or not Ante-nati Post-nati and is as it were of the essence of a Subject born For a man cannot be a Subject to the King of England unlesse at the time of his birth he was under the ligeance and obedience of the King of England albeit the Kingdome of the King under whose ligeance he was borne do afterwards descend to the King of England And this is the reason that Ante-nati in Scotland for that at the time of their birth they were under the ligeance and obedience of another King are aliens borne in respect of the time of their birth c. â—â—ttle in â—und tender 〈◊〉 late 12 Tender of the rent upon the land before the Distresse Co. l. 8. 147. 2. 4. The 6 Carpenters case makes the Distresse tortious tender after the Distresse and before the imparkment makes the detainer but not the taking tortious tender after the imparkment makes neither the one nor the other tortious for then it comes too late in regard the cause is then put to the tryall of the Law to be there determined 13 Distinguenda sunt tempora concordabis leges Co. l. 9. 16. b. Anna Bedingfeilds case â—state to the â—st issue in â—ile 14 Thomas Bowles in consideration of marriage with Anne Hide Co. lib. 11. 80. a. 4. Lewes Bowles case covenants to stand seised of the Mannor of D. to the use of himselfe and Anne for their lives and after to their first issue male and the heires male of his body and after to the heirs male of the bodies of Thomas and Anne c. In this case before issue had Thomas and Anne were seised of an estate taile executed sub modo viz. untill issue and then by operation of Law the estates were divided viz. Thomas and Anne became Tenants for life the remainder in taile to the issue the remainder to the heirs male of Thomas and Anne c. â—landerous â—ords 15 A man brings an action upon the Case for these slanderous words Thou art an arrant Knave a Cosener a Traitor Co. l. 10. 131. a. 1. Ja. Osborns case being all spoken together at one and the same time and upon not guilty pleaded the Iurors finde for the Plaintiff and assesse damages generally for all the words herein they did well for all those words taken together make but one scandal and albeit no action lieth for these words Thou art an arrant Knave a Cosener spoken apart by themselves yet being spoken at one and the same time and coupled with the other words and a Traitor which are indéed actionable they aggravate them and make them worse Howbeit if at one time the Defendant calls the Plaintiff Traitor and at another time he calls him arrant Knave and Cosener and the Plaintiff brings an action upon the Case and alleadgeth the said several words spoken at several times as several causes of action theâ—e if upon not guilty pleaded the Iurors assesse damages intirely judgement shall be arrested for all for he grounds his action upon two several scandals whereas one of them is not actionable c. 〈◊〉 perquisite â—y the purâ—hase of a â—illein 16 If a man hath a Villein in right of his wife Co. Inst pars 124. b. 1. and the Villein purchase land he shall have that perquisite in her right but if the Villeine purchase it after issue had then the Baron shall have the perquisite to him and his heires because by the issue he is entitled to be Tenant by the Courtesie in his own right 49 Quod prius est tempore potius est jure Vide Max. 62. Pl. 10. 19. â—emitter 1 One of the reasons of a Remitter is Co. Inst pars 1 347. b. 3. because that title which is first and more ancient is alwayes more sure and worthy And therefore many books in stead of Remitter say that he is En son primer estate or en son melior droit or en son melior estate c. or the like For Quod prius est verius est quod prius est tempore potius est jure c. Confirmation â—st best 2 The Lessée for life made a lease for thirty years Co. ib. 296. a. 3. and after the Lessor and Lessée for life made a lease for 60 years to another which lease for sixty yeares the Lessor did first confirme and after the Lessor confirmed the lease for thirty years and after the Tenant for life died within the thirty yeares In this case the lease for thirty yeares was determined by the death of the Tenant for life and the Lessée for sixty yeares might enter for that albeit the lease for sixty yeares was the later in time yet was it of greater force in Law because the Lessor who had power to confirm which of them he would did first confirm the second lease Inter Unwel and Lodge
32 If a man be seised of lands in the nature of Burgh English Privity of bloud and â—â—tle and hath issue two sons and die and the eldest son before any entry made by the youngest entreth into the land by abatement and dieth seised this shall not take away the entry of the youngest brother in respect of the privity of bloud betwixt them and for that they claim by one title c. Co. ibid. 33 If the father make a lease for life The like and hath issue two sons and dieth and the Tenant for life dieth and the youngest son entrude and die seised this descent shall not take away the entry of the eldest causa qua suprà But if the father had made a lease for years it had béen otherwise for that the possession of the Lessée for years maketh an actual free-hold in the eldest son c. Co. ib. 243. a. 2. 34 If two Coparceners make partition to present by turn The like and one of them usurp in the turn of the other this usurpation shall not put the other out of possession because of the privity betwixt them and for that they claim by one title and albeit they do severally present to the Ordinary yet the Church is not litigious for the same reason Co. ibid. 35 Vpon a writ of Diâ—m clausit extremum The like if the youngest son had been found heire the eldest had no remedie by the Common Law because they claimed by one title c. but now that is holpen by the Statute of 2 E. 6. cap. 8. Co. ib. 243. a. 3. 36 If two persons be in debate for tithes Tithes unâ—â— one Patâ—â—â— which amount to above the fourth part and one man is Patron of both Churches no Indicavit doth lie for that both Incumbents claim by one and the same Patron c. Fitz. N. B. 45. Mortdancester 37 Assisa mortis antecessoris non tenet inter conjunctas personas Co. ib. 242. a. 4 Littl. Sect. 398. sicut fratres sorores c. For these are privy in bloud but it lyeth against strangers and then damages are to be recovered against a stranger but not against his brother Privity of bloud and title 38 If a man seised of lands in fee hath issue two daughters Co. ib. 243. b. 2. and die the eldest enters into the whole and hath issue and dies seised and her issue enters and hath also issue and dies seised and the second issue enters sic ultrà Yet the youngest daughter or her issue as to her moity may enter upon whatsoever issue of the eldest notwithstanding such descent because they claime by one and the same title and by reason of the privity the entry of the eldest shall be accounted in law the entry of them both c. Howbeit in the same case if both the sisters had entred after the death of their father and had been seised and then the eldest sister had disseised the youngest of her moity and had issue and died seised and the lands had descended to the issue of the eldest sister then could not the youngest sister nor her heirs have entred c. causa qua suprà So also if one Coparcener enter claiming the whole and make a feoffment in fée and take an estate to her and her heirs and hath issue and die seised this descent shall take away the entry of the other sister because by the Feoffment the privity of the Coparcenary was destroyed c. In joyntenants privity in title 39 If lands be given to two and to the heires of one of them Co. ib. 247. b. 3. he that hath the Fée-simple shall not have an action of Waste upon the Statute of Glocester against the Ioyntenant for life but his heire shall maintain an action of Waste against him upon the same Statute so that the heire shall in this case maintain an action which the Ancestor could not And this is in respect of the privity betwixt the Ioyntenants and for that they claim by one and the same title whereas after the decease of the Ioyntenant that had the fée the Survivor claims by one title and the heir by another viz. the one by the first feoffment and the other by descent from his father c. 40 If land be let to a man for term of life the remainder for life Littl. §. 416. Co. ib. 252. a. 3. the remainder in fée Privity in estate and the Tenant for life alien in fée and he in the remainder for life make continual claim before the dying seised of the Alienée and after the Alienée dies seised and then he in the remainder for life dies before any entry made by him In this case he in the remainder in fée shall take advantage of the continual claim made by the Tenant in remainder for life and may enter upon the heire of the Alienée because the right of entry which the Tenant for life in remainder had gained by his entry shall go to him in the remainder in fée in respect of the privity of estate and so it is also of him in the reversion in fée in like case for he is also privy in estate c. The like 41 If two Ioyntenants be disseised Co. ibid. and the one of them makes continual claim and dieth the Survivor shall take benefit of his continuall claim in respect of the privity of their estate The like 42 If Tenant in tail the remainder in fée with warranty Co. ibid. have judgement to recover in value and dieth before execution without issue he in remainder shall sue execution for he hath right thereunto as privy in estate Seigniory per â—qua servitia 43 If a Seigniory be granted by fine to one for life Co. ibid. the remainder in fee the Grantee for life dieth he in the remainder shall have a per quae fervitia for hee hath right to the remainder and is privy in estate Co. ib. 265. b. 4. Littl. Sect. 491. Co. lib. 8. 151. b. 3. Edward Althams case Co. ib. 266. a. 1. Littl. §. 490. a. Infrà 114. Co. ib. 284. b. 3. 44 In a precipe quod reddat Privity of vouchee c. a release from the Demandant to the Vouchée is good and yet the Vouchée hath nothing in the land but the reason of that is because when the Vouchée entreth into the warranty he becometh Tenant to the Demandant and may render the land to him in respect of the privity betwéen them Howbeit a stranger cannot release to the Vouchée because in rei veritate he is not Tenant of the land And therefore if after the Vouchée hath entred into warranty and become Tenant in Law a collateral Ancestor of the Demandant releaseth to the Vouchée with warranty he shall not plead this against the Demandant for that release by a stranger is void because there wants
c. â—laim within â—â—e years by â—â—urdance â—c 112 Vpon a fine acknowledged of lande according to the Statute of 4 H. 7. cap. 24. Co. lib. 9. 106. a. Margaret Podgers case The Guardian by nurture or in soccage may enter in the name of the infant who hath right to enter into the same lands and this shall vest the estate in the infant without any commandment or assent because there is privity betwéen them So likewise he in the reversion expectant upon an estate for life or years or the Lord of a Tenant by copy c. may well enter within that Act in the name of the Tenant for life Lessée for years or Tenant by Copy and also in their own right as well to save their own Franktenement and Inheritance as also the said particular interests for the Lessor or the Lord are not Strangers because they are privies in estate And as the entries of those particular Tenants shall availe the Lessor and the Lord in those cases in respect of the privity of their estates So the entry of the Lessor or the Lord in the like cases in the names of the particular Tenants shall availe the same Tenants in regard of the privity of their estates and for the salvation of their several rights without any request precedent or assent subsequent for in these cases the Lessor and the Lord pursue the title and claime which they have to the inheritance by lawfull entry within the five years according to the saying contained in the said Act Howbeit he that is a méer stranger and hath no right shall not by his entry within the 5 years in the name of him that right hath avoid such a fine unlesse he have some request or commandment precedent or assent subsequent to authorize him to do it because the said Act hath appropriated the pursuit thereof by way of action or lawfull entry unto him that right hath either by interest or privity or else by request or Commandment precedent or assent subsequent c. Co. l. 10. 43. b. 4. Jennings case 113 At the Common Law recovery against Tenant for life with Voucher upon true warranty and recovery in value shall bind him in remainder as the books are in 19 E. 3. Recovery in value 20. 23. E. 3. Recovery against Tâ—â— for life ibid. 13. 44. Ass pl. 35. 5 E. 4. 2. And the reason hereof is because the particular estate and the estate in remainder in respect of the privity make but one estate and one warranty may extend to both and therefore the recompence in value shall also enure to both Co. l. 10. 48. a. 3. in Lampets case 114 Albeit the wisedome and policy of the Sages of our Law hath provided that no possibility right title Right and title may be released 〈◊〉 not transfered or thing in action shall be granted or assigned to strangers to avoid multiplicity of suits oppression of the people principally of the Terre-tenants and the subversion of the due and equal execution of Iustice Neverthelesse all rights titles and actions by the prudence and policy of the Law may be released to the Terre-tenant for the same reason of his repose and quiet and for the avoidance of suits and contentions and to the end every one should live in his calling with peace and plenty And therefore a right or title to the Frank-tenement or Inheritance be it in presenti or futuro may be released in five manners 1 To the Tenant of the Frank-tenement in Déed or in Law without any privity 2 To him in remainder 3 To him seised of the reversion without any privity but an estate cannot be enlarged without privity 4 To him that hath right onely in respect of privity As if the Tenant be disseised the Lord may release his Services in respect of the privity and right without any estate 5 In respect of privity onely without right As if Tenant in tail make Feofment in fée the Donée after the Feofment hath not any right and yet in respect of the privity onely the Donor may release unto him the rent and all services saving the fealty So also the Demandant in a precipe may release to to the Vouchée or to the Tenant after feofment c. Vide suprà 44. Co. l. 10. 92. a. 4. 93. a. b. Doct. Leyfields case 115 It is a Maxime in the Law that when he Release 〈◊〉 not plead 〈◊〉 where theâ—â— is privity without â—â—â—ing it that is party or privy in estate or interest or he that justifies in the right of him who is party or privy is forced to plead a Déed albeit he that is privy claimes but parcel of the original estate yet in that case he ought to shew the original Déed to the Court As if the King demiseth land to B. for life B. demiseth the same land to C. for years here if C. be impleaded he ought to produce in Court the Letters patents of the demise granted to B. because B. and C. are privies in estate Vide William Poles assise 3 H. 6. 20 21 22. which was in effect this A. by indenture enfeoffes B. of the Mannor of Dale rendring unto A. and his heirs 5 marks rent per annum with clause of distresse A. grants to C. for life xxvi s. viii d. per annum parcel of the same rent who being first seised and then disseised brings an Assise of the said parcel granted to him and because in the same Assise the Plaintife produced not the original indenture of the reservation of the whole rent made to his Grantor Iudgement was given against him albeit he claimed but parcel of the said rent and the reason thereof was in regard William Pole the plaintife was privy in the estate of the rent and claimed by the first grant And in the case above put the reason holds against the stranger in regard the Lessée might have bound the Lessor by Covenant to have shewed forth the Déed when occasion should have required In 35 H. 6. it was agréed that Guardian in Chivalry shall not plead a release made to his Tenant without shewing it forth So in 14 H. 8. 4. It was agréed by all that he who is privy in estate as Feoffée Lessée for years c. or that justifies as servant to him that is privy ought to shew the Déed to the Court which they plead c. And in Debt against the heir he shall not plead a release made to the Executors without shewing it for there is privity betwixt them and with this agrées the 13 E. 2. Monstrans des faits 4â— Howbeit on the other side where a man is a stranger to the Déed and claimeth not the thing comprised in the grant nor any thing out of it nor doth any thing in right of the Grantée as Bailife or Servant there he shall plead the Patent or Déed without shewing it If the Tenant plead the grant of the Lord with
Fée-simple by purchase because his heirs may inherit him And albeit it be true that the Statute extendeth to an estate in Frankmarriage acquired by purchase yet doth it extend also to all estates in tail as well by descent as by purchase Frankmarriage being put there but onely for an example Littl. §. 738. Co. ib. 387. a. 4. 28 If Tenant in Fée-simple that hath a warranty for life Warranty life either by an expresse warranty or by Dedi be impleaded and vouch he shall recover a Fée-simple in value albeit his warranty were but for term of life because in that case the warranty was annexed and did extend to the whole estate of the Feoffée in Fée-simple But if Tenant in taile let the Tenements for life the remainder to another in fée and a collateral Ancestor confirm the estate of the Tenant for life for the terme of his life onely with warranty and die and the Tenant in tail hath issue and die Here the issue is barred during the life of the Tenant for life by the Collateral warranty And in that case if the Tenant for life be impleaded and vouch he shall onely recover in value but an estate for life because the warranty was annexed and doth extend to that estate onely c. â—wo estates â—ade together â—f the same â—nd 29 If a man make a Charter of feofment of an acre of land to A. and his heirs Co. ib. 21. a. 2. and also another Déed of the same acre to A. and the heirs of his bodie and deliver Seisin according to the form and effect of both Déeds In this case he cannot take a Fée simple onely as some hold because Livery was made according to the Déed in tail as well as to the Charter in fée neither can the livery enure onely to the Déed of estate tail with a Fée simple expectant because livery was made as well upon the Déed in Fée simple as the Déed in tail And therefore others hold that in this case it shall enure by moities viz. to have an estate tail in the one moity with the Fée simple expectant and a Fée simple in the other moity And so the livery shall work immediately upon both Déeds And this last séemes to be the opinion of Coke himselfe being put last according to his own rule which he often delivers in this part of his Institutes â—ower of â—ings intire 30 Albeit of many Inheritances that be intire whereof Co. Inst pars 1. 32. a. 1. no division can be made by metes and bounds a woman cannot be endowed of the thing it selfe yet a woman shall be endowed thereof in a special and certaine manner As of a Mill a woman shall not be endowed by metes and bounds nor yet in common with the heir but either she may be endowed of the third toll-dish or de integro molendino per quemlibet tertium mensem And so of a Villain either the third dayes work or every third wéek or moneth A woman shall also be endowed of the third part of the profit of Stallage of the third part of the profits of a Faire of the third part of the profits of the Office of the Marshalsie of the kéeping of a Park of a Dove-house of a Piscary viz. tertiam piscem vel jactum retis tertium Of the third presentation of an Advowson A Writ of Dower also lieth de tertia parte exituum provenientium de custodia Gaolae Abathiae Westm And herewith agréeth reverend antiquity De nullo quod est sua natura indivisibile secationem sive divisionem non patitur nullam partem habebit sed satisfaciat ei ad valentiam Of the third part of the profits of Courts Fines Heriots c. Also a woman shall be endowed of tithes and then her surest way is to take the third sheaf for what land shall be sown is uncertaine â—ower recoveâ—d by parts 31 Regularly the Feme ought to be endowed of an intire third part in severally by metes and bounds Co. ib. 32. b. 1. Littl. §. 36. And yet if a man solely seised of lands in Fee take a wife and enfeoffe eight persons and dies a Writ of Dower is brought against those eight persons and two confesse the action and the other six plead in barre and descend to issue here the Demandant shall have judgement to recover the third part of two parts of the lands in eight parts to be divided and after the issue is found for the Demandant against the other six the Demandant shall have also judgement to recover against them the third part of six parts of the same land in eight parts to be divided â—nsent of â—iage equal 32 If a man of the age of 14 years marry a woman of the age of ten Co. ib. 79. b. 1. at her age of twelve he may as well disagrée as she may albeit he were of the age of consent because in the contracts of matrimonie either both must be bound or equal election of disagréement given to both and so è conversò when the woman is of the age of consent and the man under â—elivery of â—ods by a â—nkrupt 〈◊〉 good El. 7. 33 Delivery of goods by the Bankrupt to a Creditor after the Commission sealed according to the Statute of 13 Eliz. cap. 7. Co. l. 2. 25. b. 1. The case of Bankrupts shall not be of force to avoid proportionable distribution of the same goods together with all the rest unto the other Creditors which are willing to submit to the order of the Commissioners in that behalfe for the Statute saith that the distribution shall be To every one of the Creditors c. rate and rate like according to the quantity of his or their debt So that one shall not prevent the rest but all may be in equali jure according to that of Cato Ipsae etenim leges cupiunt ut jure regantur Co. ibid. 35 H. 8. tit Testaments Br. 119. 34 A man holds thrée Mannors of thrée several Lords by Knight Service each Mannor of equal value here Devise of 3 Mannors â—â—den by Knigâ— Service he cannot devise two of the Mannors and leave the third to descend according to the generalty of the words of the Statutes of the 32 and 34 H. 8. of Wills For then he should prejudice the other two Lords but by a favourable and equal construction of the said Statutes he hath power to devise onely two parts of each Mannor So that equality amongst them shall be observed 4 E. 3. tit Ass 178 Co. ibid. 35 The Lord of a Mannor shall not approve it all Approvemeâ— albeit he leave sufficient Common in the lands of other Lords according to the Statute of Merton cap. 4. Co. ib. 48. E. 3 5. 36 In Dower Voucher in Dower if the heir be vouched in three several Wards within the same County execution shall be had against one onely but
he recovered the Mannor whereunto the Advowson was appendant And so it is also of all other Inheritances regardant appendant or appurtenant a man shall never be remitted to any of them before he recontinueth the Mannor c. whereunto they are regardant appendant or belonging according to that of Britton Nul ne poit clamar droit en les appurtenances ne en les accessories que nul droit ad en le principal And also that of Bracton Item excipi potest c. quà mvis jus habeat in tenemento pertinentiis primò recuperare debet tenementum ad quod pertinet advocatio tunc postea presentet non ante c. Et de haec materia in Rotulo Sancti Mich 3. H. 3. in com Norf. de Tho. Bardolf c. But on the other side if a man be remitted to the principal he shall also be remitted to the appendant or accessory albeit it were severed by the Discontinuée or other wrong-doer And therefore if there be Tenant in taile of a Mannor whereunto an Advowson is appendant and he enfeoffeth A. of the Mannor with the appurtenances A. re-enfeoffeth the Tenant in taile saving to himself the Advowson Tenant in taile dieth his issue being remitted to the Mannor is consequently remitted to the Advowson although at that time it was severed from the Mannor Co. ib. 363. b. 3. So it is in the same case if Tenant in taile be disseised and the Disseisor suffer an usurpation For here also if the Disseisor enter into the Mannor he is likewise remitted to the Advowson 15. Co. ib. 355. b. 4. 13 In any action for the recovery of the principal Judgement 〈◊〉 the principal draweth the accessories together with the accessory a man shall never release the principal have judgment of the accessory In an action of waste if the Defendant confesse the action the Plaintiff may have judgement for the place wasted and release the damages but he cannot have judgement for the damages and release the place wasted because the place wasted being in the realty is the principal and the damages being in the personalty are but as accessories for without judgement for the principal the Plaintiff can have no title to the accessory but having judgement for the principal he is thereby also entitled to the accessories and therefore may release them c. Co. ib. 378. a. 4. 14 A man letteth lands for life upon condition to have fée Warranty â—creaseth according to tâ—â— estate and warranteth the land in forma praedicta afterwards the Lessée performeth the condition whereby the Lessée hath fée Here the warranty shall extend and encrease according to the estate And so it is likewise albeit the Lessor had died before the performance of the condition for then also the warranty shall rise and increase according to the state and yet the Lessor himself was never bound to the warranty howbeit it hath relation from the first livery c. Co. ib. 363. b. 3. 15 If Tenant in tail be of a Mannor whereunto an Advowson is appendant the Tenant in taile discontinueth in fée the Discontinuée granteth away the Advowson in fée and dieth the issue in taile re-continueth the Mannor by recovery he is thereby remitted to the Advowson and shall present when the Church becometh void c. 12. Co. ib. 384. b. 4. 42 E. 3. 6. per Finchden 16 It hath béen adjudged Acquital follows the 〈◊〉 that where two Coparceners made partition of land and the one made a covenant with the other to acquit her and her heirs of a suit that issued out of the land the Covenantée aliened In this case the Assignée shall have an action of Covenant and yet he was a stranger to the Covenant because the acquital as accessory did run with the land which was the principal Co. ib. 385. a. 2. 17 If a man make a feoffment in fée of two acres to one Warranty follows the fee. with warranty to him his heirs and assignes if he make a feoffment of one acre that Feoffée shall vouch as Assignée for the warranty as accessory follows the land as principal And therefore there is a diversity betwéen the whole estate in part and part of the estate in the whole or in any part As if a man hath a warranty to him his heires and assignes and he make a lease for life or a gift in taile the Lessée or Donée shall not vouch as Assignée because he hath not the estate in Fée-simple whereunto the warranty was annexed but the Lessée for life may pray in aide or the Lessée or Donée may vouch the Lessor or Donor and by this meanes they shall take advantage of the warranty But if a lease for life or a gift in taile be made the remainder over in fée such a Lessée or Donée shall vouch as Assignée because the whole estate being out of the Lessor the warranty by consequent doth follow it and the rather because the particular estate and the remainder doe in judgement of Law as to this purpose make but one estate c. Grant of the Mannor passeth all liberties and incidents 18 If the King grant to one and his heires Bona Catalla felonum Co. l. 3. 32. b 3. in Butler and Bakers case Per Anderson Periam sur conference ewe ove divers auters Iustices 25 Eliz. in Bakers case fugitivorum or utlagorum fines amerciamenta c. within such a Town or Mannor In this case he cannot devise them to another nor leave them to descend for a third part according to the Statutes of 32 and 34 H. 8. of Wills because they are of no yearly value For the first branch of the 34 H. 8. ordains that the hereditaments devisable by those Statutes should be of a clear yearly value c. And therefore those Statutes extend not to such kind of hereditaments Neverthelesse if a man be seised of a Mannor unto which a Léet or Waife and Stray or any other hereditament which is not of any yearly value is appendant or appurtenant Here by the devise of the Mannor with the appurtenances they shall passe as incidents to the Mannor For in as much as those Statutes by expresse words enable him to devise the Mannor by consequent they enable him to devise the Mannor with all incidents and appendants unto it And it was never the intention and meaning of the makers of those Statutes that when the Devisor hath power to devise the principal he shall not have power to devise that which is incident and appendant unto it but that the Mannor c. shall be dismembred and fractions made of things which by lawful prescription have béen united and annexed together c. Principal and accessorie 19 If there be principal and accessory Co. l. 4. 43. b. 2. in Syers case Co. ib. 44. a. 1. in Bibiths case and the principal is pardoned or
reserving a rent to one of them the rent shall enure to them both because the reversion whereunto the rent is incident remains still in jointure unlesse the reservation be by déed indented and then he onely to whom it is reserved shall have it c. Vide Dyer 308. 75. Winters case Damages shal be several amongst Copâ—rceners 16 If thrée Coparceners recover land and damages in an Assise of Mortdancester albeit the judgement be joint Co. ib. 198. a. 4. viz. that they shall recover the land and damages yet the damages being accessory though personal do in judgement of Law depend upon the Frée-hold being the principal which is several And although the words of the judgement be joint yet shall it be taken for distributive And therefore in that case it two of them die the entire damages do not survive but the third shall have execution according to her portion c. A right may be forfeited 17 The right of a particular estate which is as accessory may be forfeited as well as the particular estate it selfe which is the principal and he that hath but a right of a Remainder or reversion Co. ib. 252. a. 2. shall take benefit of such a forfeiture As if Tenant for life be disseised and levy a fine to the Disseisor he in the reversion or remainder shall presently enter upon the Disseisor for the forfeiture So it is also if the Lessée after the disseisin had levied a fine to a stranger For albeit to some respects Partes finis nihil habuerunt yet is it a forfeiture of his right Co. ib. 252. b. 1. 18 The entry of a man to re-continue his inheritance or frée-hold Several disseisin must have several entries and actions must insue his action for recovery of the same As if thrée men disseise me severally of thrée several acres of land being all in one County and I enter in one acre in the name of all the thrée acres this is good for no more but for that acre which I entred into because each Disseisor is a several Tenant of the frée-hold as I must have several actions against them for the recovery of the land so mine entry must be several And so it is if one man disseise me of thrée acres of ground and letteth the same severally to thrée persons for their lives c. There the entry upon one Lessée in the name of the whole is good for no more than that acre which he hath in his possession But if the Disseisor had letten severally the said thrée acres to thrée persons for years there the entry upon one of the Lessées in the name of all the thrée acres shall re-continue and revest all the thrée acres in the Disseisée for that the Disseisée might have had one Assise against the Disseisor because he remained Tenant of the Frée-hold for all the thrée acres and therefore in that case one entry shall serve for the whole So if one disseise me of one acre at one time and after disseise me of another acre in the same County at another time in this case my entry into one of them in the name of both is good for that one Assise might be brought against him for both the Disseisins But if I enfeoff one of one acre of ground upon condition and at another time I enfeoff the same man of another acre in the same County upon condition also and why the conditions are broken and entry into one acre in name of both is not sufficient for that I have no right to the land nor action to recover the same but a bare title and therefore several entries must be made into the same in respect of the several conditions But an entry into one part of the land in the name of all the land subject to one condition is good although the parcels be several and in several Towns And so note a diversity betwéen several rights of entry and several titles of entry by force of a condition Co. ib. 387. a. 4. 19 If Tenant in Fée-simple that hath a warranty for life Warranty either by an expresse warranty or by Dedi be impleaded and vouch he shall recover a Fée-simple in value albeit his warranty were but for term of life because the warranty extended in that case to the whole estate of the Feoffee in Fée-simple But if Tenant in taile make a lease for life the remainder in fée c. And a collateral Ancestor confirms the estate of the Tenant for life with warranty for term of life of the Tenant for life and dies In this case if the Tenant for life be impleaded and vouch he shall recover in value but an estate for life because the warranty doth extend to that estate onely Co. Inst pars 1. 392. b. 4. 20 If a man make a gift in taile with warranty All accessaries to an estate taile are intailed as well as the estate it selfe this warranty is also entaileâ— And therefore a release made by Tenant in taile of the warranty shall not barre the issue no more than his release shall barre the issue to bring an attaint upon a false verdict or a writ of Errour upon an erroneous judgement given against the father Neither yet can his gift barre the issue of the déed that created the estate taile nor of any other déed necessary for defence of the title For these are accessaries to the estate taile and are as firmly entailed as the estate it self c. Co. l. 8. 79. b. 4. Wiat Weilds case 21 A man is seised of a Messuage and forty acres of land Common apportionable unto which he can prescribe to have Common in 200 acres of waste belonging to the Mannor of Dale for all the cattle levant and couchant upon the said Messuage and 40 acres In this case if he sell five acres parcel of the forty whether the Common were appendant or appurtenant the Alienée shall enjoy a proportionable part of the Common as belonging to the said five acres For albeit at the beginning there was but one Common attending upon one tenancy yet in as much as it is attendant upon a tenancy that is severable and upon every part thereof the Common shall be severable as well as the tenancy so that the Alienée of part of the tenancy shall enjoy also a part of the Common answerable to that part of the tenancy c. So likewise if he that hath such a Common appertaining to his land as aforesaid demise parcel of the land to another the Lessée shall have common for his beasts levant and couchant c. Joynt coveâ—ants relate â—o joynt inteâ—ests 22 S. and his wife bring an action of Covenant against B. upon Covenant made by Indenture tripartite Co. l. 5. 18. b. 4. Slingsbies case in which B. covenants with the Plaintiffs and also with I. S. and his wife Et assignatis suis cum quolibet
if the estates be not equal albeit the parties agrée Exchange yet is the exchange void for the agréement of the parties cannot make that good which the Law maketh void Co. ib. 53. b. 2. 7 If a man make a lease for life and by déed grant Waste that if any waste or destruction be done that it shall be redressed by neighbours and not by suit or plea Yet in this case an action of waste shall lie because the place washed cannot be recovered without a plea. Co. ib. 62 b. 3. Littl § 82. 8 If a man let lands to another to hold to him and his heirs at the will of the Lessor these words to the heirs of the Lessee are void Lease to one and his heirs at will because in this case if the Lessee die and his heir enter the Lessor shall have an action of Trespasse against him and that before the Lessor enters for that by the death of the Lessée the lease is absolutely determined Co. ib. 66. b. 2. 9 In the making of Homage the saving for other Lords Salve la foy Homage que se doy c. a mes autres Seigniors is not of necessity but onely added for explanation sake For the homage is referred onely to the Tenements which the Tenant holdeth of that Lord to whom he doth the Homage Co. ib. 191. a. 2. 30 Ass Pl. 8. Co. l. 4. 73. b. 1. Boroughs case 10 Lande given to two Et uni eorum diutius viventi Jointenancy they make partition and one of them grants his part to a stranger In either of these cases if one of them die the Lessor shall have again the moity of him that dieth for Uni eorum diutius viventi are but idle words because without them the Iointenant by course of Law is to have all in case he survive Finch 24. Co. ib. 212. b. 4. 11 Where the condition is certain viz. for the payment of 20 l. or the like the Obligor or Feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole because it is apparent Payment of a summe that a lesser sum of mâ—â—ey cannot be a satisfaction for a greater Littl. § 345. Co. ib. 213. a. 2. 12 If a man enfeoff another upon condition A sum reserved to a strâ—â—ger no renâ— that he and his heirs shall render unto a stranger a yearly rent of 20 s. c. and that if he or his heirs fail to pay it that then it shall be lawful for the Feoffor and his heirs to re-enter Albeit this reservation be by indenture whrein the 20 s. reserved is named to be an annual rent yet is it never the more a rent for that because although the stranger be seised of it and then failer is made yet can he not have Assise for it and for that the estate moved not from the stranger neither yet was he party to the déed c. But such a sum reserved in that case is onely a pain set upon the Tenant which if he pay not c. the Feoffor may enter c. Co. ib. 224. b. 2. 13 If a gift in tail be made to a man and to the heirs of his body Issue falling the Dâ—â—â—â— may â—â—ter and if he die without heirs of his body that then the Donor and his heirs shall re-enter this is a void Condition For when the issues faile the estate determineth by the expresse limitation and consequently the adding of the Condition to defeat that which is determined by the limitation of the estate is void and in that case the wife of the Donée shall be endowed c. Littl. § 446. Co. ib. 265. a. 14 These words in a release Release of future inteâ—â—â—â— void Quae quovismodo in futurum habere potero are void in Law For no right passeth by a release but onely the right which the Releasor hath at the time of the release made for if there be father and sonne and the father is disseised and the son living the father releaseth by his déed to the Disseisor all the right that he hath or may hereafter have in the land without clause of warranty c. and after the father dies c. the son may lawfully enter upon the possession of the Disseisor notwithstanding such release because he had no right in the land in the life of his father but the right descended unto him after the release made by his fathers death c. A perpetuity void 15 A man gives land to Mary and Joane two sisters Et haeredibus de corporibus eorum legitime procreatis by which they had a joynt estate for life and several Inheritances and the Donor intending Co. l. 1. 84. b. 3. in Corbets case per Anderson 8 Ass Pl. 33. that neither of them should break the joynture but that the Survivor should have all per jus accrescendi added this clause sub hac forma quòd illa quae illarum diutius vixerit tenebit terram illam integram c. But in as much as his intent was contrary to Law for that cause if the joynture were severed by fine levied the Survivor shall not have the part so severed by reason of the said clause which he did insert of his own conceit and imagination repugnant to law and reason c. A will repugnant void 16 For the construction of Wills Co. l. 1. 85. b. 4. in Corbets case this rule was taken by the Justices in the argument of Corbets case in the first Report that an estate which by the rules of the Common Law cannot be conveyed by act executed in the life of the Devisor by advice of Counsel learned in the Law cannot be devised by his last Will he being intended at that time to be inops consilii As if a man devise land to another for ever there the Devisée hath fée because such an estate may be conveyed by act executed c. But if he devise farther that if the Devisée doth not such an act that another shall have the land to him and his heirs this were void because such a limitation if it were by act executed would be void c. An authority revocable 17 If a man be bound in an Obligation to stand to abide observe Co. l. 8. 82. a. 2. in Vinyors case c. the rule arbittement c. yet he may countermand it for a man cannot by his act make 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 assigne Auditors to take an accompt or make a Factor or submit my selfe to an arbitrement albeit these are made by words expresly irrevoâ—able or if I grant or am bound that all these shall stand irrevocably yet they may
Law to give him cause of action and it is alwayes intended that every one will shew the best of his case c. But when the barre of the Defendant is insufficient in substance and the Plaintiff replies and shews the truth of his case whereby he produceth no matter against himself but matter explanatory or peradventure not material there the Court shall judge upon the whole record and the Count being good for insufficiency of the Barre without any regard to the replication judgement shall be given for the Plaintiff As if a man plead a grant by Letters Patents in Barre which are not sufficient the Plaintiff by replication sheweth another clause in the said Letters Patents which clause is not material the Defendant demurers in Law In this case judgement shall be given against the Defendant sic in simililibus Co. l. 8. 163. a. 3. in Black-amors case 7 Among the misprisions remedilesse by the Statutes made for the amendment of records this is one Misprisions 〈◊〉 Clerks that albeit the verdict upon issue tryed be given for the Plaintiff yet if upon the whole record it appears to the Court that the Plaintiff hath no cause of Action he shall never have judgement and so it hath béen often adjudged Co. l. 9. 53. a. 2. in Hickmots case 8 In debt upon an Obligation A release pleaded wiâ—â— exception the Defendant pleads a release of the Plaintiff c. which was in this manner A. doth acknowledge himselfe satisfied and discharged of all bonds debts c. made by B. the Defendant and it is agreed that A. shall deliver all such bonds as he hath yet undelivered unto B. except one bond of 40 l. not yet due wherein B. and C. stand bound to A. c. The Plaintiff replies that the obligation excepted and the obligation in Curia prolata are one and the same whereupon the Defendant demurres And in this case it was resolved that the exception extended to all the premisses because all the words before make but one intire sentence and the one depends upon the other For it is reason that when Bonds are satisfied that they should be delivered and exceptio semper ultimò ponenda est It was also reason that this bond of 40 l. should be excepted because it was not due when the release was made c. Co. l. 10. 99. b. 3. in Beawfages case 9 M. 10. Jac. upon a motion at the Barre it was resolved Bond taken by the Sheâ—â—â—â— not within 〈◊〉 the Statute 〈◊〉 23 H. 6. that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court c. was not void by the Statute of 23 H. 6. cap. 10. For the first branch of that Statute is that he shall let to baile by Writ or Bill c. which he could not do before as appears 19 H. 6. 43. The second shews the form of the body c. The third contains a penalty that if the Sheriff take an obligation in any other form c. than is there prescribed that it shall be voyd so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said Statute doth extend onely to obligations of such as are within their guard and custody and not otherwise Co. l. 10. 138. b 1 in Chester Mills case 10 Always such construction ought to be made of an Act af Parliament that one part thereof may agrée with the rest Exposition an Act. and that all may stand well together c. Co. l. 11. 44. a. 4 in Richard Godfreys case 11 The Iustices shall assesse the Fines of Copiholders upon the due consideration of all circumstances Copihold Fines Quà m rationabilis debet esse finis non definitur sed omnibus circumstantiis inspectis pendet ex Justiciariorum discretione And so it was adjudged in Communi Banco Inter Stallon Plaintiff and Brady Defendant P. 9. Jac. 1845. Rot. Co. l. 5. 79. b. in Fitz-herberts case 12 Tenant for life Warranty that comâ—ceth by dâ—sin the remainder to his sonne and heire apparent in taile by covin and agréement betwixt him and A. and B. to the intent to barre his son of his remainder by a collateral warranty makes a lease for years to A. who makes feoffment in fée to B. to whom the father releaseth with warranty and all this is by covin and consent betwixt the parties to the intent aforesaid After this the father dies and the warranty descends upon the sonne being then of full age Resolved per totam curiam that this warranty shall not barre the sonne because the feoffment of the Lessée for years is disseisin and the father himselfe is particeps Criminis and agréeing thereunto then albeit the release with warranty is made after the disseisin yet in as much as the disseisin was to such an intent and purpose the Law will adjudge upon the whole Act as it is agréed in 19 H. 8. 12. If a man disseise another with intent to make feoffment with warranty albeit he make the feoffment twenty years after the disseisin yet the Law will adjudge upon the whole act and the disseisin and warranty shall be coupled together according to the intent of the parties and therefore in such case the law will adjuge the warranty to begin by disseisin albeit they are made at several timâ—s So if a man make a lease of lands in two several Counties reserving an intire rent abeit the livâ—ry be made at several times first in one County and then in another yet the rent is issuing out of the lands in both Counties So likewise if a man make a charter of feoffment of certain lands with warranty and deliver the déed and after make livery of the land secundum formam cartae Here also the Law will adjudge upon the whole act and albeit the déed be delivered at one time and the livery of the land at another time and although a warranty ought to enure upon an estate yet upon the whole matter the warranty is good Eldest childe 13 The use of a recovery was limited by a Latin déed to the use of H. viz. he against whom the recovery was had for life Dyer 337. 36. 16 Eliz. the remainder Seniori puero de corpore H. in taile c. Afterwards H. covenants by an English Indenture to levy a fine to the use aforesaid wherein the use was limited to the use of the eldest child of the bodie of H. c. H. hath issue two children whereof the elder was a daughter and the younger a sonne And in this case it was adjudged that the daughter should have the land for albeit the word puero be indifferent to each sex and then the Male for dignity should be preferred yet because the English indenture hath declared the construction to be the eldest child the daughter shall have
of good pleading must be observed Co. Inst pars 1. 303. a. 2. which being inverted great prejudice may grow to the party tending to the subversion of Law Ordine placitandi servato servatur jus c. And therefore first in good order of Pleading a man must plead to the jurisdiction of the Court Secondly to the person and therein first to the person of the Plaintiffe and then to the person of the Defendant Thirdly to the Court Fourthly to the Writ Fifthly to the Action c. which order and form of Pleading you shall read in the ancient Authors agréeable to the Law at this day and if the Defendant misorder any of these he loseth the benefit of the former Again the Count must be agréeable and conform to the Writ the Bar to the Count c. and the Iudgment to the Count for none of them must be narrower or broader then the other c. 4 If the King make a Lease for years rendring Rent Co. l. 4. 13. a. 3. in Burroughs Case with condition to be void upon non-payment of the Rent Re-entry giâ—en to the King without demand the King shall take advantage of that condition without any demand For so long as the Reversion and Rent continue in the King the Law dispenseth with the demand as a thing un-decent it being against the dignity of the King to wait upon his subject or to demand any thing of him It is otherwise if the King grant over the Reversion for his grantée shall not take advantage of the Condition without demand of the Rent But in the other Case the Law which alwayes requireth that decorum and conveniencie be observed appoints the subject to attend upon his Soveraign and in that Case to perform the first Act although it be in the case of a Condition which trencheth to the destruction of his Estate Howbeit this is onely a personal Prerogative annexed to the person of the King for order and decencies sake and not in respect of the nature and quality of the Rent c. â—o demand 〈◊〉 the value of â—arriage 5 One Of the reasons which the Lord Cook addes in the Lord Darcies Case Co. lib. 6. 71. b. 2. in the Lord Darcies Case why the fingle value of the marriage of a Ward in Knight-service should be due to the Lord without demand is this If the Common Law saith he would have inforced the Lord to have made tender to his word c. it would also have appointed all necessary circumstances for the performance of such a tender as a certain place c. where it should be done and would not have left the Lord which is the superiour to finde out the Ward which is the inferiour and who may if he will take advantage of his own shifts when there can be no laches at all in the Lord c. 6 Amongst other reasons produced to prove None but of the houshold shall sue in the Marshalâ—â— that in Suits prosecuted in the Marshalsie Co. l. 10. 73. b. 2. in the Case of the Marshalsie one of the parties at least ought to be of the Kings houshold this is one because saith the Book it would not be comely that a Car-man or other Mechanical person should at his pleasure sue another in that Court and upon that occasion take liberty to appear in Aula Regis where that Court was originally kept absque vestimentis aulicis for those that appear in Court use to wear garments suitable to that place And therefore it is recorded by Luke the Evangelist cap. 7. vers 25. Coepit de Johanne dicere ad turbam c. Quid existis visuri hominem mollibus vestibus amictum Ecce qui vestitu magnifico utuntur c. sunt in Palatiis Regis c. And the Common Law regards conveniency and altogether dis-allowes indecorum and every thing done contra bonos more 's 77 Negatio Conclusionis est error in Lege Co. l. 10. a. 4. in Priddle and Nappers Case 1 In Attachment upon a Prohibition the Plaintiffe counts against A. proprietary of Tithes Lands in the Priors handâ— not tithable that heretofore the Prior of Montecute was seised of twenty Acres of Land c. before and at the time of the dissolution and held those Acres and also the Rectory simul semel c. Ratione cujus the Prior held the said Lands discharged of Tithes The Defendant conveys title to the Land c Absque hoc that the Prior held them discharged of Tithes c. Here the plea of the Defendant pro consultatione habenda for he is in a manner an Actor was insufficient because he traverseth a thing not traversable For the prescription of the unity ought to have béen traversed and not the Conclusion viz. Ratione cujus because as in Logick the conclusion of a Syllogisme cannot be denied but either the major or minor Proposition so neither in Law which is the perfection of Reason c. Co. ibid. 2 In a Praecipe Ancient Demesne one that pleads that the Mannor of Dale is ancient Demesne and that the Land in demand is parcel of the Mannor and so ancient Demesne there the Demandant cannot say that the Land in demand is not ancient Demesne because that is the Conclusion upon the two first preceding Propositions viz. 1. That the Mannor is ancient Demesne 2. That the Land in demand is parcel of the Mannor for sequitur conclusio ex praemissis and therefore it cannot be denied and with this agrées 41. E. 3. 22. 48. E. 3. 11. and many other Books 78 The Law respecteth the Bonds of Nature Co. Inst p. 1. 78. a. 2. 1 If before the Statutes of 32 34 H. 8. Wardship the father had infeoffed any of his younger sons or others for the making of his wife a Ioynture or for the advancement of his daughters or for the payment of his debts Co. l. 6. 76. a. 3. in Sir George Cursors Case and after had enfeoffed and conveyed the Land to his heir and had died his heir within age his heir should not have béen in ward neither was it Collusion upon the Statute of Marlbr cap. 6 c. because he was bound by the law of Nature and Nations to provide for them but now by force of those Statutes he shall be in ward for his body and for a third part of the Land c. No wardship â—uring the faâ—hers life 2 A. hath issue B. a daughter and his heir apparent who being married to C. hath issue by him D a son B. dies Litt. §. 114. Co. Inst ibid. a. 3 c. and A. that holds Land by Knights-service dies seised and the Land descends to D as heir unto A. and within age In this Case the Lord shall have the wardship of the Land but not the wardship of the hody of the heir for none shall be in ward for his body to
any Lord during the fathers life because the Law of Nature requires that the father during his life shall have the marriage of his heir apparent rather then the Lord or any other person whatsoever The Law is the same if D. had béen a daughter It is otherwise where the father dies living the mother when the Land holden by Knight-service descends to the son on the part of the father because the Law in that Case confides more in the father then in the mother c. Again this priviledge extends not to any collateral heir but onely to the son or daughter being heir apparent for albeit a man shall have an Action of Trespasse Quare consanguinem haeredem coepit and albeit the words be cujus maritagium ad ipsum pertinet because the wel bestowing of his heir apparent in marriage is a great establishment of his house yet that is to be understood as against a wrong-doer but not against a Guardian in Chivalry and the mother shall have the like writ for taking away of her son and heir apparent and yet the mother shall not bar the Lord by Knight-service of his wardship of his body as Littleton saith § 114. Qui ex filia tua nascitur in potestate tua non est sed patris sui Fleta l. 5. cap. 6. The like 3 Put the case there be Lord and Feme-tenant by Knights-service of a Carve of Land Co. ib. 84. b. 2. the Feme maketh a feoffment in fée upon condition and taketh the Lord to husband and have issue a son the wife dieth the issue entreth for the condition broken the Lord entreth into the Land as Guardian by Knights-service and maketh his executors and dieth In this Case the executors shall have the wardship of the Land during the minority of the heir but not the wardship of the body For albeit the Lord séemeth to have a double interest in the wardship of the body one as Lord and another as father yet as father and not as Lord in judgment of Law he shall have the wardship of the body of his son and heir apparent in respect of nature which was before any wardship in respect of Seigniories by Knights-service began And that wardship by reason of nature cannot be waved and claim made in respect of the Seigniorie And the executors of the father shall not have such a wardship which the testator had as father neither can such a wardship be forfeited by Outlawrie 33 H. 6. 55. 6. because it is due to the father in respect of privity of nature 9. 4 If the Sheriff or other Officer be of kindred or affinity to the Plaintiffe or Defendant Challenge to â—he Array and â—â—rour and that such affinity continue Co. ibid. 156. a 2. and 4. this is a cause of challenge to the Array as if the Sheriffe marry the daughter of either party or è converso this is a principal challenge so if there be affinity betwéen the son of the Sheriffe and the daughter of either party or è converso or the like albeit this is no principal Challenge yet is it a Challenge to the favour c. 5 If a Iuror be of blood or kindred to either party Consanguineus Co. ib. 157. a. 3 which is compounded of con and sanguìne â—o the Polles quasi eodem sanguine natus this is a principal Challenge to the Polles because the Law presumeth that one kinsman doth favour another before a stranger and how remote so ever he is of kindred yet the Challenge is good And if the Plaintiffe challenge a Iuror for kindred to the Defendant it is no Counter-plea to say that he is of kindred also to the Plaintiffe though he be so in a néerer degrée for the words of the venire facias forbiddeth the Iuror to be of kindred to either party 6 If a Body politique or incorporate sole or aggregate of many bring an Action that concerns their Body politique or incorporate Co. ibid. The like if the Iuror be of kindred to any that is of that body albeit the Body politique or incorporate can have no kindred yet for that those Bodies consist of natural persons it is a principal Challenge c. Co. ibid. 4. 7 Affinity or affiance by marriage is a principal Challenge The like and to the favoâ—â— and equivalent to Consanguinity when it is betwéen either of the parties as if the Plaintiffe or Defendant marry the daughter or Couzen of the Iuror or the Iuror marry the daughter or Couzen of the Plaintiff or Defendant and the same continues or issue be had And if the son of the Iuror hath married the daughter of the Plaintiff c. albeit this be no principal Challenge because it is not betwéen the parties yet is it a Challenge to the favour c. Co. l. 3. 38. b. 4. in Ratcliffes Case 8 Martha Wilcocks A maid conveyed away and married one of the daughters and co-heirs apparent of Eliz. the relict of William VVilcocks and then the wife of Ralph Ratcliffe dwelling in her mothers house at Hitchin being then under the age of sixtéen years and about fourtéen went from thence at two of the clock in the morning with the consent of the said Ralph to Bramfield being eight miles distant from Hitchin and there married Edw. Ratcliffe And in an Ejectione firmae brought by Luke Norton upon the demise of the said Edw. the issue was whether Eliz. the mother had the custody of Martha at the time of the said marriage for if she had then the Land of the said Martha being in soccage was to be lost for her life by force of the Statute of 4 5. P. M. cap. 8. which prohibiteth the conveying of a maid c. out of the custody and contracting Matrimony with her without the consent of her father if he be living or of her mother in case her father be dead c. in pain for the man to suffer imprisonment c. and for the maid to lose her land as aforesaid c. And in that Case it was resolved that Eliz. the mother had the custody of the said Martha at the time of the Marriage within the provision of the said Act for that Statute hath ordained two manner of new custodies viz. by reason of nature and by assignation And here the father of Martha being dead she is by nature left in the custody of her mother neither yet was the assent of Ralph Ratcliff the husband any thing at all material for the Statute hath annexed the custody to the person of the mother jure naturae which is inseparable and cannot by the marriage be transferred to the Baron but after the marriage remains onely in the mother c. Co. l. 3. 39. a. 4. in Ratcliffes Case 9 It is said No wardship during the â—â—thers life that if there be Lord and Feme tenant by Knights-service and the tenant make
a lease for life and after the Lord and the tenant inter-marry and have issue betwéen them a son and the Feme dies and after the father dies the son within age here the executors shall not have the wardship by reason of the Seigniory for the father hath the wardship of his eldest son jure naturae which is inseparable and cannot be waved and he cannot have the wardship of his son by the death of his wife in respect of his Seigniory for that was inseparably vested in him as father immediatly upon the birth of the son jure naturae And Littleton saith that the father during his life shall have the marriage of his son and heir apparent and not the Lord c. 3. Co. l. 6. 22. Ambrosia Gorges Case 10 Viscount Bindon being seised of land in capite had issue The like Douglas his daughter and heir who being married to Sir Arthur Gorge had issue by him Ambrosia a daughter Douglas dies and likewise Viscount Bindon Ambrosia being under age afterwards Sir Arthur Gorge takes another wife and hath Issue a son Ambrosia remaining still under age In this case Ambrosia was not in ward during the time she remained heir apparent to her father but after her father had a son so that she remained no longer heire apparent then had Queen Eliz. the Wardship both of her body and Lands c. Allegiance â—â—ue by nature 11 Faith Co. l. 7. Calv. Case fol. 13. b. obedience and ligeance are one to the Soveraigne by the Law of Nature which cannot be changed or taken away for albeit Iudiciall and Municipall Lawes have inflicted and imposed in several places and at several times divers and several punishments and penalties for breach or not observance of the Law of Nature for that Law onely consisting in commanding or prohibiting without any certaine punishment or penaltie yet the very Law of Nature it self could never be altered or changed And therefore it is certainly true that Jura naturalia sunt immutabilia And here with agréeth Bracton lib. 1. cap. 5. and Doct. and Student cap. 5. 6. For example 33. H. b. 55. 6. If a man hath a Ward by reason of a Seigniory and is out-lawed he forfeiteth the wardship to the King but if a man hath the wardship of his owne Sonne or Daughter which is his heire apparent and then is out-lawed he cannot forfeit that wardship because nature hath annexed it to the person of the Father as it appeareth in 33 H. 6. 55. b. So likewise the Faith Obedience and Ligeance which we owe to our Soveraigne cannot be taken away For bonus Rex nihil a bono patre differt patria dicitur à patre quia habet communem patrem qui est pater patriae In the same manner Maris foeminae conjunctio est de jure naturae 35 H. 6. 57. as Bracton and Doct. Stud. in the places before quoted do hold And therefore if he that is attainted of treason or felonie be slaine by one that hath no authoritie or executed by one that hath authoritie but pursueth not his Warrant In this Case 21 E. 3. 17. b. the eldest sonne can have no appeale for he must bring his appeale as heire which priviledge being ex provisione hominis he loseth by the attainder of his Father Howbeit his Wife if he have any shall have an appeale because she is to have her appeale as Wife which she continueth to be notwithstanding the attainder for that maris foeminae conjunctio is de jure naturae And therefore it being intended to be of true and law-full matrimonie is indissoluble and this is proved by the booke in 35 H. 6. fol. 57. So if there be Mother and Daughter and the Daughter is attainted of felonie now can not she be heire to her Mother for the cause afore said yet after her attainder if she kill her Mother this is parricide and petite treason For still she remaineth her Daughter because that is of nature If a man be attainted of felonie or treason 4 E. 4. 35 H. 6. 57. 2. Ass Pl. 3. he hath lost the Kings Legal protection for he is thereby utterly disabled to sue any Action reall or personal which is a greater disability then an alien in league hath and yet such a Parson so attainted hath not lost that protection which by the Law of Nature is given to the King for that is indelebilis immutabilis and therefore the King may protect and pardon him and if any man kill him without warrant albeit attainted as afore-said he shall be punished by Law as a Man-slayer By the Statute of the 25 E. 3. cap. 22. a man attainted in a Praemunire is by expresse words out of the Kings protection generally and yet this extendeth onely to legal protection as it appeareth by Litt. fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him and therefore notwithstanding that Statute the King may protect and pardon him And although by that Statute it was farther enacted that it should be done with him as with an enemie by which words any man might have slaine such a person as it is holden in 24 H. 8. Coron Br. 197. until the Statute made in 5 E. cap. 1. Yet the King might protect and pardon him A man out-lawed is out of the benefit of the Municipal Law for so saith Fitz. N. B. 161. Ut legatus est quasi extra legem positus And Bracton l. 3. tract 2. cap. 11. saith that caput gerit lupinum c. yet is he not out either of his natural ligeance or of the Kings natural protection for neither of them is tied to municipal lawes but is due by the law of Nature which was long before any judicial or municipal lawes And therefore if a man were out-lawed for felonie yet was he within the Kings natural protection for no man but the Sheriffe could execute him as it is adjudged in 2. Ass Pl. 3. Every subject is by his natural ligeance bound to obey and serve his Soveraigne c. It is enacted by the Parliament in 23 H. 6. cap. 8. that no man should serve the King as Sheriffe of any County above one yeare and that notwithstanding any clause of non obstante to the contrary that is to say notwithstanding that the King should expressy dispence with the said Statute howbeit it is agréed in 2 H. 7. that against the expresse purview of that Act the King may by a special non obstante dispence with that Act for that the Act could not barre the King of the service of his subject which the law of nature did give unto him One of the Chiefest grounds according to which the Case of the post-nati was resolved in 6 Jac. was because obedience and ligeance of the subject to the Soveraigne is due by the law of Nature for if they be due by that law
Case if an Infant Tenant make Feofment and die without Heire the Feofment is un-avoidable here is the same Law of Coverture and non sanae memoriae c. Co. l. 6. 76. b. 4. in Sr. Geo. Cursons Case 19 It is said that one of the Chiefest reasons 32 34 3â— H. 8. of Wilâ— that moved the Parliament in 32 H. 8. and in 34 35 H. 8. to give libertie to dispose of the two third parts of Lands by will or otherwise for a Competent livelyhood of Wives and Children or for payment of Debts was this Because these Cases were ordinary usual and necessary And for that every man is in his life time bound by the Law of God of Nature and of Nations to make provision for his Wife and Children and also for the payment of his Debts c. Co. ibid. 77. a. 2. 20 There is a neerer Relation betwéen Father and Sonne Father neeâ— then Grandfather then betwéen Grand-father and Grand-child And therefore if there be Grand-father Father and divers Sonnes and the Grand-father in the life time of the Father conveys his Land to some of the Sonnes this is out of the Act of 32 H. 8. of Wils For the Father ought to have the immediate care of his Sonnes and Issues But if the Father be dead then the care of them belongs to the Grand-father and then if he convey any of his Lands to any of them that is within the said Statute Co. Inst pt 1. 123. b. 2. Litt. §. 189. 21 It is regularly true A Villein may sue his Lord. that the Villain cannot bring any Action against his Lord yet he may have against his Lord an appeale of the death of his Father or of any other of his Ancestors whose heire he is c. because the villain is both by duty and in nature bound to pursue such an Action Co. lib. 3. 12. b. 2. St. Will. Herberts Case 22 If a man seised of three Acres of Land No contribution to the heire acknowledgeth a recognisance or Statute c. And enfeoffes A. of one Acre and B. of another and the third descends to his heire in this Case if execution be sued onely against the heire he shall not have contribution For he comes in the place of his Ancestor and sits in his State Haeres enim est alter ipse filius est pars patris And as it is said Mortuus est pater quasi non mortuus quia reliquit similem sibi Co. Inst p 1. 174. a. 4. 23 If one Copercener maketh a Feoffment in Fée and after the Feoffée is impleaded and voucheth the Feoffor The heire apparent shall derraigne the warrantie from upon feofâ—â—â— for the mother she may have ayde of her Coperceuer to deraigne a Warrantie per amount but never to recover per rata against her by force of the Warrantie in Law upon the partition For as Littleton saith by her alienation she hath dismissed her selfe to have any part of the Land as parcener but if there be two Coperceners and they make partition and the one of them enfeoffs her Sonne and heire apparant and dieth and after the Sonne is impleaded Here albeit he be in by the Feoffment of his Mother yet shall he pray in ayde of the other Copercener to have the Warrantie per amount and to recover per rata not onely because the Warrantie betwixt his Mother and him is by Law annulled but likewise for that he is alter idem with his Mother Dier 2. b. 1. 19 H. 8. 24 A fine levied by Tenant in taile after the Statute of 4 H. 7. 24. Issue in taile barred by 〈◊〉 fine and before the Statute of 32 H. 8. 36. did bind the issue in taile and his title was not preserved by any of the savings in 4 H. 7. because albeit he claimed per formam doni yet claiming thorough his Father the Land came to him in the nature of a descent Dier 128. b. 61 2 3. P. M. 25 If any of the Kings subjects be beyond Sea and is commanded by the King to return home and in contempt refuseth so to do Allegiance all his Goods and Chattels Lands and Tenements shall be seised for the use of the King And this is by reason of the faith and allegiance which he oweth to the King by the Law of Nature And this was the Earle of Richmonds Case in 19 E. 2. in Scaccario The like 26 If a Bastard were borne at Turney Dier 224. 19. 5. Eliz. when it was under the obedience of H. 8. he was a denizen by the Law of Nature So it is also of the issue of Aliens born within this Realme 27 Vide Hob. Rep. pag. 1. The Earle of Clanrichards Case 10. Grisley against Lother Formedon 28 In a cessavit brought by the Husband and Wife Hob. 1. The E. of Clanrichards Case or in a writ of Escheat a consimili casu or Action or Wast because there is a vested in them already either a Signiory or reversion actually and therefore the Land holden or the present Estate to return is come in possession therefore in these Cases Reverter is to be made to them both and so are the Bookes in 3 H. 6. 2. 20 E. 3. Briefe 372. Register 238. F. N. B. â—10 Also in a Formedon in Reverter wherein nothing is already revested but the right onely returnes there the right may be laid to return either to the Wife alone or to the Husband and Wife as Douby resolves it 33 H. 6. 54. See also 18 H. 8. 20. 5 H. 3. 13. 38 E. 3. 16. and 18 E. 3. 3. where it was sometimes to the Wife sometimes to the Husband and Wife But in a Formedon in descender upon a descent to the Wife there the descent must be made in the writ to the Wife alone because the descent followeth the bloud and to that the Husband is a stranger and so are the Bookes in 19 H. 6. 46. and 53 H. 6. 10. where a Formedon in descender was brought by two Husbands and their Wives and made the descent in bloud to the Wives onely and yet concluded that the right ought to descend to the Husbands and Wives And exception was taken to it and ordered by the Court that it should be amended and the descent made onely to the Wives Assumpsit 29 In an Action upon an Assumpsit Hob. 10. Grisley and Lother that A. would give to B. 100 l. if B. would give her consent that A. might marry her Daughter and it was moved in arrest of judgement that the action would not lie the consideration being to travel or charge but onely a bare consent howbeit it was held by three Iustices against one that the consideration was good because the Mother hath by the Law of Nature a special stroke to incline the Daughters mind either one way or other and the desire of
presently after his death and before office thereof found cast upon the King for in such Case it ought to be in some person or other and if any person enter into the Land and take any of the profits an information of Intrusion by the King may be perferted against him before office or seisure because the King immediately after the Tenants death is in actual possession and hath not onely a frank-tenement in Law as a Common person in such Case hath And as to that this diversity is taken that when the Kings Tenant dies in possession without heire so as in that Case possessio est vacua and in none there the Law adjudgeth the King unto whom no laches can be attributed in actual possession presently but when another is in seisin and possession at the time of the escheat so that Possessio plena est non vacua In that Case the King shall not be adjudged in possession The Kings Teâ—ant â—lien â—illein Mortmaine until that seisin and possession be removed as if the Kings Tenant be disseised and die without heire or if an Alien nee or the Kings Villein or the Alienee in Mortmain be disseised and die without heire and all that found by Office in those Cases the King shall not be in possession untill the possession and seisin of the terre-tenant be removed But if Land descend to the King after the death of his Father or of any other Collateral Ancestor the King shall be immediately in actual possession before entry or seisure So likewise if the King make a Lease for life or a gift in taile and the Lessée dies or the donée dies without Issue In that Case the possession shall be actually in the King without any entry or seisure and with this accords 9 H. 7. 2. 6. where it is expressely said that when none is in possession it shall be adjudged in the King according to his title and so the doubt which Stamf. makes Praerogative 53. b. is well resolved Condition â—emand 35 If the King make a Lease for yeares rendring Rent with Condition to be void upon non-payment of the Rent Co. l. 4. 73. a. in Boroughs Case the King shall take advantage of that Condition without any demand it being a thing undecent and against the dignitie of the King to wait upon his subject or to demand any thing of him it is otherwise if the King grant over his reversion For his grantée shall not take advantage of the Condition without demand of the rent this is by reason of a personal prerogative in this Case annexed to the person of the King and not in respect of the nature and qualitie of the Rent for that remaines the same whether paid to the King or to a subject upon the ground or elswhere c. â—wo Houses â—mised 36 Two houses are let to one man by one demise Co. l. 5. 55. b. 3. 56. a. 1. Knights Case rendring for the one 4 l. per annum and for the other 20 s. per annum with proviso that if the said Rent of 5 l. be arreare in part or in all then the Lessor to re-enter The Inheritance of these Houses afterwards escheats to the King â—he fold â—ent â—eare â—ndition who after grants the reversion of that upon which 20 s. per an is reserved to I. S. the Rent thereof is arreare In this Case the Patentée cannot enter for the Condition broken because by the severance of any part of the reversion all the Condition as to a Common person is intirely destroyed It is otherwise in the Kings Case for the Condition remaines intirely in the King with the reversion of the other House and that is in respect of his prerogative c. â—gs grants â—ourably inâ—â—ted â—ein â—en â—vowson 37 The Law makes a difference betwéen the Kings grants who is alwayes presumed to intend Ardua regni pro bono publico omnium Co. ibid. 36. a Knights Case Co. l. 7. 14 a. in Englefeilds c. and the grants of subjects who have leasure to attend their private affaires for the grants of a subject are alwayes interpreted most strongly against him that makes them but the Kings grants are alwayes taken with a favourable and beneficial interpretation so that no prejudice may happen to him by construction or implication upon his grant otherwise then was truly intended by it And therefore if the King grant Land to I. S. and his heires when in truth I. S. is the Kings Villein this shall not enfranchise the Villein by Implication There is the same Law of an alien nee 17 E. 3. 39. An Advowson of a Prebendarie holden of the King was aliened to an Abbot and his successors and the King grants to the Abbot and his successors that they shall hold the Prebnedary in proper use neverthelesse he shall seise the Advowson for alienation in Mortmaine and shall destroy the Appropriation for he shall not be outed of his right to the Advowson by Implication Debt Release And in 2 R. 3. 4. 21 E. 4. 46. 34 H. 6. If two be undebted to the King the King release to one of them this shall not discharge the other in 6 H. 7. 15. 11 H 7. 10. If the King release all demands right Restr to alâ—â— of Inheritance shall not be there by released 21 H. 7. 7. The King grants Lands in Fée upon condition that the grantée shall not alien this is good Howbeit in all these cases the Law is otherwise in the case of a common person c. Co. ibid. a. 4. Knights Case 38 In many cases the King that claimes by a subject Rent-secke distraine shall be in better case in respect of the dignity and prerogative incident by the Law to the Royal person of the King then the subject himselfe by whom he claims As if the King had a rent secke by attainder of treason or by grant c. he shall distraine for it not onely in the land charged but likewise in all his other lands and yet the subject by whom the King claimes shall not distraine for it at all If a subject hath a recognisance or obligation Recognisanâ— Oblig and afterwards he is out-lawed or attainted in this case the King shall seise all the land of the Counsor or obligor whereas he himselfe could have but a moity if a subject demise land rendring rent and a re-entry upon default of payment thereof in this case the subject shall not take advantage of such a condition without demand of the rent c. but if the inheritance of that land come to the King by Act of Parl. attainder grant Seise all Condition Demand Priority c. he shall take advantage of the breach of such a condition without demand of the rent F. N. B. 142. c. if the King purchase a Seigniory of which land was holden by posterity the King shall
Also if issue be taken whether the Plaintiffe be an Earl or no it shall not be tried by the Countrey but the Kings writ Also the Defendant shall not have a day of grace against a Lord of the Parliament because he is conceived to attend the publique And all these and many other do appear in our Books 48 E. 3. 30. Regist 179. F. N. B. 247. 48. Ass Pl. c. 23. Ass Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that as when such an Office descends to an infant or to a man de non sanae memoriae they of necessity ought to exercise it by Deputy so likewise an Earl for the necessity of his attendence which the Law intends upon the King and the Common-wealth that Stewardship of a base Court shall be executed by Deputy Also if a Parkership be granted to an Earl without words to make a Deputy yet he may keep it by his servants And if a Duke have licence to hunt in a Park the Law will allow him attendance suitable to his condition c. Marshalsie Seisure Office Scire facias 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsie Co. l. 9 95. b. 3. in Sir George Reynels Case by divers voluntary escapes and it was resolved that the King might seise that Office without suing out a Scire facias And in that Case it was observed 1 That the King in some cases shall be in possession by seisure without Office as in 21 H. 7. and Stamf. in case of temporalties of a Bishop and of Priors aliens because the certainty of them appears in the Exchequer 2 He shall sometimes be in possession by Office without seisure as of Lands Tenements Offices c. which are local oâ— whereof continual profit may be taken as upon condition attainder wardship c. Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Sadlers Rep. 5. And the Office albeit false yet cannot be avoided without traverse for he cannot traverse the Kings title in the information Traverse Advowson c. 20 E. 4. 10. 3 The King shall be in possession by Office and seisure of an Advowson and thereof he is not in possession until presentment admission and institution And if the King upon refusal bring a Quare Impedit the owner may traverse the Kings title in that Action without traverse of the Office because it is not a manual but an incorporal hereditament also the right to present is casual and not continual 4 The King shall be in possession without office where his tenant died without heir 9 H. 7. 2. 5 When distinct matters amount to an office in that case there ought to be a Scire facias before the King can seise 6 When a common person is put to his Action In that Case the King upon office is put to his Scire facias c. â—o tenure reâ—erved Capite 57 When the King grants any land without reservation of any tenure or absque aliquo inde reddendo or the like Co. l. 9. 123. b. 3. in Anthony Lowes Case the Land by operation of Law shall be holden of the King in capite by knights-service according to the rate and proportion of Land holden by knights-service viz. more or lesse according to the quantity of the Land c. 58 When any thing is due to the King Co. l. 9. 132. a. in Holis Case he ought to have the full and compleat effect of the thing so due unto him As if there be Grandfather Father and Son of Lands whereof some are holden of the King in capite by Knight-service in capite and the residue of other Lords c. And the Grandfather conveys all the Lands holden of other Lords and part of the capite Lands to the Father for life the remainder to the Son in tail the remainder to the right heirs of the Grandfather And the residue of the capite Lands to four younger Sons successively for life the remainer to the right Heirs of the Grandfather the Grandfather dies the Father tenders his livery and dies before livery sued or office found the Son being of full age and all this is found by office and the Son continues the livery the four younger Sons being still in life In this Case albeit by the death of the father before livery sued the King hath lost the priviledge of having primer seisin after the death of the Grandfather as it was adjudged in Northcots case and in Hales case in the 8 Rep. c. for here the Son shall not sue livery nor pay primer seisin because they were due by the Father after the death of the Grandfather and the Son living the Father is not within the Statutes of 32 34 H. 8. for the Lands conveyed unto him Neverthelesse in the same Case the King shall have primer seisin for the Lands conveyed to the younger Sons because they are within the thrée Cases in which wardship and primer seisin are given unto the King by the said Acts viz. Advancement of his wife preferment of his children and payment of his debts And the reason hereof is because when the said Acts give unto the King primer seisin it is intended of an actual and effectual primer seisin and not of one which is onely Mathematical and Imaginary for as before is said the King ought alwayes to have a full and compleat effect of the thing which is due unto him So also if the King hath title to present by lapse hâc vice and he present and his Clerk is admitted and instituted but dies before induction In this Case the King shall present again for he had not the full and compleat effect of his presentation as it was resolved by Sir James Dyer rotam Curiam in Gyles his Case 18 Eliz. in Co. Ba. Likewise if the King marry a daughter Marriage again which he hath inward infra annos nubiles and before the age of consent the Baron dies the King shall have the marriage of the Heir again because the first marriage was not compleat as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred And the King donor in tail before the Statute of West 2. de donis c. was not barred by the alienation of the Donée post prolem suscitatam without Assets albeit there were collateral warranty Howbeit in all these Cases a common person shall be barred c. Co. l. 10. 113. b 1. in Legats Case 59 When the King grants any thing upon a false insinuation Grant upon false suggestions void or suggestion such a grant of the Kings is void for in that Case there is a diversity betwéen the King a common person For a Subject that may intend his private affairs shall not in such Case avoid his Grant but the King who intends the Publique good shall avoid
â—ings in Aâ—â—n 97 If the King grant his owne recognisance the suit shall be in the name of the grantée but if he grant an obligation forfeited for outlawrie Dier 1. 7. P. 4 H. 8. the suit shall be in the Kings name â—e like Fuit dit 98 Bruerton who was attained 28 H. 8. had certaine obligations Dier 30. b. 208 28 H. 8. which were forfeited to the King and the King grants them to his Wife without any words that it should be lawfull for the grantée to bring Actions thereupon yet the Feme brings an Information in her owne name for the said obligations And upon demurrer thereupon it was adjudged that the Action was well brought because the King onely may grant a thing in Action Finch as Ley French edition Fol. 22. 99 The King may licence things prohibited by Statute The Kings â—cence as to coyn money which is made Felony by the Statute and before that it was lawfull for any one to do it because it is but malum prohibitum But malum in se as to levie a Nusance in the high way the King cannot licence a man to do but after it is done he may pardon it Howbeit if the Statute saith that his licence shall be void there the licence shall have a clause of non obstante 2 H. 7. grants 73. viz. shall say Notwithstanding any Statute to the contrary otherwise it is not good as the Statute of 23 H. 6. 8. ordaines that the Kings grant to be Sheriffe of any County longer then a yeare shall be void notwithstanding that his Patent shall have a Clause of Non obstante yet with a Clause of Non obstante such Patent shall be good Dier 52. 1. 33 H. 8. but not without that Clause Howbeit neither without such a Clause nor with it can he dispence with a Statute before it be made And therefore a licence to carie Bell-mettal out of the Realme notwithstanding any Statute made or to be made is not good if a Statute be made after to prohibit it for he cannot dispence with an Act of Parliament before it be made Howbeit he may in things wherein he hath an inheritance or interest as to grant to own to be discharged of taxes and subsidies to be granted this is good 11 H. 7. 11. b. Finch ibid. 100 Statutes of restraint bind not the King Knâ—ght not bound by Sâ—â— unlesse they concerne the Common-Wealth or he or the thing they concerne be specially named as the Statute of West 2. of entailes binds the King because it concernes the whole Com. Wealth so likewise the Statute of 1 H. 5. cap. 5. That in Indictments addition must be given to the party indicted bindeth the King because Indictments are specially named But if by Statute one be attainted and his Lands forfeit with a proviso that of such Lands as he was seised to the use of any other Cesty que use should enter upon him for it is not for the Common Wealth neither yet is the King named therien Co. l. 4. 35. b. 1. in Bozouns Case 101 When the king by the Common Law cannot make a grant Non obstante there a non obstante of that Common Law will not against the reason of the Common Law make the grant good but when the king may lawfully by the Common Law make a grant and the Common Law onely requires that he be so instructed that he may not be deceived there a non obstante supplying it stands with the reason of the Common Law and shall make the grant of the good And therefore if the King grant a protection in a Quare Impedit or an Assise with a non obstante of any Law to the contrarie such grant is void for by the Common Law a Protection lyeth not in either of those Cases for the damage that may happen to the Plaintife by such great delay And therefore in such Case a non obstante shall not availe where the King by the Common Law cannot grant the thing as it was Ruled in 39. H. 63. 9. Advowson Dier 226. 35. 6 El. 102 The King by his prerogative may make a Sheriffe without the usuall assembly and Election in the Exchequer Dier 288. 54 12 El. 103 The King may demise a Mannor Qâ— Imp. except the Courts and perquisites so cannot a Common Person Dier 351. 22. 18 El. 104 Some books are that by an usurpation the King shall be out of possession and put to his writ of right of Advowson But 35 H. 8. it is there that the King may gaine possession by presentment and plenartie by 6 moneths and that against an infant who is a purchasor Vide Fitzh Tit. Qu. Impedit 151. 8 E. 3. and M. 16 Trin. 38 E. 3. Stat. Westm 2. c. 5. Hob. 126. 105 In a Quare Impedit if the title appeare to the Court to be in the King albeit he be no party to the suite yet they ought to award a writ to the Bishop in his behalfe The Chancellor c. of Camb. against Walgrave 106 The Kings Certificate under his signet Manual was received as evidence in Chancery without exception Hob. 213. 3. in the Case of the Lord Aubignye against the Lord Clifton 82 Likewise the Law giveth greater priviledges to men then to Women Wardship â—ody Father â—ot Mother 1 A. Tenant of Land holden by Knight-service Litt. §. 114. Co. Inst p. 1. 84. a. 3. hath issue B. a Daughter and his heire apparent who being married to C. hath issue and dies A. dies seised and the Land descends to the issue within age In this Case the Lord shall have a wardship of the Land but not the wardship of the body of the heire for none shall be in ward for his body to any Lord during his fathers life It is otherwise where the Father dies living the Mother when the Land holden by Knight-service descends to the issue on the part of the Father because the Law in that Case confides more in and giveth more respect unto the Father then the Mother c. Villein 2 If a Villein taketh a frée woman to Wife Litt §. 187. and have issue betwéen them the issues shall be Villeins but if a Niefe taketh a Frée-man to her Husband their issue shall be Frée Feme no witâ—esse 3 In some Cases Women are by Law wholly excluded to beare testimonie as to prove a man to be a Villein Co. Inst p. 1. 6. b. 4. Mulieres ad probationem status hominis admitti non debent Fleta l. 2. cap. 44. Fitz. title Villein 32. 36 37. 83 The Law tendreth the weaknesse and debility of other persons as those out of the Realme in Prison Femes covert and other Women also Likewise Infants Lunatiques Ideots and such as have other imperfections â—ortion 1 If Coperceners make partition at full age and un-married Co.
trâ—â— and the Land descends to his Heir In this Case the Heir cannot distrain or avow upon the Tenant for life nor bring an Action of waste against him before Attornment there is the same Law also of the Assignée of such a Grantée c. Howbeit if such a Grantée die without Heir so that the Land escheats to the Lord of the Fée In that Case the Lord shall bring an Action of waste c. without attornment because he is a stranger and commeth in méerly in the Post Co ib. 338. b. 15 When a Reversion and a particular Estate A lease c. drowned or hath continâ—ance for the benefit of a stranger c. or a Rent and the Land out of which it issues c. happens to come into one and the same hand by Grant Surrender or otherwise if the interest of a stranger be therein concerned the particular Estate or Rent c. shall in consideration of Law either be drowned or continued when either the one way or the other the stranger may reap a benefit or prevent a prejudice Howbeit of Parties and Privies no such consideration shall be had Litt. §. 636. As if a Feme inheritrix take Baron and have issue a son and that Baron die and she takes another Baron and the second Baron lets the Land for life and after the Feme dies and the tenant for life surrenders his Estate to the second Baron c. In this Case the son may immediatly enter upon the second Baron for betwéen the Lessée and the second Baron the Estate for life is determined and so likewise for the benefit of the issue it shall be adjudged in Law to be Also if he in the Reversion after an Estate for life make a lease for years or grant a rent-charge c. and then the Lessée for life surrenders In this Case the lease or rent shall commence presently because it is for the benefit of the Lessée for years or the Grantée of the rent who are strangers c. that it should so do But if a Reversion be granted with warranty and the tenant for life surrender In this Case the Grantée shall not have execution in value against the Grantor who is a stranger during the life of the tenant for life for as to the Grantor the Estate for life notwithstanding such surrender shall in consideration of Law be conceived to have continuance lest such a surrender might work a prejudice to the Grantor that is a stranger So if tenant for life surrender to him in Reversion being within age he shall not have his age for that would be a prejudice to a stranger who is to become Demandant in a real action c. Also if tenant for life grant a rent-charge and after surrender yet the rent shall remain during the life of the tenant for life for otherwise it would work a prejudice to the Grantée of the rent who is a stranger c. and as to that purpose the reversioner cometh in under the charge If a Bishop be seised of a rent-charge in fée the tenant of the Land enfeoffes the Bishop and his successors the Lord enters for the Mortmain he shall hold it discharged of the rent for the Lord claimeth under the Mortmain and it is for his benefit that the rent should be extinct c. If a man maketh a lease to A. for life reserving a rent of 40 s. per annum to him and his heirs the remainder to B. for life the Lessor grants the reversion to B. in fée A. attornes In this Case B. shall not have the rent because although the fée-simple do drown the remainder for life betwéen them yet as to a stranger it is in esse c. and therefore B. shall not have the rent but his heir shall have it After assignment no action of debt against the exâ—ecuto or administator 16 If the executor of a Lessée for yeares assigne over his Interest Co. l. 3. 24. a. 2. in Overton Sydhals Case T. 37. El. in B.R. an Action of debt shall not lie against him for Rent due after the assignement So if the Lessée for yeares assigne over his Interest and die his Executor shall not be charged for Rent due after his death because by the death of the Lessée the personal privity of the contract as to the Action of debt in both Cases being determined the Executor becomes a méere stranger to the said Leases c. There is the same Law also of an Administrator as appeares P. 41 El. Rot. 2458. in C. B. Marrow Turpins Case Statute of 33 H. 8. cap. 39. 17 The makers of the Statute of 33 H. 8. cap. 39. Co. l. 7. 21. b. 3. in the Lord Andersons case whereby the heire in taile is chargeable with the Kings debts as well as the heire in Fée-simple was at the Common Law did not think fit to charge his alienée when the heire in taile before any processe or extent had bona fide aliened the Land for they had reason to favor the purchasor farmor c. of the heire in taile more then the heire himselfe because they are strangers to the debts of the Tenant in taile and come to the Land upon good consideration c. Rent 18 Lessée for yeares grants a Rent-charge and surrenders 1 El. 194. Finch 27. yet the Rent shall be payd during the yeares So if he in the reversion grant a Rent-charge during the terme and then the Lessée surrendreth unto him he shall pay the Rent during the terme for the stranger that is the grantée of the Rent for his benefit shall say that the terme continueth or that it is determined c. 86 Res inter alios acta alteri nocere non debet sed quando que prodesse potest Vide supra Max. 51. 43 62. â—â—e for life â—â—â—â—sion 1 If a man make a Lease for life Co. Inst p. 1. 319. a 4. and then grant the reversion for life and the Lessée attornes and after the Lessor disseiseth the Lessée for life and makes a feofment in fée and the Lessée re-enters this shall leave a reversion in the Grantée for life and another reversion in the Feoffee and yet this is no attornment of the Grantée for life because he doth no Act nor giveth assent to any which might amount to an attornment in law But res inter alios acta alteri nocere non debet c. â—onâ—r Donce Dis-continuâ—nce 2 If land be given in tail saving the reversion to the Donor Co. ib. 335. a. 1 and after the tenant in tail by his déed enfeoffes the Donor in fée this is no dis-continuance of the Estate tail because the reversion being already in the Donor it cannot by the feoffment of the tenant in tail be dis-continued but if a man make a gift in tail the remainder in tail reserving the reversion to himself In this
and after I confirm the Estate of the Baron and Feme to have and to hold for their two lives In this Case the Baron holds not joyntly with the Feme but onely in her right during her life and shall have it for life if he survive her But if I let to a Feme sole Land for term of years who takes Baron and I confirm the Estate of the Baron and Feme to have and to hold for their lives In this Case they have a joynt Estate in the Frank-tenement of the land because the Feme had not Frank-tenement before but onely a Chattel whereof the Baron hath such a possession in her right as was capable of a confirmation or a release and the confirmation in this Case to the husband and wife for their lives maketh them Ioynt-tenants for life because this Chattel of the Feme covert may be drowned So note a diversity betwéen a Lease for life and a lease for years made to a Feme covert for her Estate of Fréehold cannot be altered by the confirmation made to her husband and her as the term for years may whereof her husband may make disposition at his pleasure Co. ib. 275. b. 4. 11 If Lessée for years be ousted and he in the Reversion disseised Release to the Disseisor and the Lessée release to the Disseisor the Disseisée may enter for the term for years is extinct and determined But otherwise it is in case of a Lessée for life for in that Case the Disseisor hath a Fréehold whereupon the release of tenant for life may inure but the Disseisor hath no term for years whereupon the release of the Lessée for years may inure Co. ib. 378. â— 4 12 A man letteth lands for life upon Condition to have Fée A Lease for years not capable of a warranty and warranteth the land in forma praedicta afterwards the Lessée performeth the Condition whereby the Lessée hath Fée In this Case the warranty shall extend and increase according to the State for a warranty being a Covenant real executory may extend to an Estate in futuro having an Estate whereupon it may work in the beginning but if a man grant a Seigniory for years upon condition to have fée with a warranty in forma praedicta and after the Condition is performed this shall not extend to the fée because the first Estate was but for years which was not capable of a warranty And so it is if a man make a lease for years the remainder in Fée and warrant the land in forma praedicta he in the remainder cannot take benefit of the warrantie because he is not party to the Déed and immediately he cannot take if he were party to the Déed because he is named after the habendum and the Estate for years is not capable of a warranty c. Waste 13 A Lease for life the remainder for years Finch 29. the remainder over in Fée an action of waste lieth for him in the remainder in Fée against the Lessée for life sor the mean Estate for yeares is not regarded Otherwise it were if the mean Estate for years were an Estate for life c. Joynt-tenants may prejudice one another 14 One Ioynt-tenant cannot prejudice his Companion Co. l. 2. 68. a. 3. in Tookers ca. as to any matter that concerns the Inheritance or Frank-tenement But as to the profits of the Frank-tenement they may prejudice one another c. per Popham Right of Action 15 There is a diversity betwéen Inheritance and Chattels Co. l 3. 3. a. 1 in the Marquesse of Winchesters Case for the right of action concerning Inheritances is not forfeited by Attainder c. but Obligations Statutes Recognisances c. and such other things in action are forfeited by Attainder or Outlawry Real and personal actions 16 The Law hath provided greater safety and remedy for matters of Frank-tenement and Inheritance then for Debts and Chattels Co. l. 6. 7. a. 1 in Ferrers Case for there once barred and ever barred for in personal actions as in Debt Accompt c. the bar is perpetual because the Plaintiff in that Case cannot have an Action of an higher nature but his onely remedy in such Case is by Errour or Attaint Howbeit if the Demandant be barred in a real Action by judgement upon Verdict Demurrer Confession c. yet he may have an Action of higher nature and try the same right again because it concernes the Frank-tenement and Inheritance as if one be barred in an Assise de novel disseisin yet he may have upon shewing a descent or other special matter an Assise of Mortdancestor Aiel Besaiel Entry sur disseisin to his Ancestor c. So if a man be barred in a Formedon in descender he may have a Formedon in reverter or remainder for that is an Action of an higher nature because in it the Fée-simple is to be recovered according to the opinion in Robinsons Case in the 5. Report fol. 33. â—ands not â—hargeable in â—â—cution 17 At the Common Law before the Statute of VVest 2. cap. 18. Co. l. 3. 11. b. 4 in Sir Wil. Herberts case which gave an Elegit against the moity of the Debtors Lands upon a Recognisance or Iudgment sued lands were not chargeable in execution but onely Goods and Chattels or else grain or other present profit increasing upon the land viz. Goods and Chattels by Fieri facias and such present profit by Levari facias c. Vide suprà Ru. 92. ex 16. Howbeit in the Kings Case by reason of his Prerogative and in Case of an Heir in by Descent and chargeable by the act of his Ancestor c. because otherwise in such Case the Creditor was without remedy c. lands were chargeable in execution c. 〈◊〉 by a terâ—â—r not good 18 A man deviseth a rent for life out of a Mannor Co l. 6. 58 b. 4 in Bredimans Case and deviseth the Mannor for years the termor enters and payes the rent after the term the Devisée brings an Assise for the rent against the Terre-tenant And in this Case seisin by the hands of the Termor was adjudged no sufficient seisin whereupon to ground the Assise but the seisin ought to have béen given by the hands of the Terre-tenant viz. of one the tenant of the Frank-tenement c. Vide suprà Ru. 86. ex 21. It had béen otherwise if the termor for years had béen Lessée for life for then the seisin had béen given by the hands of the Terre-tenant viz. of one that had Frank-tenement as may be collected out of Bredimans Case ubi in margine viz. fol. 58. b. â—â—rantee of a â—â—version â—â—dition 19 If a man make a Lease for years upon condition Co. l. 8. 95. b. 3 in Matt. Mannings Case Co. l. 10. 48. b. 3 in Lampets ca. that if the Lessée doth not such an act that the Lease
the money before the stealing and the other refused to deliver them then for this default in him he shall be charged for after such tender he kept them upon trust as Bailée and therefore was to look safely to them at his peril â—and devised 〈◊〉 be sold 6 If a man seised of Lands deviseth that his executors shall sell it Co. ib 112. b. 3. 113. a. 2. 181. b. 2 and he maketh two executors and dieth In this case if one of the executors before sale thereof die or refuse at the Common Law before the Statute of 21 H. 8. cap. 4. the land could not have béen sold by the surviving executor because the power given them by the will being but a bare authority it ought strictly to be observed Dier 177 32. 2 El. and they ought both to joyn in the sale but if a man deviseth lands to his executors to be sold and he maketh two executors and the one dieth yet the survivor may sell the land because they had not a bare trust onely but also a trust coupled with an interest and therefore as the state so also the trust shall survive c. â—der upon â—ortgage 7 Vpon a Mortgage if a stranger that hath no interest in the land Co. ib. 206. b. 4. Littl. § 334. will of his own head take authority to tender the moneys c. the Feoffée is not bound to receive them but if the Mortgager die his heir within the age of 14 yeares and the land being holden in soccage the next of the kinne to whom the Land cannot descend being his Guardian in soccage may tender in the name of the heir because he hath an interest as Guardian in soccage Also if the heir be within the age of 21 yeares and the land is holden by Knight service the Lord of whom the land is holden may make the tender for his interest which he shall have when the Condition is performed for these in respect of their interest are not accounted strangers c. â—ditions in 〈◊〉 upon trust 8 If an Office of Parkership be granted or descend Co. ib. 233. b 4 to an infant or Feme covert and the conditions in Law annexed to that Office which require skill and confidence be not observed and fulfilled the Office is lost for ever because as Littleton saith § 379. that implicite condition of skill c. is as strange as an expresse condition but if a lease for life be made to a feme covert or an infant and they by Charter of feofment alien in fée the breach of this condition in law that is without skill c. is no absolute forfeiture of that estate So it is likewise of a condition in law given by Statute which giveth an entry onely As if an Infant or feme covert with her husband aliens by Charter of feofment in Mortmain this is no bar to the Infant or feme covert because these conditions endeavour to defeat an Interest onely but the other an Interest mixed with a trust and confidence Co. ib. 258. a. 4. 9 If a man makes a letter of attorney to deliver seisin to I. S. upon condition and the Attorney delivereth it absolute this is void Livery of sâ—â—sin And so some hold if the warrant be absolute and he delivereth seisin upon condition the livery is void because he ought to pursue his Warrant c. Co. ib. 265. b. 1. 10 If a man by his last Will devise Power of Râ—vocation that his executors shall sell his land and dieth If the Executors release all their right and title in the land to the heir this is void for that they have neither right nor title to the land but onely a bare authority which is not within the case a release of a right And so it is if Cesty que use had devised that his feoffées should have sold his land Albeit they had made a feoffment over yet might they sell the use for their authority in that case is not given away by the livery because in these cases the power or authority extendeth onely to the use of a stranger and nothing for the benefit of him that makes such release or feoffment It is otherwise where the power or authority doth also respect the benefit of the releasor as in the case of the usual powers of revocation when the feoffor hath power to alter change determine or revoke the uses being intended for his benefit for in that case he may release and where the estates before were defeasible he may by his release make them absolute and seclude himself from any alteration or revocation as it was resolved in Albanies case in the 1 Rep. 112 113. Co. l. 1. 112 113. in Albanies Case Co. ib. 310. 2. 3. Littl. §. 552. 11 Attornment is a kind of power which the tenant c Attornmeâ—t hath to make perfect the grant of a reversion remainder rent c. And therefore it ought to be always strictly and exactly directed according to the grant As if the Lord first grant his services in fée to one and afterwards to another for life and the tenant first attorns to the last grantée In that case he cannot after attorn to the first grantée to make the fée-simple pass for that would not be according to the grant but in that case the Attornment to the first is countermanded And so it is if a reversion expectant upon an estate for life be granted to another in fée and after the Grantor before Attornment confirms the estate of the Lessée in tail the Attornment to the Grantée for the Fée-simple is void In the same manner if a Reversion upon an Estate for years be granted in fée and the Lessor confirm the estate of the Lessée for life he cannot afterwards attorn c. Co. ib. 365. b. 3. 12 Warranties are favoured in Law Warranty Estopples because they are matter of interest whereby a mans estate is the better assured It is otherwise of Estopels because they are matter of limitation whereby an Estate is barred Co. l. 9. 75. b. 3. in Combes Case 13 If man hath a naked authority coupled with a confidence Executors Cestuy quâ— as Executors have to sell land they cannot do it by Attorney but if a man hath authority as absolute Owner of the Land there he may do it by Attorney as Cesty que use might after the Statute of 1 R. 3. and before the Statute of 27 H. 8. For Cesty que use had absolute authority to dispose of the Land at his pleasure without any confidence reposed in him as appears in 11 Eliz. Dyer 283. and there also a Iudgement in 25 H. 8. is cited which agrées with it against the opinion of some Iustices in 9 H. 7. fol. 24. So likewise a Copiholder Copyholâ— Power to make Leâ— who hath not a bare authority onely to surrender but likewise a customary estate of
these cases he may Co. l 10. 47. b. 3 in Lampets Case 26 A. Lessée for 500 years deviseth to B. for life and after his decease the remainder to C. and the heires of his body this executory devise the remainder to C. and the heires of this body this executory devise may be released to B. but cannot be granted to a stranger it is otherwise of an interest executed Fit 2. N. B. 83. b 27 If the Lord levie aide to marry his Daughter Aide for marring c. and do afterward marry her she shall not have an action against the executors of the father for that money it is otherwise if she were not married in his life time So it is also of the sonne not made Knight c. F. N. B. 120. f 121. c 28 If a man take a feme who is indebted to an alien Baron not chargeable without reco and the feme dies before that Debt is recovered by action in that case the Baron is not chargeable It is otherwise if it were recovered living the feme c. Pl. Co. 52. a. 1. Wimb Talb. Case 29 An heir in tail that hath a Reversion An estate executed and executory div or remainder really executed in him shall not néed to plead specially how he is heir it is otherwise where it is to be executed So if Administrators bring an action of Trespasse for Goods taken out of their own possession they shall not shew the Letters of Administration Otherwise it is for Goods taken in the life of the Intestate for there the possession of the Goods were never executed in them but to be executed Also if a Lease be made for life the remainder in taile and he in the remainder is seised after the death of the Tenant for life his issue shall have a Formedon and shall declare upon the immediate Gift neither yet shall shew the Déed otherwise it is if that estate were to be executed Pl. Co. 51. a. 3. Wimb Talb. Case 9 H. 6. 23. Pl. Co. 56. b. 5. contra 30 A man deviseth land to one for life An estate vested shall remaine the remainder to the right heires male of the Devisor and to the heirs of his body begotten the Tenant for life dies and the next heir of the Devisor being a feme enters and after had a sonne And there it was holden by the best opinion that the some shall not out the feme because the sonne born after shall not take away the land before vested in the feme as heir for default of such person then in rerum natura to take the devise Co. Inst p. 1. 117. a. 3. 31 If lands be given to Villain and to the heires of his body Villain and alien tenantâ— in tail and the Lord enters and after enfranchiseth the Donée and then the Donée hath issue yet that issue shall never have remedie either by Formedon or entry to recover the Land for that it was executed in the Lord before the enfranchisment of the Donée and the Statute de Donis giveth remedy to the Issues of the Donée that have capacity and power to take and retaine such a gift c. So it is also if lands be given to an Alien and to the heires of his body upon office found the land is seised for the King afterwards the King makes the Alien a Denizen who hath issue and dieth in this Case also the King shall detaine the land against the Issue c. â— fâ—eri facias â—câ—ted shall â—d 32 Sale by the Sheriffe upon a fieri facias shall stand Co. l. 8. 76. b. 4. Mathew Manuings Case albeit the judgment afterwards reversed and the Plaintiffe in it restored to the value Dier 363. 24. 〈◊〉 original 〈◊〉 judicial â—ll abate or 〈◊〉 abate 33 There is a diversity betwixt writs real original Co. l. 10. 134 in Read and Redmans Ca. which are as things executory writs real Iudicial which Issue from the judgment being in the nature of a thing executed And therefore if 2 coperceners bring a real Action and the one is summoned and severed and after dies having issue or no Issue in this Case the writ shall abate so likewise if 2 jointenants bring an Assise or other original real Action and the one is summoned and severed and dies the writ shall abate albeit the thing in demand servive But if two coperceners bring a scire facias which is a judicial writ upon a fiue levied c. and the one copercener is summoned and severed then dies without Issue such judicial writ shall not abate And so it is also of two joyntenants Howbeit if the copercener that dies hath issue it shall abate because the right descends â—â—â—ter â—câ—â—ed 34 If lands be given to a man and the heires females of his body Co. Inst p. 1. 357. a. 2 and he maketh a feofment in fée and take backe an Estate to him and his heires and dieth having Issue a Daughter leaving his wife grossement ensuit with a Son and dieth the Daughter is remitted and albeit the Son be afterwards borne he shall not devest the remitter because it was executed â—e feme reâ—ed after â—ontinuâ—e 35 If the Baron discontinue the land of the Feme and go beyond Sea Litt. § 677. Co. Inst p. 1. 356. b. 4. and the discontinuée leases the land to the Feme for life and gives her seisin and after the Baron returnes and dis-agrées to the lease and livery of siesin made to the Feme yet in this Case she is remitted to her ancient Estate because by the lease for life and livery the remitter was executed in the Feme and the Estate for life to the Feme which wrought the remitter is vanished and whole defeated And therefore dis-agréement of the husband can devest the Estate gained by the lease which by the remitter was actually devested before 〈◊〉 plenâ—â—ty â—â—re induâ—â—n 36 A Clerk is not enabled by the Stat. of 25 E. 3. 7. Dier 1. 8. 4 H. 8. by the word possessor to plead in barre before induction for by that his possession is executed and then he is possessor and not before â—eâ—ants in â—â—mon of 〈◊〉 Advowson 37 Thrée Tenants in common 〈◊〉 an advowson make composition Dier 19. a. 194 28 H. 8. that each of them shall present by term if each of them hath once presented by his turn by vertue of the composition in a Qu. Imp. brought after amongst them it is not necessary to shew the composition because it was executed it is otherwise in Case it were not executed And such composition cannot be without writing it is otherwise of coperceners for such composition may be by parol amongst them because they are privies and as one heire and are compellable to make partition â—sâ—uy que use â—render in 〈◊〉 38 Cestuy que use after the Statute of 1
time of his death and by consequent the determination of the Lease thereupon the Lease is good ab initio Notwithstanding that uncertainty c. Videl 6. fol. 34 35. in the Bishop of Bath and Wels Case Gant to one iâ— time of vaâ—ation good 4 In the time of vacation a Grant made to a Covent is void Littl. § 443. Co. Inst p. 1. 264 a. 1. because the body Politique which is capable is not compleat but wanteth an head yet if during the vacatlou a Lease for life or a Gift in tail be made the remainder to the Abbot and his Successors this remainder is good because it is possible there may be an Abbot before the particular estate be determined There is the like Law of a Mayor and Comminalty c. Aâ—tornment good though â—ncertaine 5 If A. grant the Reversion of black acre or white acre Co. ib. 310. b. 2 and the Lessée attorn to the Grant Here nothing passeth at the time of the Attornment and that also is onely good in execution and by the subsequent election of the Grantée yet is not this a void Grant nor the Attornment fruitlesse because upon the Grantées election they may both be made good c. A remainder â—ay râ—st in a person uncertaine 6 It is regularly true that every remainder Littl. §. 721. Co. ib. 378. a. 2. 3 4. which commenceth by a Déed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate And yet if the person that is to take the Remainder be not in rerum natura as if a Lease for life be made the remainder to the right heires of I. S. I. S. being then alive it sufficeth that the inheritance passeth presently out of the Lessor but cannot vest in the heir of I. S. For that living his father he is not in rerum natura for non est haeres viventis neverthelesse the remainder is good for the possibility that I. S. may die during the life of the Lessée So if a man make a Lease for life to A. B. and C. and if B. survive C. then the remainder to B. and his heires here albeit the remainder is not at the time of the Livery certainly in B. neverthelesse the remainder is good for the possibility that C. may die before B. it being but a common possibility that one may die before another â—idem 7. If Lands be devised to I. S. for life Co. l. 1. 24. b. 4. in Porters Case upon condition that I. S. shall by the advise of Learned Counsel settle the same Lands within convenient time for certaine Vses which indéed are prohibited by the Statute of 23 H. 8. cap. 10. Albeit such Vses are by that Act prohibited yet if that Condition be not performed I. S. forfeits his estate because they might have béen setled by the advice of Learned Counsel and by purchasing an Incorporation and a licence to settle Lands thereupon c. He may rest in person â—â—certain 8 If I covenant with I. S. that in consideration of fatherly affection and for the advancement of my bloud Co. ibid. l. 1. 176. b. 4. Mildmayes Case I will stand seised to the use of such of my sonnes or such of my kindred as I. S. shall nominate In this Case upon the nomination the use shall be raised For the consideration is certaine and the person by matter ex post facto may be made certaine A possibility 〈◊〉 void â—ough not asâ—â—rable 9 A man possest of a term for divers yeares Co. ibid. L. 4. 66. b 1. in Fulwoods Case deviseth the profits thereof to one for life and after his decease to another for the residue of the yeares and dies the first Devisée enters by assent of the executor and after he in the remainder during the life of the first Devisée assignes it to another and after the first Devisee dies Here albeit during the life of the first Devisée the second Devisée had no estate that he could assigne over for the Devise to the first Devisee was upon the matter of all the term if he should so long live neverthelesse the second Devise is not void for the possibility that the second Devisée might over-live the first Howbeit that possibility he could not assigne over c. â—educement of a Lease to certainty 10 Every lease for yeares ought to have a certain commencement Co. ibid. L. 6. 35. b. 4. The Bishops of Bathes Case but that is to be understood when it is to take effect in interest or possession For if I grant to you that if you pay unto me 20 l. at Michaelmas next that then you shall have my Mannor of D. for 21 years here it is uncertaine whether that Lease shall ever have commencement or no for indéed until the payment of the money it is no Lease yet is it a good Lease in respect of the possibility that the money may be paid for then it will have a certaine commencement So also the continuance of a Lease for yeares ought to be certaine yet if a man lease the Mannor of D. to I. S. for so many yeares as I. N. hath in the Mannor of S. and I. N. hath 10 yeares in S. I. S. shall have so many in D So if a Lease be made to another during the minority of I. D. and he is ten yeares old that is a good Lease for 11 yeares if I. D. so long live for these two last Leases are by reference reduceable to a certainty In like manner if a man make a Lease from St. Michaelmas for so many yeares as I. S. shall name and I. S. names a certaine term in the life of the lessor this is a good lease for the possibility of rendring to a certainty by matter ex post facto viz. by the nomination c. Co. l 10. 50. b. 2 in Lampets ca. 15 H. 7. 10. Pl. Co. 55. a. Colv. and Biv Case 11 If land be given to a married man and a married woman Possibility of Marriage and the heires of their two bodies begotten this is a good estate taile for of necessity death will come and it is a common possibility that one may die before another that then the Marriage may insue c. 106 Id certum est quod certum reddi potest Co. Inst p. 1. 96. a. 2. 1 If a man hold of his Lord by shéering all his Sheep in his Mannor of D when the Lord keeps sometimes a greater number Service uncertaine in one respect certaine in another sometimes a lesse Here the service being referred to the number is uncertaine and if so then the tenant not distrainable for it for it is a Maxime that no distresse can be taken for a service that is not certaine but the service being referred to the Mannor is certaine and so is the tenant
frée-hâ—lds and inheritances incorporeal which lie in grant as advowsons and to Rents Commons Estovers and the like which Issue out of Lands or Tenements And not onely to such inheritances in esse but also to Rents Commons Estovers c. newly created As a man some say may grant a Rent c. out of the land for life in taile or in fée with Warranty for albeit there can be no title precedent to the Rent yet there may be a title precedent to the Land out of which it issueth before the grant of the Rent which Rent may be avoyded by the recovery of the Land in which Case the grantée may help himselfe by a warrantia cartae upon the special matter and so a Warranty in Law may extend to a Rent c. newly created as in Case of a Rent granted upon exchange or for owelty of Partition â—arranty â—es bind the â—eg 17 King H. 3. gave a mannor to Edmond Earle of Corne-wal Ibid. â—70 b. 1 Pl. 134. and 553 554. and to the heires of his body saving the possibility of Reverter and died The earle before the Statute of W. 2. de donis c. by déed gave the said Mannor to another in fée with Warranty in exchange for another Mannor and after the said Statute in the 28 of E. 1. dieth without Issue leaving assets in fée-simple which warranty and assets descended upon E. 1. as Cosin and heire of the said Earle viz. Son heire of H. 3. brother of Rich. E. of Cornewal father of the E. Edmund And it was adjudged that the King as heire to the Earle Edmund was by the Warranty and assets barred of the possibility of Reverter which he had expectant upon the said gift albeit the Warranty and assets descended upon the natural body of E. 1. as heire to a subject and E. 1. claimed the said Mannor as in his Reverter in Jure Coronae in the capacity of his body Politique in which right he was seised before the Gift Ibid. 372. b. 4 Co. lib. 2. 16. Wisemans Ca. 18 If Prince Henry Son of H. 7. had made a Gift in tail An intaile â—â—mainder in the King cannot be barredâ— the Remainder to H. 7. in Fée which Remainder by the death of H. 7. had descended to H. 8. so as he had the Remainder by descent yet might Tenant in tail barre the Estate tail by a common Recovery notwithstanding the Statute of 34 H. 8. 20. But if H. 7. in consideration of money or of assurance of Land or for other consideration by way of Provision had procured Prince H. by déed indented and enrolled to have made a Gift in tail to one of his Servants and subjects for recompence of service or other consideration the Remainder to H. 7. in Fée and all this appear upon Record This is a good provision within the said Statute and the Tenant in tail cannot by a common recovery barre the Estate tail Ibid. 384. b. 2 19 In a formedon in descender it is a good plea to say Warranty 〈◊〉 assets a good plea against the Issue in tail that the Ancestor of the demandant exchanged the land with the Tenant for other lands taken in exchange which descended to the demandant whereunto he hath entred and agréed or if the demandant hath not so entred and agréed then may the Tenant plead the Warranty in law and other assets descended for in such Cases there ought to be quid pro quo Ibid. 390. a. 4. 20 Tenant in tail maketh a feofment in Fée with warranty Remitter suspended by warranty anâ— assets and disseiseth the discontinuée and dieth seised leaving assets to his Issue some hold that in respect of this suspended warranty and assets the issue in tail shall not be remitted but that the discontinuée shall recover against the Issue in tail and he take advantage of his Warranty if any he hath And after in a Formedon brought by the Issue the discontinuée shall barre him in respect of the Warranty and Assets and so by such mutual recompence every mans right is saved Ibid. 23. 2. 21 If one make a feofment in Fée without valuable consideration to divers particular uses Use remaiâ—â— in the Feoffor so much of the use as he disposeth not is in him as his ancient use in point of Reverter It is otherwise if he make such a feofment for money or other valuable consideration Co. l. 1. 24. 2. 3 Porters Case 22 If a feofment be made to superstitious and unlawful uses A consideration makes thâ— feoffees seiseâ— to their own use the Statute of 23 H. 8. 10. makes the uses void but the feofment remaines good and the feoffées shall stand seised to the use of the feoffor and his heires but if in that Case the Feoffor shall reserve 1 d. Rent or receive from the Feoffées 1 d. consideration upon the feofment the Feoffées shall be seised to the use of themselves and their heires Co. ib. 106. a 4. 23 In Shelleys Case albeit the Recoverée died before execution Recovery iâ— value yet the judgment being to recover in value the Issue is thereby barred because he is thereby to have recompence Cited in the Rector of Chedingtons Case Co. l. 1. 154. a. 2 24 The Lord Paget An use must have good consideration being seised of the Mannor of A. B. c. covenants with I. S. and others that in consideration of the discharge of his funerals and payment of his debts and legacies out of the profits of his land and for the advancement of his Sonne and others of his bloud he and his heires would stand seised of the said Mannors to the use of the said I. S. c. for the life of the said Lord Paget and after his death to the use of Ch. P. and others for the term of 24 yeares and after the expiration or end of that term then to the use of Sir William Paget his Son in taile with divers remainders over and after the Lord Paget was attainted of treason In this Case it was adjudged that the term to Ch. P. c. was void because there wanted good consideration in as much as Ch. P. c. were strangers to the consideration aforesaid But if he had made them executors so that they might have béen chargable towards the payment of his debts and so made privy to the consideration then had such consideration béen good and the Estate made to them had also béen good â— general â—â—sideration 〈◊〉 good 25 An use cannot be raised by any covenant or Proviso C. l. 1. 176. a. 1. Mildmays Case or by bargaine and sale upon a general consideration and therefore if a man by déed intended and inrolled according to the Statute for divers good considerations bargaine and sell his land to another and his heires nihil inde operatur for no use shall be raised upon such general consideration
because there is not Quid pro quo which ought to be in every contract 46 The servant of A. was arrested in London upon Trespass Assumpsit and two Dier 272. 31. 10 El. who knew his Master bailed him afterwards A. promised them for their friendship to save them harmlesse from the damages and costs c. In this Case if they be afterwards charged an Action upon the Case lyeth not because there was no consideration for the bailing was on their own heads and was executed before the Assumpsit But if the Master had requested it before and assumed after ut supra it séemes to be otherwise As in considerarion that you have married my Daughter at my request I will give you c. This is a good consideration because the marriage ensued my request Hob. 6. 4. 18. 88. 47 Vide Hob. 4. Lané Malorie in Assumpsit Assumpsâ—â— the consideration was the delivery of two Statutes Staple to the Defendant Also Hob. 18. Woolastons Case in Assumpsit the consideration was a longer day And 88 Nichols Raynored the consideration was a promisse for promisse which must be at the same time otherwise they are nuda pacta Likewise 88 Brinsley and Partridge the consideration a former debt promised upon accompt Hob. 118. Shelton 48 Every Rate or modus decimand Tithe by prescription is a discharge of the natural title 109 De minimis non curat Lex Co. l. 5. 56. b. 3. Knights Case 1 In Office by commission under the Exchequer seale is enough to entitle the King to a Chattle Chequer seale Co. l. 6. 42. a. 2 S. Anth. Mildmays Case 2 The Law favours Estates taile in possession but gives no regard to Remainders or Reversions expectant upon an Estate in taile Rev. or Râ— upon an thâ— taile not â—luable for it is adjudged in Caples Case in the 1 Report that if Tenant in taile suffer a Common Recovery that shall not onely barre the Estate taile and the Remainder or Reversion but also a Rent which he in Remainder or Reversion hath granted So likewise was it adjudged in 12 El. betwixt Terling and Trafford in the Kings Bench that a Reversion or Remainder expectant upon an Estate taile shall not be assets to the heire in debt upon an obligation made by his Father Also Hil. 14 El. it was resolved by all the Iustices of C. Pl. in Copwoods Case that if there be tenant in taile the remainder to the right heirs of I.S. and Tenant in taile suffer a common recovery I.S. being then in life this shall barre the remainder albeit it were in abeyance and consideration of Law which the Law usually favours but de minimis non curat lex â—â—se for years â—â—eeble â—â—te 3 If Lessée for yeares pay a Rent seck Co. l. 6. 57. a. 4 Bredimans Ca. it is not seisin required in an Assise against the Tenant of the Frank-tenement in respect of the meanesse and imbecilitie of his Estate For at the Common Law he could prejudice nor draw into question the Estate of the Frank-tenement nor before the Statute of Glocester could be received albeit a recovery were had against the Tenant of the Frank-tenement by agréement neither could he falsifie a recovery before the Statute of 21 H. 8. and all this by reason of the Féeblenesse of his Estate 〈◊〉 attaint 4 In Trespas the Defendant pleads Villenage in the Plaintiffe and he was found frée and had 2 s. damages given him F. N. B. 107. l In this Case the Defendant shall not have an attaint for the finding of the Plaintiffe Frée because the damages are so small â—dition in 〈◊〉 broken 〈◊〉 5 There is a condition in Law annexed to the keep-ship of a Park Litt. §. 378. Co. Inst p. 1. 233. a. 4. viz. that if he do not well and lawfully kéep the Park it shall be lawfull for the Grantor and his heires to enter But this must be understood with a distinction For if the kéeper doth not attend on the Park one two or c. dayes this is no forfeiture of his Office but if in his default any Déere be killed whereby a damage comes to the Lord that is a forfeiture For non-user of it selfe without some special damages is no forfeiture of private Offices but non-user of publike offices which concern the administration of Iustice or the Common Wealth is of it selfe a cause of forfeiture â—â—covery not â—lable by 〈◊〉 outâ—â—y otherâ—â— 6 If a Recovery be had against a man in a praecipe by default when he is out of the Realme Co. ib. 260. b. 3 he shall not as it séemes avoid it by writ of Error for so a man might be infinitely delayed of his Frée-hold and Inheritance whereof the Law hath so great regard But out-lawry in a personal Action shall be avoided in that Case quia de minimis non curat Lex and otherwise he should be without remedy whereas in the other Case the Tenant may resort to his writ of higher nature or a quod ei deforceat for his remedy â—â—â—sion upâ—â— Estate 〈◊〉 of no vaâ—â—â— Law 7 If Lands be given to a man in taile Co. ib. 172. b. 3 who hath as much Land in Fée-simple and he die leading Issue two Daughters who make partition so as the Land in Fée-simple happens to the youngest Daughter Here if the youngest Daughter Alien the Fée-simple Land and die her heire shall enter for a pur part upon the entailed Lands And so it is also if the youngest Daughter had granted her part to another in taile For the Reversion expectant upon an Estate taile is of no account in Law because it may be cut off by tenant in tail â—â—covery 〈◊〉 or deâ—ging of â—â—â—aâ—y 8 If a man be seised of Lands in Fée and hath Issue two Daughters and make a Gift in taile to one of them and die seised of the Reversion in Fée which descends to both Sisters Co. Inst p. 1. 174. b. 1. and the Donée or her Issue is impleaded she shall not pray in ayde of the other Copercener either to recover per rata or to deraigne the Warranty paramount for that the Reversion is not of any estéeme in Law and the other Sister is a Stranger to the Estate Taile whereof partition neither was nor could be made Hob. 214. 9 The Earle of Somerset had obtained a grant of the licence of wines for yeares and tooke it in the name of Sir John Daccombe Wine Licence in trust for him Now the Question was whether or no by the Earles attainder of felony the lease was forfeited And by the opinion of all the Iudges it was forfeited and afterwards it was so resolved also in the Exchequer viz. in Cases of Chattels real and personal and things in Action of that sort 110 In Actions the Law yeeldeth favour when for the doing of them there is
being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
issue this warranty shall not barre the issue intail because this warranty did not discend to the issue in tail in regard the uncle of the issue himself was not bound to the warranty in his life time nor chargeable with it for that the Devise takes not effect until after his death Also if a man make a Feoffment in fée and bind his heires to Warranty this is void by the Warrant of this Maxime as to the heir because the Ancestor himself was not bound In like manner if a man bind his heires to pay a summe of money this is void And vice versa if a man bind himself to warranty and bind not his heires they are not bound Ego haeredes mei warrantizantibinius And Fleta saith Nota quod haeres non tenetur in Anglia ad debita antecessoris reddenda nisi per antecessorem ad hoc fuerit obligatus praeterquam debita Regis tantum A Fortiori in Case of warranty which is in the realty Howbeit the warranty in Law may bind the heir although it never bound the ancestor and this also may be created by a last will and testament As if a man devise lands to another for life or in tail reserving a rent the Devisée for life or in tail shall take advantage of this warranty in Law albeit the antestor was not bound and such a Devise shall also bind his heires to warranty albeit they are not named Co. l. 1. 83. b. Corbets Case 10 If a man covenant to stand seised to the use of himself for life An Estate to cease to one and to be in another repugnant the remainder to A. in tail the remainder to B. in tail c. Provided that if any of the remainders in tail shall resolve to alien that then the Estate of him so resolving should cease as if he were naturally dead and that it should then go to him in the next remainder here this Proviso is void and against Law for the repugnancie for by the words or act of the partie an Estate cannot be limited to cease as to one Ibid. 86. b. 4. 87 a. 4. per Walmesley and from thence-forth to be in another For if a man make a Lease for life upon condition that if he do not pay 20 l. such a day that another shall have the Land this future limitation is void also if a man make a feoffment in Fée of Land to the use of A. and his heires every Monday 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 and we find no such fractions of Estates in the Law And if Co-perceners agrée to present by Turn this is a partition as to the Possession yet neverthelesse they shall in a writ of Right So also partition that one of them shall have the land from Easter to Lammas and the other from Lammas to Easter in severalty this is good as to the possession and taking of the profits but it is no severance of the Estate of Inheritance Howbeit an act of Parliament or the Common Law may make an Estate void as to one and good as to another but a man by his words and the breath of his mouth cannot do it As if Land be given to Baron and feme and the heires of their two bodies and the Baron levie a fine with Proclamations and hath issue and dies now this fine by force of the Statute of 32 H. 8. 36. shall barre the issue in tail but shall not bind the feme and so in respect of one it is a good barre and in respect of another no bâ—rre Also in a Praecipe if one be vouched here as to the Demandant the Vouchée is Tenant and a Release to him by the Demandant is good but as to a stranger he is not Tenant and therefore a Release to him by a stranger is void in like manner if one hath a Term for yeares as Executor and surrender it here in one respect the Term is extinct but in another it is Assets So that an act of Parliament or the Law may do that in such Cases which a man by his words cannot do Co. l. 4. 1. b. 3. in Vernons Case 11 No collateral satisfaction or recompence made to the Feme Dower assigâ—ed either before or after marriage in liew of her Dower was any barre of her dower at the common law before the Stat. of 27 H. 8. 10. albeit after the death of her husband she entred thereinto and accepted thereof in recompence of her dower because by the marriage she being entitled to a fréehold for life that title shall not afterwards be barred by any collateral satisfaction Howbeit dower ad ostium Ecclesiae or ex assensu patris shall conclude her of her dower if she enter into the land so assigned after the death of her husband for the law doth allow these being made in such form as the law requires those kinds of dower to be made It is otherwise where the dower is made by the Act of party as aforesaid The principal Case there And therefore if B. enfeoffes to the use of himselfe for life remainder of his wife for life upon condition to perform his last will and for her jointure albeit after the death of her husband she accepts thereof yet she is not bound by it â—â—â—nt-tenants â—etition 12 If two joint-tenants since the Stat. of 31 H. 8. 1. Co. l. 6. 12. b. Morrices Case which gives them a writ of partitione facienda do make a partition by déed with consent albeit they are now compellable by that Statute to make partition yet because they do not pursue the Stat. to make partition by the writ such partition remaines at the common law and so by consequent the warranty originally annexed to their Estate is gone but if they make partition by writ provided by the Stat. to which every one being party none can have any wrong by the operation thereof the warranty shall remaine notwithstanding such partition in severalty because the first is by the act of the parties but the other is operation of the Statute which is an act in law so also if there be two joint-tenants with warranty and the one disseise the other and the disseisée brings an Assise here albeit the Plaintiff pray recovery in severalty yet he shall recover generally and in this Case also the warranty shall be preserved because he recovers by course of Law and with this agrées 28 lib. Ass Pl. 35. and Sir Edw. Coke also ubi suprà albeit there be some Bookes that he shall have judgment to hold in severalty as 10 E. 3. 40. 10. Ass Pl. 17. Tâ—e Shewing 〈◊〉 a Deed â—â—â—a 13 When a déed is requisite to be had ex institutione juris C. l. 6. 38. b. 2. Bellamies Ca. it ought to be shewed in Court although it concerne a
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
When a man conveys a thing to another by several words which will admit several acceptions Co. l. 2. 35. b. 3. 36. b. 4. Sit Rowland Heywards Case the interest of the thing granted passes presently and the grantée his heires or executors may make their election when and in what manner they will take it And therefore if a man seised of a Mannor part in demesne and part in lease demiseth bargaines and sels it to another for yeares the Lessée may make his election whether he will take it by demise at the Common Law or by bargaine and sale So also in Sir Rowlands Heywards Case in the second Report it was said if a man give two Acres of land habendum the one acre in fée and the other in taile and he alien both and hath Issue and dies in this Case the Issue may bring a Formedon in descender for which Acre he pleaseth for the election was not determined by the grantées death because the Estate past presently by the livery and the issue takes by discent â—e heires Eâ—tion 13 If a feofment be made to two and the heires of one of them Co. l. 2. 61. a. 3 Wiscots Case and he that hath the fée dies and after he Tenant for life dies in this Case the heire hath election to have a Mortdancester or a scire facias or a Formedon in remainder at his pleasure The Lords Eâ—ction 14 If there be Lord and Tenant by Knight-service Co. l. 2. 68. a. 4. in Tookers ca. and the Tenant die his heire within age here the Lord hath election either to seise the Ward or to distraine for the services and waive the Ward Per Popham Election of â—hings in â—gant 15 If Tenant in taile of a Rent Advowson Tithes Common Co. l. 3. 84. a. 4. in the Case of Fines or other such things which lie in grant grants them by déed in fée and dies the grant is not absolutely determined by his death but it is at the Election of the Issue to make the grant voidable or void at his pleasure for if he bring a Formedon for the Rent c. he makes the grant voidable but if he distraine for the rent or claime it upon the land he thereby determines his election and makes it void Co. l. 4. 81. a. 1 in Nokes Case 16 If a man seised of land in fée lets the same for life rendring Rent and besides binds himselfe and his heires to Warranty Election of Warranty here the expresse warranty takes not away the Warranty in Law for if he in reversion grant over his reversion and the Lessée attorn and after is impleaded it is at his Election whether he he will vouch the grantée by the warranty in Law or the Lessor by the expresse warranty Vide 20 E. 3. Tit. Counterplea de Garrantie 7. Co. l. 4. 82. a. 4. in Sir Andrew Corbets Case 17 If a man deviseth demiseth or limiteth by way of use land to another untill 800 l. be raised for the perferment of his daughters and dies Election of entry or actions and the heire or he in Reversion or Remainder enter upon him to whom the Land is devised demised or limited as afore-said and expulse him In this Case it is in the Election of the person so expulsed either to bring his Action and recover the meane profits which shall be accounted parcel of the summe or he may re-enter and hold the Land until he may levie the whole summe and the time in which he was so expulsed shall not be accounted parcel There is the same Law in other Cases viz. of Tenant by Elegit Statute Merchant Statute Staple Guardian who holdes over for the double value If he in the Reversion who is to have the Lands outs them they have such Election as afore-said either to hold over or to bring their action Co. l. 4. 93. a. 4 in Slades Case 18 For money due upon the sale of corne or the like Election of actions it is in the election of the Plaintiffe to bring an Action upon the Case or an Action of Debt 1 For the greater number of Presidents and Iudgment in the point 2 Every contract executory justly implies an Assumpsit 3 Recovery in an Action upon the Case barres in Debt 4 It is the more speedy Action for if the payment be at several days no debt lies till the last this lies upon the first breach 5 It is a formed action in the Register and may lie where Debt lies as appeares there Fol. 97 98 100 103. See Dier 20. 118. 28 H. 8. Gore Woddeys Case Co. ib 94. b. 4. in Slades Case 19 When the Register hath two writs for one of the same Case Election of action it is at the election of the party to take and use either the one or the other and it appeares by divers Cases in the Register that an action upon the Case will lie albeit the Plaintiffe may have for the same thing another formed Action in the Register F. N. B. 94. g. Register 103. b. So if a man hath a Mannor within an Honor and hath a Léet within his Mannor for his owne Tenants if he or his Tenants are distrained by the Lord of the Honor to come to the Léet of the Honor he that is so distrained may have a general writ of Trespas or a special writ upon his Case So if an Officer take toll of him who ought to be quit of toll he shall have a general writ of Trespas or an action upon his Case as appeares by Fizt ibid. If a Prior or other Prelate be riding upon his journey and one distraines the horse upon which he rides when he might distraine other of his goods in this Case he may have a general action of Trespass or an action upon his Case as appeares by the Register fol. 100. F. N. B. 93. b. So if a Sheriffe suffer one in execution upon a Statute Marchant to escape the Conusée may have an Action of debt or an action upon the Case as appeares by the Register 98. b. F. N. B. 93 B. C. So if a man â—ust the Executors of his Lessée for yeares from their terme they may have a special writ upon their Case as appeares F. N. B. 92. g. Register 97. and yet they may also have an Ejectione firmae or Trespass for in all Cases when the Register hath two writs for one and the same Case it is at the election of the party to take either the one or the other 〈◊〉 of 〈◊〉 for 〈◊〉 20 Where a Prior is the Kings debtor Co. l. 5. p. 1. 16. a. 2. in the K. Ecclesiastical Law and ought to have tithes of another spiritual person he may choose either to sue for subtraction of his tithes in the Ecclesiastical Court or in the Exchequer and yet the persons and matter also was Ecclesiastical
hath a good lawful right and yet if A. being out of possession granted away the land or contracteth for it with another he hath now made his good right of entry pretenced within the Statute of 32 H. 8. 9. and both the grantor and grantée within the danger thereof A forciori of a right of Action Quod nota â— joynt grant â—f a Rent-â—â—nge 6 A. enfeoffes B. upon Condition A. and B. joyne in the grant of a Rent-charge out of the land to C. the Condition is broken A. enters Co. l. i. 146 a. 2 Anne MayoÌ„es Case In this Case it was objected that this grant enured as the grant of B. and the confirmation of A. which confirmation could not alter the quality of the Estate Howbeit it was resolved and adjudged that the land was chargable with the Rent and one of the reasons alleadged for it was that every fée may be charged one way or other and when both joyne in the grant that have the whole interest in the land it must néeds be charged with the Rent for if it cannot be done by their joint grant there is no other way to do it Co. l. 3. 60. b. 1. in Lincolne Colledge Ca. 7 A. and B. fâ—ynt-tenants for life An entail docked by 〈◊〉 lease and to the heirs of the body of A. intermarry and have issue C. who after the death of A. disseises B. and suffers a Common recovery and B. releaseth with warranty and dies In this Case the Estate taile had béen barred albeit B. had not released with warranty for it is reasonable that the entaile should be cut off this way as well as by joyning in a fine or surrender of B. and recovery after against the heire because they both had power to barre the Estate taile one way or other having the whole Estate in them subject to be docked Co. l. 10. 48 b. 4 in Lampets ca. F. N. B. 152. g k. 8 Littleton saith Joinder of dâ—visees in a grant c. of a lease cap. Discout fol. 144. that it is a Maxime in the Law that land in fée-simple may be charged one way or other So also it is a Maxime in the Law that every right title or interest in praesenti or futuro by the joyning of all that may claime any such Right Title or Interest may be barred or extinct And therefore at the Common Law if the Donor and Donée had joyned in the grant of a rent-charge and after the Donée had died without issue and the fée had reverted to the Donor that he should have held it charged and yet he had but a possibility at the time of the charge made Because all those who had any Estate or interest therein in praesenti or in futuro did joyne in the charge So likewise à fortiori if they had joyned in a lease for yeares and the Donée had died without issue the lease had béen good against the Donor In like manner Lessée for 400 yeares devises for life to his executor The principal Case there the remainder to M. and dies M. maries her husband and she releases to the Executor In this Case albeit M. had but a possibility yet a release by her Husband and her to the Tenant in possession vests the whole interest of the term of 400 years in the Executor because none other had interest in praesenti or in futuro but those that joyned in the release and both consented to it the one in releasing and the other in accepting thereof For if they had joyned in an assignment of the term it had also béen good causa qua supra And in Case both joyne in a grant it is the grant of him that hath the term and the release or confirmation of the other Co. ib. 49. a. 3. Pasc 4 E. 6. in Co. Ba. 9 If a man make a lease to another for 21 years Lessor and Lessee joine if the Lessée shall so long live here if the Lessor and Lessée joyne in the grant of a term by Déed to another and after the Lessée die within the term so granted the grantée shall enjoy the land during the residue of the term absolutely Fuit tenus per Montague Hales Molineux Browne Co. l. 10. 101. a. 3. in Bewfages Case 10 In the Statute of 23 H. 6. 10. which enjoynes Sheriffes to take baile of prisoners within their guard for appearance upon reasonable suerty of sufficient persons c. Here these words Security to the Sheriffe Reasonable suerty of sufficient persons do not so restraine the Sheriffe but that he may if he please take suerty of one single person for the Statute leaves it to his discretion to take such security as he thinks fit because he is to be amercied if the party appeare not at the day in the writ and therefore it is at his peril if he take not good security of the party arrested and he hath liberty to waive that power by taking lesse security then the Statute mentioneth for those words import rather an advice then a command and Quilibet potest renunciare c. Dier 23. b. 148 28 H. 8. Stat. 27 H. 8. 10. 11 A man seised of land in right of his wife makes a feoffment in fée to his owne use and declares his will to be Upon grant by the Baron oâ— the Femes lanâ— though to her no remitter that the feoffées shall stand seised to the use of his wife for life And then comes the Statute of Uses 27 H. 8. 10. which saith that Cestuy que use shall be déemed in possession of such an Estate as he had in the use Here the Question was whether or no the Feme should be remitted And by Shelley it séemes she is remitted because she comes in not by her owne Act but by an Act in Law viz. by the Statute and there is none against whom she may bring her Cui in vita But Baldwin and Knightly è contra because she comes in by Act of Parliament to which every one is party and the Statute saith Cestuy que use shall be adjudged in such Estate as he had in the use for if Tenant in taile make a feofment in fée to his owne use in fée or fée taile the issue is not remitted because he had a fée-simple in the use and the Statute conveyes unto him such an Estate as he had in the use Ideo quaere â—â—sor â—â—see 12 A Lease is made for yeares upon Condition Dier 334. 3â— 16 Eliz. that the Lessée shall not alien to any person without the Lessors Licence the land nor any part thereof the Lessor gives him Licence to alien part the Lessee aliens the residue without Licence And it was adjudged that the Lessor might enter notwithstanding the dispensation with the condition in part and that the condition was intire â—â—re of an â—â—raile 13 Baron and Feme are Tenants in special
Condition that he shall kill J. S. the bond is void So if a man make a feofment upon Condition that the Feoffée shall kill I. S. the Estate is absolute and the Condition void so as he who intends any unlawful Act is still by the Law crost in the designe or purpose he aimes at Dier 28. a 16. 31 H. 8. 7 Vice is so odious in the eie of the Law Bloud corrupt that it will not suffer any to inherit who derives his title through bloud tainted with any Capital offence As if a man hath issue two Sonnes and the eldest in the life of the Father is attainted for felony and dies living the Father and after the Father dies seised of the land in Fée this land shall discend to the younger Sonne as heire to his Father if the eldest Sonne hath no issue living but if he hath issue in life who by the Law should inherit the Land if it were not for the Attainder and albeit he hath committed no offence yet the land shall not discend to him nor yet to the younger Brother but shall escheate to the Lord of the Fée 140 Interest Reipublicae ne maleficia remaneant impunita â—â—feit inâ—â— no good 〈◊〉 1 Where an Indictment is found insufficient Co. l. 4. 45. a. 1 in Vaux his Case the offender may be indicted again for in such Case Autre fois acquite or convict is no good plea because that plea is allowed upon that Maxime of the Common Law viz. that the life of a man shall not be put in jeopardy twice for one and the same offence Howbeit this is intended upon a lawfull acquital or Condition for otherwise his life was never put in jeopardy but when the Indictment or other procéeding against him are insufficient he may be re-indicted For the Law doth abhorre that great offences should passe un-punished according to these ancient Maximes of the Law and State Maleficia non debent remanere impunita impunitus continuum affectum tribuit delinquendo minatur innocentes qui parcit nocentibus Howbeit if upon an insufficient Indictment of felony a man hath had judgment quod suspendatur collum and so is attainted which is the judgment and end that the Law hath appointed for felony in this Case he shall not be again indicted and arraigned until that judgment be reversed by Error 〈◊〉 it goods 〈◊〉 2 The Reason why bona waviata viz. Co l. 5. 109. a. 4 in Fauxleys Case such shelme goods as a felon in flying waives or leaves behind him are forfeit to the King and that the owner shall in such Case lose his property in them is because of the negligence and default in the owner for that he made not fresh suit to apprehend the felon for Interest Reipublicae ne maleficia remaneant impunita impunitas semper ad deteriora invitat And therefore the Law hath imposed this penalty upon the owner that if the felon by his industry and fresh suit be not taken by such default he shall lose all his goods which the felon so leaves behind him â—â—â—es taken intendâ—â— 3 In many Cases Penal Statutes shall be taken by intendment Co. l. 11. 44. b. in Alexander Pollers Case and not according to the expresse words thereof especially when it is to remedy a mischiefe in advancement of Iustice and for the suppressim of Crimes and heinous offences of which sée many examples in the book at large quoted in the margent â—ption 4 In a writ of Reception F. N. B. 72. h. where after Replevin the party distraines again for that same thing the Sheriffe is comanded to apprehend the party so offending and so to chastise him by amerciament quod castigatio illa in casu consimili timorem aliis praebeat delinquendi 〈◊〉 breaâ—â— 5 A man was put into the Stockes upon suspition of Felony Dier 99. a. 60. 1 Max. and another comes who lets him go at large this is felony at the Common Law de frangend prison albeit the party that escaped be not indicted for felony â—â—lt â—â—â—der 6 In Banco Reg. in the Case of one Tripcony the Iury to the Nisi prius gave the Plaintiffe but 40 l. damages for the cutting of his right hand Dier 105. a 4. 1 2 P.M. and they were increased by the Iustices to 100 l. because this was matter apparent to the Court and the offence and trespass therein was caried about with the person howbeit in the Case of Sir John Bonham against the Lo. Sturton for slander where the damages were 500 Marks the Iustices said they could not lessen them Dyer 211. 33. 4 Eliz. 7 By the better opinion albeit the Statutes of 27 H. 8. 4. 28. H. 8. 15. Admiral be penal and ordaine that Commissions to heare and determine piracies shall be awarded to the Admiral and others to be named by the Chancellor yet the Lord Keeper being no Chancellor may grant such Commissions and that for the necessity to punish such offences 141 It favoureth Justice and right Co. Inst p. 1. 33. a. 1. 1 In a writ of Dower brought against the heire tout temps prist is a good plea before demand to barre the woman of the meane values and damages because the heire holdeth by title Plea in dowâ— and doth no wrong till a demand be made It is otherwise in a writ of Ayd Cosinage c. where the land and damages are to be recovered for there such a plea is not good because in that Case the Tenant of the land hath no title but holdeth the land by wrong Co. ib. 103. a. 4 b. 1. 2 If there be Lord and Tenant by Homage Ancestrel Homage ancestrel contiâ—nued and the Tenant alien the land in Fée although it be but upon a Condition which is performed at the day yet is the tenure gone for ever because the privity and Estate being once discontinued it is for ever after extinct But if the land be recovered against the Tenant upon a faint title and the Tenant recover the same again in an Action of an higher nature there the Homage Ancestrel remaines for the right which is favoureth in Law was a sufficient meane for the continuance thereof so it is also if he had reversed it in a writ of Error Co. Inst p. 1. 143. a. 4. 3 Before the Statute of quia emptores terrarum if a man had made a feofment in Fée rendring Rent he might have distrained for the Rent arreare of Common Right and in Case he had made no reservation of Rent or service yet the Feoffée should then have held of the Feoffor by such services as the feoffor held over of the Lord paramount So as albeit the Feoffor were negligent and made no provision or reservation of Rent or service yet the Law it selfe so much regarded Equity and Iustice that it created a tenure where the party was
consent to a ravishment and was so resolved in the case of Martin Trotte 32 Eliz. in Communi Banco and accordingly was the Opinion of the Court of Common Pleas Pasch 1. Jac. To this may be added as a like Case The Kings Patentee before he enter c. by all which you may observe a diversity betwixt a right for which the Law giveth a remedy by action and a Title for the which the Law giveth no remedy but by entry onely â—â—â—tinuall â—â—me 17. Regularly Continuall claime cannot be lawfully made Co. ibid. 250. b. 1. Litt. S. 414. but where hee that makes the claime hath present right or title to enter and yet in some cases where a man is left without other remedy a Continuall claime may be made by him that hath right and cannot enter As if Tenant for yeares Statute Merchants Staple or Elegit be outed and he in the reversion disseised the Lessor or he in reversion may enter to the intent to make his claime and yet his entry as to take any profits is not lawfull during the terme So likewise the Lessor or Reversioner may in such case enter to avoyde a collaterall Warranty or the Lessor in that case may recover in an Assise And so as some have holden may a Lessor enter in case of a Lease for life to the intent to avoyde a Descent or Warranty If the Disseisee make Continuall claime and the Disseisor dye seised within the yeare his Heire within age and by Office the King is intitled to Wardship in this case albeit the entry of the Disseisee be not lawfull yet may he make Continuall claime to avoyde a Descent â—â—â—nuall â—â—â—e 18. When a man for feare of death Co. Inst pars 1. 2 53. b. 4. Litt. S. 419. or some corporall hurt dare not make an actuall entry into land hee may approach as neer thereunto as he dare for such feare and claime the Land and this claime which is an entry in Law doth vest the possession and seisin in him for his advantage but not for any thing which may tend to his disadvantage as if he had made an actuall entry into the Land because otherwise he should be left without remedy â—â—lawry 〈◊〉 beyond 〈◊〉 reversable 19. If a Recovery be had against a man in a Precipe by default Co. ibid. 260. b. 3. when he was extra quatuor maria it shall not be reversed by a Writ of Error for that cause for that he is not left without remedy but may have his action of an higher nature or a Quod ei deforceat Howbeit if a man be outlawed in a personall action being then extra quatuor maria he may reverse it by a Writ of Error for otherwise he should be without remedy and besides de Minimis non curat Lex 20. Where a man cannot have advantage of the speciall matter by way of pleading Co. ibid. 283. a. 3. What not pleaded given in evidence he shall be permitted to take advantage thereof in the Evidence for otherwise he should be left without remedy For example the Rule of Law is that a man cannot justifie in the killing or death of a man and therefore in that case he shall be received to give the speciall matter in Evidence as that it was Se defendendo or in defence of his House in the night against Theeves or Robbers or the like Co. ibid. 312. b. 1. 21. If a Seigniory be granted to one for life the remainder to another in fee Attornment Acquittall the attornement of the Tenant to the Tenant for life is an attornement to the remainder also Howbeit if acquittall ought to be made or other priviledge had in such case albeit attornement be made to the Tenant for life and he acknowledge the acquittall c. Yet after his decease hee in remainder shall not distraine untill hee acknowledge the Acquittall also notwithstanding the Attornement of the Tenant for life for otherwise the Tenant should be without remedy Co. ibid. 347. a. 1. 22. By the policy of the Law Abbot capable to sue and be sued The Abbot termed the soveraigne albeit indeed he be but a Monke or secular person dead in Law yet hath he capacity and ability to sue and be sued to enfeoffe give demise and Lease to others and to purchase and take from others for otherwise they who right have should not have their lawfull remedy nor the House remedy against any other that did them wrong Co. ibid. 354. a. 3. 23. Regularly Baron remitted against his own alienation a man cannot be remitted against his owne alienation yet if there be Baron and Feme in speciall tayle and the Baron alien the Land to another in fee and take an estate backe to him and his Wife for their lives in this case the Baron is remitted against his owne alienation as well as the Feme for the Feme cannot be remitted without the Baron be remitted also and rather then the Feme should not by Remitter have remedy and her ancient right restored to her the Baron shall be also remitted against his owne Grant Litt. S. 673. And therefore in that case if there were any remainders in taile upon the speciall taile and last of all a reversion or remainder in fee above them upon taking backe of the estate for lives by the Baron all those in remainder or reversion are also remitted Co. ibid. 376. a. 3. c. 24. By the Rule of Law One that is not heire at Law may be vouched to warranty a Warranty made by the Father descends upon his heire at the common Law and he onely is to be vouched to maintaine the same yet in some cases lest the Voucher should be without remedy they that are not Heire at Law may be vouched As if a man enfeoffeth another of an acre of land with warranty and hath issue two Sons and dyeth seised of another acre of land of the nature of Burrow English the Feoffee is impleaded here albeit the Warranty descendeth onely upon the eldest Son yet may he vouch them both the one as heire to the Warranty and the other as heire to the land For if he should vouch the eldest Son onely then should hee not have the fruit of his Warranty Viz. a recovery in value and the youngest Son onely he cannot vouch because he is not heire at the common Law upon whom the Warranty descendeth So it is also of heires in Gavelkind the eldest may be vouched as heire to the Warranty and the other Sons in respect of the Inheritance descended unto them In like sort the heire at the common law and the heire of the part of the Mother shall be vouched Howbeit the heire at Law may be vouched alone in both these cases at the election of the Tenant sic de similibus In the same manner if a man dye seised of certaine lands in fee having issue
350. if he may enter he must enter and when he cannot enter he must make a claime for that a Freehold and Inheritance shall not cease without entry or claime And yet if Land be granted to a man for terme of five yeares upon condition that if he pay the Grantor within the first two yeares fourty pounds that then he shall have fee or otherwise but for the terme of five yeares and livery of seisin is made unto him by force of the Grant In this case if the Grantee pay not unto the Grantor fourty pounds within the first two yeares then immediately after the first two yeares the Fee and Frank-tenement shall be adjudged in the Grantor without entry because the Grantor cannot presently after the two yeares enter upon the Grantee Co. ibid. 21 a. 4. for that the Grantee hath yet a terme of three yeares in the Land and in as much as hee cannot enter hee shall not be driven to make any claime to the Reversion For seeing by construction of Law the Freehold and Inheritance if the Condition had beene performed was to passe Maintenant out of the Lessor by the like construction the Freehold and Inheritance by the default of the Lessee shall be revested in the Lessor without entry or claime There is the same Law of a Grant by Devise Lease and Release Bargaine and Sale by Deed indented and inrolled c. or whether it be of an Advowson Reversion Remainder Rent Condition or any other thing that lyes in Grant Feme recovered without Baron 53. The Husband is the Wives head Co. ibid. 352. b. 4. Litt. S. 668. and regularly shee can do nothing without him and yet in an action of Waste if the Baron make default to the great Distresse the Feme upon prayer shall be received and shall shew the whole matter and how shee is in her Remitter and shall barre the Lessor of his Action And albeit this priviledge be given the Feme by Westm 2. cap. 3. yet ancient Authors who wrote before that Statute do speake of such a kinde of receipt at the Common Law for otherwise the Feme would be without remedy Judgement upon a dead â—an 54. It seemes irregular Co. ibid. 390. b. 4. that Iudgement should be given upon a man already dead And yet in 8 Ed. 3. Judgement 225. the Defendant in an appeale of death did wage Battell and was slaine in the Feild yet Iudgement was afterwards given that he should be hanged and the Iustices sayd such Iudgement was necessary because otherwise the Lord could not have a Writ of Escheate and so would be without remedy Co ibid. 393. a. 4. 55. Regularly Two Recoveries upon one warranty there cannot be two recoveries in value upon one warranty and yet in some speciall cases rather then a man shall be without remedy there shall be two such recoveries for if a disseisor give lands to the Husband and Wife and to the heires of the Husband the Husband alieneth in fee with warranty and dyeth the Wife bringeth a Cui in vita the Tenant voucheth and recovereth in value if after the death of the Wife the Disseisee bring a Precipe against the Alienee he shall vouch and recover in value againe Co. l. 8. 61. a. 3. in Beechers case 56. In all actions reall and personall No amerciament against the Plaintiff if part be found for the Demandant or Plaintiff and part against him or all or part against the one Tenant or Defendant and nothing or but part against the other the demandant or Plaintiff shall be amerced Howbeit in Trespasse of Battery against Baron and Feme supposing the battery to be done by them both and the Feme is onely found guilty c. and the Baron acquit yet in this case the Plaintiff shall not be amerced because the Plaintiff in such case can have no other Writ and therefore he shall be excused Vide Max. 149. 41. 57. Vide 143. 15. Dyer 8. a. 28. H. 8. Pl. 11. 16. 58. In a Writ of Ward the Writ supposeth that B. held the land c. Variance inter writ and count no error and the Count declareth that B. was but Cestuy que use so as the Feoffees held the land and not B. Here this variance is no Error because the Statute of 4 H. 7. which gives the wardship of Cestuy que use appoints no speciall Writ for it and therefore the generall Writ and speciall Count suffiseth for otherwise the Lord should be without remedy which the Law will not permit So in a Warrantia Cartae the words of the Writ are Unde cartam habet and yet the Count may be upon warranty for Homage Ancestrel Dyer 56. 17. 35 H. 8. 59. A Writ of Right Quia Dominus remisit Curia Feme Covert c. was brought by Baron and Feme the Feme being under age the Feme appeares by Procheine amie who was admitted by the Court and upon the Tenants voucher and default of the Vouchee shee had judgement finall c. without her Husbands appearing in the action Vide supra 10. Dyer 206. 11. 3 4. Eliz. 60. A man makes a Lease for yeares to begin at a day to come Waste and before the day the reversion is granted over divers times afterwards the Termor enters and makes waste and the fourth Assignee bring waste and counts of the assignment and tenure of each of them to whom the Land came after the Lease albeit there was no tenure before the commencement of the Lease and it was held good and so it is also in the Regester Hob. 3. Pincombes case 61. Albeit regularly a warranty ought onely to be annexed to a freehold and not to any lower estate Warranty is a covenant yet when the breach or impeaching is not of a Freehold but of a chattell Viz. of a Lease for yeares for which there can neither be Voucher Rebutter nor Warrantia Cartae an action of Covenant may be grounded upon such a Warranty As if A. demiseth the Monnor of D. to B. for one and thirty yeares and afterwards grants it to C. in possession for life with warranty against him and his Ancestors C. may bring an action of Covenant upon that Warranty and shall recover damages thereupon See the Book at large Hob. 48. Coxes case 62. Lands in Ancient demesne where the possession is stirred Ancient demesne cannot be recovered but within their owne Franchise or Iurisdiction and this is regularly true yet actions at the Common Law upon which no remedy can be had in ancient demesne do lye in the Kings Court though they stir the possession as in a Quare impedit 7 H. 6. 35. because they cannot write to the Bishop And the reason is because the Common Law being as ancient as their priviledge is will not endure that by pretence of Priviledges there should be a Failer of Originall Right as that
Possession of the Land need make no claime upon the Land and therefore the Law shall adjudge the rent void without any claime Claime the like 8. If a man make a Feoffment unto me in fee Ibid. upon condition that I shall pay unto him twenty pounds at a day c. and before the day I let unto him the Land for years reserving a rent and after faile of paying the twenty pounds In this case the Feoffor shall retaine the Land to him and his Heires and the rent is determined and extinct for that the Feoffor could not enter neither hath he need to claime upon the Land because he himselfe was in Possession and the Condition being collaterall is not suspended by the Lease The like 9. If a man by his Deed in consideration of Fatherly love Ibid. b. 1. 237. a. 2. c. covenant to stand seised to the use of himselfe for life and after his decease to the use of his eldest Son in tail the Remainder to his second Son in taile the Remainder to his third Son in fee with a Proviso of revocation c. The Father makes a Revocation according to the Proviso In this case the whole estate is immediately upon the Revocation revested in him without Entry or Claime causa qua supra Release good 10. A Release to a Tenant at sufferance as to one that holds over his terme is void Co. ibid. 270. b. a. Litt. S. 460 461. but a Release to a Tenant at will by the Owner of the Land is good to convey the Inheritance unto him because there is between them a Possession with a privity for it would be in vaine to make an estate by Livery to him who hath already Possession of the Tenements by the Owners consent Averment 11. That which is apparent to the Court by necessary collection out of the Record need not be averred for it were vaine to aver that Co. ibid. 303. b. 3. which is apparent to the Court already Attornment of T. in tail 12. Albeit Tenant in taile may attorne where the Reversion of his estate is granted over yet he is not compellable to attorne Co. ibid. 316. a. 4. although such Grant of the Reversion be by Fine because he hath an estate of Inheritance which may continue for ever and therefore it were a vaine thing to require any Attornment from him Attornment 13. If a Lease be made for life the Remainder to another in tail Litt. S. 578. Co. ibid. 319. b. 1. the Remainder to the right heires of the Tenant for life In this case if the Tenant for life grant his Remainder in fee that Remainder passeth without Attornment for here if any should attorne it should be the Tenant for life and it were in vaine for the Tenant for life to attorne upon his own Grant Attornment 14. In these eases following Co. ibid. 318. a. 4. the Tenant is not compellable to attorne because if he should it were in vaine for him so to do As 1. if an Infant levy a Fine the Tenant shall not be compelled to attorne because the Fine is defeasible by Writ of Error during his minority So if Land be holden in ancient demesne and he in the Reversion levieth a Fine of the Reversion at the common Law in this case the Tenant shall not be compellable to attorne because the estate that passed is reversible by a Writ of Disceit Also if Tenant in tail before the Statutes of 4 H. 7. and 32 H. 8. had levyed a Fine the Tenant should not have been compelled to attorne because it was defeasible by the issue in tail but since those Statutes which give strength to Fines to bar the Issue in tail the reason of the common Law being taken away the Tenant in this case shall now be compelled to attorne as it was adjudged in Iustice Windhams case Co. l. 3. fol. 86. Lastly if an alienation be in Mortmaine the Tenant shall not be compelled to attorne because the Lord Paramont may defeate it Co. l. 5. 21. a. 1. Sir Anthony Maines case 15. A. Leases for one and twenty years to B. and is bound to make a new Lease to B. upon surrender of the old A. Disability to make surrender Leases to another for eighty years by Fine in this case the Bond is forfeit Albeit the first act is to be done by B. viz. to surrender and albeit he never surrender for by the Fine levyed for eighty years A. hath disabled himselfe both to take the Surrender and to make a new Lease And the Law will not enforce a man to doe a thing which will be vain and fruitlesse To make Feoffment Lex neminem cogit at vana inutilia per agenda but it would be a vaine thing to compell B. to surrender to A. when A. is not in a capacity to take it So if a man seised of Lands in fee Covenants to enfeoff I. S. of them upon request and after he makes Feoffment in fee of the said Lands in this case I. S. shall have an Action of Covenant without request because it would be in vaine for I. S. to make request when the other hath disabled himselfe to do it Co. l. 5 121. b 4. in Longâ— case 16. In some cases upon an Indictment of Man-slaughter it may be requisite to expresse the length and depth of the wound A wound upon an Indictment because it may appeare thereby whether or no the wound was mortall but when the wound penetrates through the body it is not necessary to shew them because it were vaine to shew them when the wound appeares to be mortall of it selfe without producing those dimensions Co. l. 9. 54. a. 4. in Batens case 17. In a Quod permittat brought by A. against B. for building an House so neare the House of A. that it jutties over the House of A. it is sufficient to say Nusance Ad nocumentum liberi tenementi ipsius A. without assigning any speciall Nusance for it were in vaine to assigne any such speciall Nusance when it appeares to the Court that it must needs be to the Nusance of the Plaintiff because the raine which falls from the House of the Defendant must of necessity fall upon the House of the Plaintiff And Cujus est solum ejus est usque ad Caelum Also by over-hanging of the Defendants House the Plaintiff is hindred of Aire and building his House higher c. Co. l. 9. 106. a. 4. in Margaret Podgers case 18. A. being Copy-holder for life Remainder for life Fine of a Copyhold in bar the Lord bargaines and sels and levies a Fine to A. with Proclamations and five years passe without any claime by those in Remainder neverthelesse they in Remainder shall not be barred for no Fine or Warranty shall bar any estate in Possession Reversion or Remainder which is not devested
Disclaimer Error 2. If the Tenant disclaime Co. l. 8 61. b. 4. in Beechers case he shall not have a Writ of Error against his Disclaimer because by his Disclaimer he hath barred himselfe of his right in the Land for the words of the Disclaimer of the Tenant are Nihil habet nec habere clamat in illa terra nec die impetrationis brevis originalis c. habuit sive clamavit sed aliquid in illa terra habere deadâ—ocat disclamat And against this he cannot have a Writ of Error to have restitution of the Land against such Disclaimer Vide 6 E. 3. 7. F. N. B. 22. c. 170. None shall take exception to an Error or Act which operateth to his own advantage Co. l. 3. 69. b. 4. Lincoln Colledge case 1. C. and F. Ioynt-tenants for life Collaterall Warranty and to the heires of the body of C. intermarry and have Issue E. who after the death of C. disseiseth F. and suffers a common Recovery F. releaseth to the recoverors with Warranty and dyes also E. dyes without Issue and R. as heire male of the body of C. brings his Formedon in Descender and here the question was whether or no the collaterall Warranty of F. did bar the Demandant or that the heire in tail might have the Land by force of the Statute of 11 H. 7. 20 which gives Entry to the next Heire upon Discontinuance c. of the Inheritance of the Husband by the Feme But it was resolved that this case was out of the intention of the said Act because the intention of that Act was to restraine such women to make Discontinuance Warranty or Recovery in bar or prejudice of the heire in taile or of them in Remainder c. but when the heir in tail himself conveys assures the Land to others the release or confirmation of the Feme with Warranty is but to make perfect and corroborate the estate which the heire in tail hath made and therefore such Warranty is not restrained by the said Act for it shall be intended for the benefit of the heirs in tail and not to their prejudice And this is also the reason why a common Recovery in respect of the intended recompence was not restrained by the Statute of West 2. Co. l. 8. 59. a 3 in Beechers case 2. For the reversall of a Iudgement a man shall not assigne for Error that which maketh for his advantage Assignment of Error as to alleadge that he was essoined where he ought not to have been essoined or that he had a longer day then the common day or that he had ayd granted to him where it was not grantable or the like Vide 7 E. 3. 25. per Herle 8 H. 5. 2. 11 H. 4. 8. F. N. B. 21. f. Co. l. 11. 56. a. Benhams case 3. M. brings a Writ of Annuity against B. and they being at Issue Insufficient Verdict the Iury found for the Plaintiff and also the arrearages but did not assesse any damages or costs whereupon the Verdict was imperfect neither could it be supplyed by a Writ to inquire the damages Howbeit afterwards the Plaintiff released his damages and costs and thereupon had Iudgement whereupon the Defendant brings a Writ of Error and assignes for Error the insufficiency of the Verdict but the Iudgement was affirmed because the Plaintiffs release of the damages and costs was for the Defendants benefit and advantage and therefore ought not by him to be excepted against Vide 22 Eliz. Dyer 369 370. Where in a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lyeth not for the heire yet the Plaintiff released his damages and had Iudgment for the Land Note that insufficient Assessment of damages and no Assessment is all one F. N. B. 22. d. 25. c. 4. It is not Error to suffer one to make an Attorney in an Action Attorney in which he ought not to make an Attorney because that is for his advantage 171 Nemo tenetur armare adversarium suum contrase Challenge 1 He that challengeth a Iuror for the hundred or for Cosinage Co. Inst pars 1. 157. a. 2. 4. must shew in what hundred he hath no land and how he is of kin and shall not drive the other party to shew it 2 The Plaintif in a Replevin pleads in barr of an Avowrie for damage fesant Co. l. 5. 78. b. 3. Grayes case that he hath common of Pasture by custom in the place where c. belonging to his Copyhold which custom was traversed and it was found that he had such Common there but withall that every Copyholder had used to pay time out of mind c. pro eadem communia unam Gallinam quinque ova annuatim and it was adjudged that upon this verdict the Plaintif should have Iudgement albeit he omitted in his barr the yearly payment of the Hen and five eggs And the reason was because the Plaintif was not bound to shew more than what made for him and tended to his advantage 172 It favoureth Diligence And therefore hateth Folly and Negligence Waste 1 Waste may be done in houses by suffering them by negligence to be uncovered whereby the spars fasters planchers Co. Inst pars 1. 51. a. 2. b. 2. or other timber of the house become rotten So likewise if he suffer a wall of the sea to be in decay so as by the flowing and reflowing of the sea the Meadow or Marsh adjacent is surrounded whereby the same becomes unprofitable Also the burning of an house by negligence or mischance is waste Waste 2 A prohibition of waste did lye at the Common law against tenant by the Curtesie tenant in Dower and a Guardian in Chivalry Co. ibid. 53. b. 4. because they were in by the Law but not against tenant for life or years because they come in by the Act of the lessor himself and therefore it is imputed to his own folly and negligence if upon granting the term he made not sufficient provision against committing of waste for in that case the Law did not aid him Vide Co. l. 4. 62. b. 3. in Herlakendens case Co. l. 5. 13. b. 3. in the Countess of Salops case Guardian in soccage 3 If Guardian in soccage marry the heir under 14 years of age without a convenient fortune Co. ibid. 88. a. 3. Littl. §. 123. he is compellable to make it good upon his accompt for it will be imputed to his own folly that he married him without provision of a convenient portion answerable to his estate Goods gaged 4 If goods be delivered to one as a gage or pledge Co. ibid. 89. a. 4. and be afterwards stollen from him yet he shall be discharged of them because he hath a property in them and therefore he ought to keep them no otherwise than as his
own Tender but if he that gaged them tendred the money before the stealing and the other refused to deliver them then for this negligence and default in him he shall be charged with them Default in reâ—â—â—ictions 5 In real actions where Voucher lyeth Co. ibid. 101. b. 4. if the Sheriff return that the Vouchée is summoned and he make default then a Magnum Cape ad valentiam is awarded when if he make default again then Iudgement is to be given against the tenant Also if the vouchee do appear and after make default then a Parvum Cape ad valentiam is awarded and if he thereupon make default again then judgment is to be given as before Villein 〈◊〉 Lords 〈◊〉 6 If a Villein purchase land Co. ibid. 118. a. 4. b. 1 2. Littl. §. 177. and alien the land to another before the Lord enter In that case the Lord cannot enter for it shall be adjudged his folly that he entred not when the land was in the Villeins hand So it is likewise if a freeman hath issue and afterwards by confession becometh bond and purchase lands in fee and before the Lord enter he dieth seised and the land descends to his issue which is free in this case also the Lord shall not enter The like Law it is if the land so purchased by the Villein escheat to the Lord of the fee before any entry made by the Lord of the Villein as if the Villein dye without heir or be convict or outlawed for felony or if a recovery be had against the Villein in a Cessavit or the like in all such cases it will be imputed to the folly of the Lord of the Villein that he entred not in time when he might Also if a Villein be disseised before the Lord doth enter the Lord may enter into the land in the name of the Villein and thereby goin the Inheritance of the land but if there be a descent cast so as the entry of the Villein is taken away then the Villein must recontinue the estate of the land by judgement and execution before the Lord of the Villein can enter So if the Villein purchase lands in tayl and alien before the Lord enter the Lords entry is taken away causa qua supra but if the Villein dye and his issue recover the land entayled in a Formedon then the Lord may enter The like law is also of Seigniories Co. ibid. 2. Advowsons Reversions Remainders Rents Commons certain and such like certain Inheritances And all the reason of these â—â—â—es is besides the Lords folly and negligence because the Lord before his entry hath no interest but only a bare possibility Howbeit it is otherwise in the Kings case after office found because nullum tempus occurrit Regi Co. ibid. 118. a. 4. b. 3. Littl. §. 177. 7 If a Villein purchase goods or chattels Villein The Lords seisure of Goods and sell or give them away before the Lord seise them his title to the goods is gone for the Law imputeth it to his folly and negligence as before of lands c. for a bare claim of the goods of the Villein is not sufficient in Law but he must seise some part in the name of all the residue or that the goods be within the view of the Lord for the claim and view amount to a seisure as the claim of a Ward being present by word is a sufficient seisure albeit the Guardian layeth no hands of him And here under the name of goods and chattels are comprehended not only personal goods as an Horse a Cow Housholdstuff and the like but also chattels real as Wardships Leases for years Interests by Statute staple Statute merchant Elegit or the like and the gifts aforesaid do not only extend to gifts in deed but likewise to gifts in Law And therefore if a Wife hath goods and taketh Baron upon this gift in Law by force of the marriage the land is barred So likewise if a Villein having goods make his executors and dye by this gift in Law the Lord is barred for his folly and neglect Co. ibid. 131. a. 4. 8 In an action where a Protection lyeth â—â—â—tectiâ—n if after it is allowed the party tarrieth in the Country without going to the service for which he was relieved above a convenient time after the Protection had or otherwise withdraw himself from the service upon Information thereof to the Lord Chancellor he shall repeal the Protection in that case by an Innotescimus See the Statute of 13 R. 2. 16. Littl. §. 261. Co. ibid. 173. a. 4. 9 If lands be given to a man in tayl Partition who hath as much Feesimple lands and hath issue two daughters and dye and the daughters make partition and the feesimple lands are assigned to the youngest daughter for her purparty and the entailed lands to the elder and the youngest daughter aliens the feesimple lands and having issue dies In this case the issue of the youngest daughter may enter into the moiety of the entailed lands notwithstanding such partition for it will be imputed to the folly of the eldest daughter that she agreed to such a Partition whereas she might have had upon the Partition the moyety of the one and also of the other because in a writ of Partition she was not compellable to take the whole estate in tayl but might have challenged moities in each as aforesaid and that ex provisione legis But when she will not submit her self to the policy and provision of Law but betake her self to her own policy and provision there the Law will not ayd her So likewise if a man be seised of three Manors in fee of equal value Dower and taketh wife and chargeth one of the Manors with a rent-charge and dieth the wife may by the provision of the Law take a third part of all the Manors and hold them discharged but if she will in folly accept the entire Manor charged she shall hold it charged with the rent Mortgage 10 If the Mortgageor tender the money at the day to the Mortgagée and the Mortgagée refuse it and the Mortgageor thereupon enter Littl. §. 335. Co. ibid. 207. the Mortgagée is without remedy at the Common Law for it will be imputed to his folly that he refused it when lawfull tender thereof was made unto him Vide Max. 80. case 24. Bastard Mulâ—er 11 If there be a Bastard eygne and Mulier puisne Littl. §. 399. 401. Co. ibid. 244. and after the fathers death the Bastard enter and peaceably enjoys the land without entry of the Mulier all his life and having issue dieth seised In this case the Mulier is barred for ever for it is imputed to the folly and negligence of the Mulier that he entred not during the life of the Bastard and albeit the Mulier were under age or covert baron at the time of
the descent cast or that after the death of the Bastard the Mulier entred before the heir of the Bastard yet none of these cases shall aid or help the Mulier Vide infra 25. Entry of feme covert 12 If a Feme covert have title of entry into lands Co. ibid. 246. a. 3. and her husband neglects to do it and during his life a descent is cast yet after her husbands death the feme may enter notwithstanding the descent But if a feme sole be seised of lands in fée and is disseised and then taketh husband In this case the dying seised of the disseisor shall take away the entry of the wife after the death of her husband because it will be accounted folly in the feme as well for that she did not enter when she was sole as that afterwards she took an husband who would not enter before the descent cast It is otherwise if the woman were under age at her marriage for then it will not be imputed to her folly but her husbands or it the Land were entailed and only disconnued Continual claim 13 If a man be disseised Co. ibid. 353. b. 4. Litt. §. 426. Co. ibid. 256. a. 2. Littl. §. 440. Co. ibid. 261. b. 4. and the disseisor die seised within a year and a day after the disseisin made whereby the tenements descend to his heir in this case the entry of the disseisée is taken away for the year and day shall not be taken from the time of his title of entry accrued but only from the time of the claim by him made and therefore it it will be accounted his folly that he made not his entry immediatly after the disseisin committed which he ought to have done Howbeit this is now holpen by the State of 32 H. 8. cap. 33. for now by that Statute if the disseisor dye seised within five years after the disseisin though there be no continual claim made it shall not take away the entry of the disseisin but after the five years there must be such continual claim as was at the Common Also that Statute extendeth not to any Feoffée or Donee of the disseisor immediate or mediate but they remain still at the Common Law as they were before the making of the said Statute Remitter 14 If tenant in tayl enfeoff his heir apparent Littl. §. 664. Co. ibid. 350. b. 1. the heir being of full age at the time of the feofment and after the tenant in tayl dyes this is no remitter to the heir because it was his folly that he being of full age would take such a feofment for albeit the heir apparent might have some benefit there by in the life of his ancestor yet was he by taking such a feofment besides his own subject during his life to all charges and incumbrances made or suffered by his ancestor Howbeit it is otherwise if he were under age in respect of his tender years and want of experience Liâ—tl §. 682. Co. ibid. 358. b. 4. 15 If tenant in tayl hath issue two sons of full age Remitter and he demiseth the land to the eldest son for life the remainder to the younger son also for life and dies In this case the eldest son is not remitted because it was his folly to take such an estate of his father which created a tortious feesimple but if the eldest son die without issue the younger son shall be remitted because no folly can be imputed to him for that the franktenement was cast upon him by force of the remainder Littl. §. 725 726. Co. ibid. 380 a 16 At the Common Law before the Statute of the 11 H. 7. 20. Warranty to barr entry if tenant in Dower or for life had aliened the land with warranty and the warranty had descended upon the heir reversioner or remainder-man being yet under age In such case they might have entred upon the alienee because no lachess or folly could be adjudged in them being under age that they did not enter in the life time of the terretenant But if the heir reversioner or remainder-man were within age at the time of the alienation and becoming of full age in the life of such terretenant did not enter they were barred by such warranty because it was imputed to their folly that they being of full age entred not in the life time of the tenant in Dower or for life Co. l. 1. 177. b. 1. in Mildmâ—yes case 17 Where a lease is void in Law Slander yet if one ignorant of the Law taking upon him to know the Law and medling in a matter that he hath nothing to do withall will report and affirm openly that such a lease is good to the prejudice of anothers title that other may have an action upon the case against the reporter and recover damages according to his prejudice for in such case Ignorantia Juris non excusat Co. l. 2 26. b. 3. in the case of Bankrupts 18 By the Statute of 13 El. 7. Bankrupts distribution is to be made to all the creditors rate and rate-like viz. to such of them as are willing to come in as Creditors but a Creditor that either obstinately refuseth or carelesly neglects to come before the Commissioners and pray the benefit of the Statute shall not be admitted to have any share with the rest for vigilantibus non dormientibus Leges subveniunt Co. l. 3 9. a. 2. in Bâ—vâ—lls case 19 Seisin of one yearly service is not seisin of another yearly service Lord and tenant as if there be Lord and tenant by fealty rent of 10 s. and three work-days yearly seisin of the rent is not seisin of the work-dayes neither is seisin of the rent seisin of sute of Court which is annual Vide 16 El. Dyer 330. d. And the reason is because it shall be imputed to the folly of the Lord that he did not obtain seisin of that which was yearly due unto him and besides it would be mischievous to the tenant for peradventure in antient time the work-days were discharged which now cannot be shewed whereupon might ensue sutes and trouble Co. l. 7. 6 a. 3. in Sâ—nd ls case 20 If a man be robbed in his house in the day time or in the night Robbery the Hundred in which that house is situate shall not be charged therewith for albeit the words of the Statute of Winchester are general without mentioning any place in special yet such Robbery is not within the said Act for divers reasons amongst which this is one viz. because the house of every one is his castle which he ought to keep and defend at his peril and therefore if any be robbed in his house it shall be imputed to his own negligence and default Co. l. 8. 72. b. â— in Greneleys case 21 By the Statute of 32 H. 8. c. 28. Entry by Feme Discontinuance by
fine by the husband of the wives lands shall not barr her entry after his death yet if she make not her entry within five years after her husbands death she shall be barred by the Statute of 32 H. 8. cap. 36. notwithstanding the said Statute of 32 H. 8. 28. for it will be imputed to her folly that she did not enter within the time limited by 32 H. 8. 36. â—â—â—d Mesne â—enant 22 If there be Lord Mesne and tenant Co. 9. 23. a. 1. in the case of Avowrie and the Lord distrains the tenant for rent arrear c. in this case the tenant ought to request the Mesne to put his cattel into the pound and thereby release the tenants and if the Mesne refuse so to do or otherwise acquit not the tenant by payment of the rent c. the tenant may have a writ of Mesne c. but if the tenant will replevy the Cattel and have deliverance of them himself and then the Lord avow upon a stranger In this case the tenant is without remedy by his own default for it will be accounted folly in the tenant that he did not request the Mesne to acquit him as aforesaid â—â—isoner 23 A Prisoner cannot wage his law for meat and drink had of the Gaoler Co. 9. 87. b. 4. in Pinchons case because the Gaoler being enjoyned by Law to kéep the prisoner in salva arcta custodia Inn-keeper is compellable to find him victuals But if a Victualler or an Innkéeper bring an action of debt for the victuals delivered to his Guest Guest the Guest may wage his Law for the Victualler or Innkeeper is not compellable to deliver his victuals to his Guest until he be paid for them and therefore it is his folly to part with them until he hath mony in hand for them Feme advowâ—on 24 If a feme purchase an Advowson and takes baron and the Church is void and the baron suffers an Vsurpation In this case F.N.B. 34. 5. the feme if she had presented before is put to her writ of right of Advowson but if she had not presented before she is without recovery for it will be attributed to her folly that she took such an husband as would not present upon the avoydance but suffer an usurpation It is otherwise if the Advowson came to her by descent Vide Max. 114. case 52. Bastard Mâ—â—â—er 25 If a man hath issue a Bastard and dieth Co. Inst pars 1. 244. a. 4. and the Bastard entreth and dieth seised and the land descendeth to his issue in this case the Collateral heir of the father is bound as well as where the father hath two sons Bastard eigne and Mulier puisne So likewise if a man hath issue two daughters the eldest being a Bastard and they enter and hold the land peaceably as heirs now the Law in favour of legitimation doth not adjudge the whole possession in the Mulier who then had the only right but in both so as if the Bastard hath issue and dieth her issue shall inherit and in the same case if both daughters enter and make partition this partition shall bind the Mulier for ever Vide supra 11. Proviso upon â—ale of land 26 A bargainée of land for 600 l. by another Indenture covenants to make back to the bargainor and his heirs such assurance of the land Dyer 361. 9. 2â— Eliz. as the Councel of the bargainor should devise within the year next ensuing provided that if the vendée made default in the assurance if he then should not pay 500 l. to the vendor that he would stand seised to the use of the vendor the vendor tenders no assurance and the 500 l. is not paid In this case the vendée hath the right of the land for it was the folly of the vendor that he required not the Assurance Winsors case 173 Negligentia semper habet infortunium Comitem Laches 1. Regularly Co. Inst pars 1. 246. b. 2. no laches or negligence shall be accounted in Infants or femes covert for non entry or claim to avoid descents yet laches shall be accounted in them for non-performance of a condition annexed to the estate of the land for if a feme be enfeoffed either before or after marriage reserving a rent and for default of payment a re-entry In that case the laches of the baron shall disherit the wife for ever And so it is of an Infant his laches for non-performance of a condition annexed to an estate either made to his auncestor or to himself shall barr him of the right of the land for ever And therefore if a man make a feoffment in fée to another reserving a rent and if he pay not the rent within a moneth that he shall double the rent and the feoffée dieth his heir within age the Infant payeth not the rent albeit the Infant at this day shall not by this laches forfeit any thing yet in such case a feme covert shall and the reason and cause of this diversity is for that the Infant is provided for by the Statute of Merton cap. 5. Non current usurae contra aliquem infra aetatem existen c. but before that Statute he could not have avoided such a penalty neither yet doth that Statute extend to a feme covert or to a condition of a re-entry which an Infant ought to perform because the breach thereof cannot be properly called usura Co. ibid. 250. b. 4. 2 If the father be disseised and make claim and the disseisor dieth Continual claim then the father also dieth In this case his heir may enter because the descent was cast in his fathers time and the right of entry which the father gained by his claim shall descend to his heir But if the father make continual claim and dieth and the son make no continual claim and within the year and day after the claim made by the father the disseisor dieth this shall take away the entry of the son for that the descent was cast in his time and the claim made by the father shall not avail him that might have claimed himself because no continual claim can avoid a descent unless it be made by him that hath title to enter and in whose life the dying seised was The same likewise holdeth in all respects of the predecessor and successor Co. ibid. 252. a. 3. Also if tenant for life make continual claim this shall not give away benefit to him in the remainder unless the disseisor died in the life of the tenant for life causa qua supra Co. l. 5. 13. b. 4. in the Countess of Salops case 3 Vpon Bailment of goods to kéep Bailment of goods when there is a confidence put in the Bailée an action upon the case will lie for negligence notwithstanding the delivery of them by the Bailor As in 12 E. 4. 13. A man delivers an
defendant pleads Judgement barr to the bond That the plaintif hath recovered upon the same bond and that the judgement thereupon is removed by Error into the Kings Bench and was not yet reversed And this was adjudged a good plea because the judgement takes away the strength of the bond and if after judgement he might sue the same party upon the same bond he might do it infinitely and consequently the defendant might be infinitely amerced for upon every Iudgement the defendant shall be amerced and if he be a Peer of the Realm the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation which would be mischievous Et interest Reipublicae ut sit finis litium Co. l. 7. 43. Kenns case 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness Bill of reviver no more than a writ by Iourneys accompts upon a former writ of the same nature for so they might be had infinitely Barrettry 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth Co. l. 8. 37. in the case of Barretry because whereas the Law endeavoureth to settle peace and amity and to suppress discord and contention he is seminator litium oppressor vicinorum suorum either by force and open Maintenance of possessions or the like or by fraud and malice under colour of Law as by multiplicity of unjust and feigned sutes Informations or the like to the end he may by that means enforce poor people ad redimendum vexationem to give him money or otherwise to compound with him c. A bitrement 19 Vpon an award albeit the parties do not discover all their differences to the Arbitrators so as they determine some C. l. 8. 98. a. 4. in Baspoles case and leave the rest undetermined yet the award is good because otherwise many Arbitrements might be avoided for the one or the other of the parties may conceal a trespass done to him or some other secret cause of action and so avoid the Arbitrement which were inconvenient for Expedit reipublicae c. Accord 20 Accords are much favoured in Law Co. l. 9. 79. b. 4. in Peytoes case because they prevent and compose sutes and controversies amongst neighbours Et concordiâ parvae res crescunt discordiâ maximae dilabuntur And therefore it was adjudged P. 3 sac rot 1033. that an Accord with satisfaction was a good plea in barr in Eden and Blakes case Fines 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King though he be not named because it was ordained for the setling and quieting of estates and the prevention of debates and controversies in the Commonwealth in Magdalen College case Assets descended a barr 21 The Statute of Glocester in 6 E. 1. cap. 3. ordains Co. l. 52. b. 4. in Syms case Pl. Co. 110. Fulmerstons case that where tenant by the curtesie aliens his wives inheritance with warranty if assets descend from the heir he shall be barred for the value of the inheritance so descended and if lands after descend that then the tenant shall recover against the heir of the seisin of his mother viz. out of the residu of his mothers lands so much as the assets afterwads descended shall amount unto Here albeit at the making of this Act being in 6 E. 1. there were no intailed lands for all Inheritance was then viz. before Westm ◠being 13 E. 1. feesimple absolute or conditional yet intailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands intailed but only the lands which should so descend because otherwise there would be occasion of new sutes and contention which the Law hates and abhorrs for if the tenant after assets descended might retain or recover the lands intailed then if the assets were aliened the issues inheritable to the estate tail might by writ of Formedon in descender recover the intailed lands again which would beget a new sute and no way answer the Intention of the said Act being indéed a good provision for féesimple lands but not for lands entailed without such a construction by equity as aforesaid And therefore in case of entailed lands so aliened with warranty the tenant shall have a Scire facias out of the Rolls of the Iustices before whom the sute depends to recover the lands descended according to the provision of the said Act of Glocester which in just and proportionable equity agrées with the case of the feesimple lands and the Intention of the same Act. Vide supra 15. 9. infra 186. 8. 179 Circuit of Action Co. Inst part 1. 265. a. 3. 1 Littleton saith § 446. If the father be disseised Rebutter and the son having only a possibility release to the disseisor without warranty such release is void Howbeit if there be a warranty annexed to the release then the son shall be barred for albeit the release cannot barr the right because the son had no right in the land in the life of the father yet the warranty may rebut and barr him and his heirs of a future right which was not in him at that time And the reason which in all cases is to be sought out wherefore a warranty being a covenant real shall barr a future right is for avoiding of circuit of action which is not favoured in Law viz. That he who made the warranty should recover the the land against Terre-tenant and then the Terre-tenant by force of the warranty should have as much land in value against the warrantor which course would occasion Circuit of action and more trouble than needs Mauxels case 7. b. Finch 2 Where the father enfeoffeth his son and heir apparent with warranty and dieth Voucher the son in a praecipe brought against him may immediately vouch his fathers feoffor for the Law will not suffer him to vouch himself according to Max. 54. and so when he comes in as vouchee he may darraign the first warranty to avoid Circuit of Action Finch fol. 14. Fr. Edit F. N. B. 18. f. 3 In false Iudgement against an Abbot the plaintif was non-sute False Judgement and the Abot had a Scire facias against the plaintif to shew cause why he should not have execution returnable quindena Paschae at which day the plaintif appears and assigns his errors and tenders security to sue cum effectu and prays a Scire facias against the Abbot ad audiendum errores and the opinion of the Court was that he might assign his errors against the Abbot without suing out any Scire facias against him Finch pag. 55. 4 In an action of waste upon a lease for years by déed Waste wherein the lessor granteth to the
and yet it may be that he was not his heir for it is not expresly said that he is his son and heir but that he entred as son and heir and yet in regard he pleads by way of barr the best shall be intended for the defendant In like manner in 27 Ass pl. 31. Tit. Barr 303. Br Assise 272. In an assise brought by the heir the tenant saith that the father of the plaintif being tenant by the Curtesie and yet in life let his estate to the ancestor of the tenant wâ—o died seised of that estate after whose death the tenant was in as son and heir and demands Iudgement si Assise c. And this was held a good barr And yet he saith not that he was the first that entred after the death of his Father and if he were not the first he hath no title for the land in such case Occupanti conceditur viz. to him that first enters and that might be the plaintif but yet the barr was held good because to a common intent it shall be taken that the tenant was the first that entred after the death of the father and if it were not so the plaintif may and ought to shew it Vide plus ibid. infra 195. 27. Capias pro fine 41 If a man be condemned in trespass F.N.B. 121. 1. or in debt upon an obligation where he denies his déed at the sute of the party and after he is taken by Capias pro fine within the year at the Kings sute and committed to the Gaol if the Gaoler suffer him to escape the party shall have an action of debt for this condemnation against the Gaoler and yet he was not committed to him at his sute but at the sute of the King Howbeit the Kings sute shall serve the party in this case because the King was entituled to the fine by the party but it is otherwise after the year for then it will be intended that the party hath accorded with him that was condemned And therefore after the year he shall be put to sue a Scire facias upon that Iudgement Vide Max. 63. pl. 4. Executor Heir Assets 42 In debt against an Executor the plaintif néed not count Co. l. 9. 94. a 3. in Will. Banes case that the executor hath assets for it will be intended prima facie that he hath assets So likewise in debt against the heir the plaintif shall never averr in his Count that he hath assets for the Law presumes it prima facie because the Law presumes that the testator or ancestor will not leave a greater charge upon the executors or heir than he leaves benefit to discharge it Perpetuities 43 In the Argument against perpetuities in Corbets case Co. l. 1. 87. b. 4. in Corbets case it was said by Glanvile Iustice that betwixt the making of the Statute of 13 E. 1. de donis and the Statute of 27 H. 8. of Uses such a proviso annexed to an estate tail that it should cease as if the tenant in tail were dead was never séen or heard of and therefore he concluded that it could not be done by Law Little f. 23. And so likewise concludes Littleton in the like case that if any action might have been brought upon the Statute of Merton cap. 6. De dominis qui maritaverint illos c. si parentes conquerentur c. it shall be intended that at some time or other it would have béen put in ure And therefore he saith that no action can be brought upon that Statute in as much as it was never seen or heard that any action was ever taken thereupon Attaint 44 By intendment of Law a verdict is true Dyer 212. 34. 4 El. and therefore the Law will admit of no new proof to defeat it for albeit where the defendants in an attaint give new matter in evidence to enforce the first verdict as they may the plaintif shall be admitted to disprove it yet the plaintif shall never be suffered to produce any new matter in evidence nor inforce the first by other matter afterwards discovered Devise Tenure 45 A man intitles himself as devisee of the whole land by the Statute of the 32 H. 8. of wills and albeit he shewed not the tenure Dyer 329. 16. 16 Eliz. it was ajudged well enough for that it ought to come on the other part and prima facie it shall be intended Socage because most part of the land is so holden 190 Stabit praesumptio donec probetur in Contrarium Co. Inst pâ—rs 1. 222. b. 3. 34 Ass pl. 1. 1 If an agréement be made between two Condition that the one shall enfeoff the other upon condition in surety of the payment of certain money and after the livery is made to him and his heirs generally the estate is bolden by some to be upon condition for that the intent of the parties did not appear to be changed but to continue at the time of the livery Co. ibid. 227. b. 1 Dyer 81. 2 An issue found by verdict shall alwayes be intended true Attaint until it be reversed by Attaint and for that reason upon an Attaint no supersedeas is grantable by Law Plow 49. b. Co. ibid. 310. b. 4. 3 If a man plead a feoffment of a Manor Attornment he need not plead an Attornment of the tenants for it will be intended that the tenants did attorn But if it be material it must be denied or pleaded of the other side Co. ibid. 361. a. 3. 4 The issue of tenant in tail may falsifie a recovery had against tenant in tail by default nihil dicit confession or demurrer Falsifying of a recovery but if the recovery passed upon an issue tried by verdict he shall never falsifie in the point tried because an attaint might be had against the Iurors and albeit all the Iurors be dead so as the attaint do fail yet the issue in tail shall not falsifie in the point tried because until it be lawfully avoided pro veritate accipitur As if the tenant in tail be impleaded in a Formedon and he traverseth the gift and it is tried against him and thereupon the demandant recovers In this case the issue in tail shall not falsifie in the point tried but he may falsifie the recovery by any other matter as that the tenant in tail might have pleaded a collateral warranty Littl. §. 688. or a release as Littl. putteth the case or to confess and avoid the point tried Co. l. 4. 71. â— 4. Hyndes case 5 A. seised of land in fee demiseth to B. for years Fine Deed inrolled and after by déed indented before Easter Term in 29 Eliz. bargains and sells the land to C. and the same Term levies a fine to C. and his heirs and afterwards in the same Term also the deed is inrolled A. commits waste for which C. brings his
Hob. 78. Saint-Iohn Saint-Iohn 22 In debt by Saint-John against Saint-John Bailiff of Stockbridge upon the Statute of 23 H. 6. 15. for not returning him Burgess of that Town to the then intended Parliament And where the Statute saith that the Sherif shall send his precept to the Maior and if there be no Maior then to the Bailif the plaintif declared that the Sherif had made his precept to the Bailif without averring that there was no Maior And after a verdict for the plaintif this was moved in arrest of Iudgement But the Court was of opinion clearly that it shall be presumed there was no Maior except it be shewed and if there were it ought to be shewed on the other part 191 Ad ea quae frequentius accidunt Jura adaptantur Co. Inst part l. 238. a. 2. 1 It is said Descent a Toll entry that Abators and Intruders are out of the Statute of 32 H. 8. cap. 33. which gives the disseisee five years to prevent a descent c. because that Statute is penal and extends only to a disseisor who is only named in it And the reason why he only was therein named and not the Abator or Intrudor was because disseisin was the most common mischief Et ad ea quae frequentius accidunt c. Co. ibid. 295. a. 1. 2 In times past wager of Law was accounted a good trial in an action of debt without specialty because the Law presumed Wager of Law that no man would forswear himself for any worldly thing But of later times mens Consciences are grown so large especially in this case passing with impunity that the plaintif now dare not many times adventure the debt upon the defendants oath by bringing an action of debt but rather chuseth to bring an action upon the case upon his promise wherein he cannot wage his Law Co. l. 5. 83. b. in the case of Market overt Popham 84. 11. 3 The proper and most usual place for selling plate in London or any other Market overt is a Goldsmiths shop Market overt because such commodities use to be sold there and not in a Scriveners shop or the like And therefore if stoln Plate be sold in a Scriveners shop although it be openly and upon the market day it shall not alter the property but the party shall have restitution It is otherwise if it be sold openly in a Goldsmiths Shop c. Vide Max. 186. pl. 32. 134. 4. Co. l. 5. 127. b. 1. Palmers case 4 Guardian in Knight-service shall have the single value of the mariage without tender Valore maritagii And yet the words of the writ de valore maritagii are Quare cum Maritagium praed B. ad ipsum A. pertineat eo quod praed B. terram suam de eo tenuit per servitium militare idem A. praed B. dum fuit infra aetatem c. compotens maritagium absque disparagatione c. saepius obtulerit c. But the reason thereof is for that writs are most commonly framed according to that which doth most usually fall out alwayes in this case supposing that a tender is made because for the most part it so happens to be And therefore whereas the Rule is Ad ea quae frequentius accidunt Iura adaptantur it may in like manner be said Ad ea quae frequentius accidunt rescripta sive brevia adaptantur And in other cases a special case shall have an usual writ and a special Count. Co. l. 6 45. l. 3 in Higgins case 5 In 17 E. 3. 24. In debt upon an obligation of 20 l. Iudgement was obtained before the Maior of Newcastle Obligation not to be cancelled after Judgement and execution had thereupon and because the obligation was not cancelled which after judgment had was the usual course in those dayes the plaintif had judgement in another action upon the same obligation and the defendant upon pleading the first Iudgement could not be relieved because it was imputed to his folly that he did not procure the obligation to be cancelled upon the first Iudgement which was the ordinary usage of the Iudges at and about that time because men in antient time after a judgement obtained were apt to be quiet and to rest contented therewith without bringing writs of Error or Attaints which then were very rare especially writs of Error But now of later time men growing more contentious and not satisfied with any trial or judgement but being apt upon every such trial or judgement to bring a writ of Error or Attaint the Iudges have thought it dangerous to order the deed to be cancelled either where the plaintif recovers or where he is barred by judgement for in both cases the judgement may be reversed by Error or Attaint And therefore the reason or cause of the Iudgement in 17 E. 3. being now changed there is now no question but at this day judgement and execution upon an obligation is a good barr in a new action thereupon albeit the obligation be not cancelled Statute of wills 6 If there be Grandfather Father and divers Sons Co. l. 6. 77. a. 2. in Sir Geo. Cursons case and the Grandfather in the life of the Father convey his lands to any of the Sons this is out of the Statute of 32 H. 8. 1. of Wills for the words of the Statute are for the advancement of his wife preferment of his children c. and therefore because the Fathers children are none of the Grandfathers children such a conveyance is out of that Statute But the makers of that Act framed it according to that which was most vulgar and usual and that was for the father to dispose to his children and Ad ea quae frequentius accidunt c. Presentation 7 If a man present to an Advowson and after the Parson resigns F.N.B. 31. h. or is deposed and the Patron presents again and is disturbed he shall have an Assise of Darrein presentment and the form of the writ shall be Quis Advocatus tempore pacis praesentavit ultimam personam quae mortua est ad ecclesiam c. Albeit he resigned and is in full life Also the form of the writ is to suppose that the defendant did deforce him out of the Advowson and yet by his Count he shall declare that he or his ancestor presented last to the Advowson by which he supposeth that he is in possession of the Advowson and yet this good for ad ea quae frequentius accidunt c. Nomination 8 If a man hath the nomination to an Advowson F.N.B. 33. b. c. and another hath the presentation if he name his Clerk and he that ought to present present another Clerk he that had the nomination shall have a Quare impedit and the writ shall be Quod permittat ipsum praesentare c. And in his Count he shall declare the special matter and
goods and chattels for the great regard that the Law hath to the life of a man Howbeit if Thieves assault a mans house to robb or murther him and the owner or his servants kill any of the Thieves in defence of himself and his house this is not felony neither shall he lose any thing thereby And with this agrées 3 E. 3. Tit. Corone 303. 305. 26 Ass pl. 23. So likewise it is held in 21 H. 7. 39. that a man may justifie to assemble his friends and neighbours to defend his house against violence but not to go with him to the Market or elsewhere to guard himself from violence And all this to establish quiet and tranquillity in the Commonwealth Co. l. 5. 125. a. 2. in the cases of Libels 14 Every Libell which is called famosus Libellus Libels seu infamatoria scriptura is made either against a privat man or against a Magistrate or publique person if it be made against a privat person it deserves a severe punishment for albeit the Libel be only made against one yet it invites all of the same family kinred or society to revenge and so tends by consequence to quarrels and disturbance of the peace and quiet of the Commonwealth and may be the cause of effusion of bloud and of great inconvenience If it be against a Magistrate or other publique person that is yet a greater offence for this concerns not only the breach of the peace but the scandal of Government because what greater scandal can there be to Government than to have corrupt and wicked Magistrates to be substituted by the King to govern his Subjects under him Neither can there be greater imputation to the State than to permit such corrupt men to sit in the sacred seat of Iustice and to have any medling in or concerning the administration of Iustice which conceit being fixt in the minds of the people may be a cause of tumults and sedition to the great disturbance of the quiet and repose of the Commonwealth F N.B. 81. d. 15 Albeit Iustices of Peace have not express authority given them by their Commission to take recognizance for the keeping of the peace yet the Law gives them thereby that power ex congruo in order to the publique quiet of the Commonwealth for that they are thereby Constituted to be Conservatores Pacis and impowred to cause men to kéep the peace and to hear and determin offences committed against the peace and quiet of the Realm The Common Law giveth also power to the Sheriff either upon a writ of Supplicavit or without such a writ to take a Recognizance for the kéeping of the peace because he also is Conservator Pacis and to that end and purpose hath the guard and custody of the County committed to him for the time that he continues Sheriff as appears by the words of his Commission and Patent Rex c. Commissimus vobis Custodiam c. And what the Iustices or he do in that behalf is matter of Record and so ought to be déemed for that it concerns the Publique peace and tranquillity of the Commonwealth A man may go beyond sea 16 By the Common Law any man may go out of the Realm to imploy himself as a Merchant or to undertake a pilgrimage F.N.B. 85. a. or for any other cause at his pleasure without demanding license of the King neither shall he incurr any punishment for so doing Howbeit because every man in right is bound to defend the King and his realm and to preserve the publique repose and tranquillity of the Common-wealth from forein invasions from abroad and intestine sedition and insurrection at home the King may at his pleasure command by his writ De securitate invenienda quod se non divertat ad partes exteras sine licentia Regis under the Great Seal Privy Seal or Signet that he shall not go beyond sea without the Kings license And if he do he shall be fined for disobeying the Kings command Vide 3. Uses 17 In case of a Feoffment or other conveyance Co. Inst pars 1. 237. a. 2. whereby the feoffée or grantée c. is in by the Common Law a Proviso for a power of Revocation is meerly repugnant and void but in a voluntary conveyance which passeth by raising of Vses being executed by the Statute of 27 H. 8. 10. and now become very frequent by such a Proviso it is lawfull for the Covenantor at any time during his life to revoke any of the said Vses c. And these revocations are alwaies favourably interpreted bâ—cause now to interrupt that Course would disturb the Publique quiet of the Realm many mens Inheritances depending thereupon Warranty collateral 18 In 50 E. 3. Rot. Parl. 77. it was attempted in Parliament to have a Statute made Co. ibid. 373. b. 1. that no man should be barred by a warranty collateral but where Assets descend from the same Ancestor but it could never take effect because it would weaken common assurances and by consequence disturb the peace and quiet of the Commonwealth Remainders 19 For as much as in coveyances Co. Inst pars 1. 299. a. 2. limitations of Remainders are usual and common assurances it is dangerous by conceipts and nice distinctions to bring them in question as hath of late time been attempted lest thereby the quiet repose of the Commonwealth may be interrupted Descent to toll Entry 20 The Statute of the 32 Hen. 8. 33. concerning descents to toll entries shall be understood of a descent upon any disseisin Dyer 219. 7. 5. Eliz. albeit the words are of entries with strength And this large interpretation of the words is given for the better preservation of the peaâ—e and quiet of the Country By the Opinion of all the Justices Descent of the Royal line 21 In the Starre-Chamber the Countesse of Shrewsbury was fined 1000 l. and committed to the Tower Hob. 235. for that being called to the Council Table and Interrogated what she knew or had heard or thought of a supposed child which was rumored that the Lady Arrabella should have had she refused obstinately to make any answer because it was judged that this was a question of State and proper for the Council Table to take cognizance of for there is not one thing that doth more concern the peace and quiet of a kingdom than the certainty of the Royal line c. 201 Conventio seu beneficium privatorum non potest publico juri derogare Vide supra 198 29. Co. Inst pars 1. 166. a. 4. Littl. §. 244 1 No privat contract or agreement Partition which varies from the ordinary course of Law and sounds in prejudice of the Commonwealth or Common right shall be deemed good in Law as if a Castle that is used for the necessary defence of the Realm descend to two or more Coparceners and they by agreement choose
case is Howbeit of new rights or remedies brought in by Statutes which are not presumed to intend their prejudice it is otherwise 146. It hateth Wrong Disparagement of the heir punished 1. Co. Inst pars 1. 80. b. 2. The Law doth hate and abhorre the odious and corrupt dealing of any man and never lets it go unpunished And therefore in case of a Ward where he is disparaged by his Guardian the Law doth so abhorre the odious dealing of the Guardian to whom the custody of the Heire is committed and his horrible profanation of honourable Marriage the onely ligament of mens Inheritances that albeit â—he Heire at the age of fourteen may discent to it and so dissolve it by such his disagreement yet the Law inflicted upon the Guardian for his attempt the losse of the wardship from such disagreement according to the Statute of Merton cap. 6. being but an affirmance of the Common Law No breaking of Inclosures for rent 2. If a Lord of a Mannor or c. Co. ibid. 161. a. 3. come to his Tenants land to distraine for rent arreare and he finds the doores or gates shut so that he cannot take the Tenants goods or cattell without breaking open the doores gates or other inclosures In this case albeit the Law gives him power to distraine it doth not licence him to break open any doores gates or other inclosures to distraine for by so doing he becomes a wrong doer Howbeit if he were before actually seised of the rent if they be shut on purpose to prevent him to distraine it amounts to a disseisin of the rent A Disseisor â—ay be no Tenant of the Land 3. If diverse persons disseise another to the use of one of them Co. ibid. 280. b. 3. or of another that assents in this case albeit he onely to whose use the disseisin is made is the sole Tenant of the land yet the Law doth so abhorre wrong that the Coadjutors Councellors Commanders c. thereunto are all Disseisors and therefore albeit the Tenant whether he be a Disseisor or no dye yet an Assise lyeth against the Coadjutor Councellor Commander c. 50 E. 3 2. The Demandant and others in a Precipe did disseise the Tenant to the use of the others and the Writ did not abate for the Demandant was a Disseisor though not Tenant of the land but onely a Coadjutor and therefore an Assise lyeth against him in respect of the wrong done by him as aforesaid A man disseiseth Tenant for life to the use of him in the reversion and after the Reversioner agreeth to the disseisin In this case it is sayd That the Reversioner is a Disseisor in fee because by the disseisin made by the stranger the reversion was devested which say they cannot be reversed by the agreement of the Reversioner for that makes him a wrong doer and therefore no relation of an estate by wrong can helpe him Release to one Disseisor 4. A man seised of Lands is disseised by two Litt. S. 306. Co. ibid. 194. a. 3. Litt. S. 472. S. 522. and releaseth all his right to one of the Disseisors in this case the Releasee shall hold out his companion because the two Disseisors being in by wrong and against the Law when one of them hath a lawfull interest by the release of the Disseisee the wrong vanisheth and is utterly extinct for the Releasee being seised per my per tout is thereby capable of the whole estate It is so also of two joynt Abators or Intruders which come in meerely by wrong for by operation of Law presently upon the delivery of the Release the whole Freehold and Inheritance is vested in the Releasee and all the estate that the other Disseisor Abator or Intruder hath who hath devested because right and wrong cannot consist together but the wrongfull estate giveth place to the rightfull Vide 141. 13. Co. ibid. 239. a. 1. 5. No estate gained by wrong makes a degree An estate by wrong in degree whereupon to ground a Writ of Entry in the per cui but it ought to be upon a lawfull descent or alienation And therefore an Abatement intrusion or disseisin upon disseisin make no degree Co. ibid. 245. a. 4. 6. If an Infant make a Feoffment in fee By entry of a stranger an estate gained by wrong devested a stranger of his owne head cannot enter to the use of the Infant for the estate is upon lawfull conveyance though voydable but where an Infant or a man of full age is disseised an Entry by a stranger of his own head is good and vesteth presently the estate in the Infant or other disseisee So if Tenant for life make Feoffment in fee albeit that be a lawfull Conveyance yet because such a Feoffment is a wrong to the Reversioner by the Entry of a stranger of his own head for a Forfeiture in the name of the Reversioner the estate shall be immediately vested in the Reversioner Co. ibid. 257. b. 1. 7. In a Writ of forcible Entry upon the Statute 8 H. 6. 9. Treble costs by the Stat. of 8 H. 6. cap. 9. Albeit the Statute gives onely treble damages to the party greived yet he shall also have treble costs allowed him if he recover for although the Statute be penall and in that respect should be favourably expounded yet in as much as it is a wrong of a high nature treble costs are also interpreted to be given by it Co. ibid. 278. b. 2. 8. If an Alien be a Disseisor and obtaine Letters of denization Aliens feoffment not good and then the Disseisee releaseth to him in this case the King shall not have the Land for the release hath altered the estate and it is as it were a new lawfull purchase It is otherwise if the Alien had been the Feoffee of a Disseisor for in such case he claimes under one that gained the estate by wrong Litt. S. 697. Co. ibid. 365. a. Co. ibid. 366. b. 2. Litt. S. 698. Co. ibid. 366. b. 367. a. 9. Before the Statute of Glocester cap. 3. 6 E. 1. Warranty commencing by disseisin abatement or intrusion no barr All legall warranties both lineall and collaterall were a bar to the heire but at the common Law before that Statute warranties that did commence by disseisin were never any bar to the heire because they did commence by tort viz. by disseisin For regularly the Conveyance whereunto such warranty is annexed doth worke a disseisin As if the Father or other Ancestor be Tenant of the Sons or Heires Land for years at will by Elegit Statute-merchant or Statute-staple and the Father or other Ancestor makes a Feoffment in fee of the Land to a stranger with warranty this warranty shall not bar the Heire unlesse he have other Lands that may be assets by descent from the same Father or other Ancestor respectively in all which