the acquital 7 If the husband alien his land Co. ibid. 33. a. 4. and then the wife is attainted of Felony Where the Feme shall have dower and where not now is she disabled but if she be pardoned before the death of the husband she shall be endowed So if the Sonne endow his wife at the age of 7 yeares ex assensu patris if she before the death of her husband attaine to the age of 9 yeares the Dower is good for in these two cases the right of Dower tooke effect in the life time of the husband hy reason of the capacity which the wives had to take it But otherwise it is of an original absolute disability as if a man take an Alien to wife and after the husband alien the land and after she is made Denizen the husband dieth she shall not be endoweâ— because her capacity and possibility to be endowed came by the Denization otherwise it were if she were naturalized by Act of Parliament for that makes her as absolutely capable as if she were a subject borne 8 If the Father convey his lands holden by Knight-service either of the King or of any meane Lord Wardship to his middle Sonne in taile Co. ibid. 78. a. 3. 14 El. Dy. 308. 3 Mar. Dy. 130. the remainder to the youngest Sonne in Fée and dieth the eldest being within age and the King or Lord seize the body together with part of the land according to the Statute of 32 and 34 of H. 8. in this case if the middle brother die without issue the King or the Lord shall not have any benefit of the Statute against him in remainder for the Statute was once satisfied and the Statute extendeth not to him in remainder Co. l. 2. 93. 94. Binghams case and Northcots case Co. l. 10. 80. b. Loveyes case â—enures in â—occage 9 When Littleton saith Co. ibid. 86. a. 3. 108. b. 2. Littl. § 118. that every Tenure which is not Knight-service is Tenure in Soccage he there speaketh of Soccage as it is largely taken and so called ab effectu that is all Tenures which hath the like effects and incidents belonging to them as Soccage hath are termed Tenures in Soccage albeit originally service of the Plough was not reserved as if originally a Rose a paire of gilt Spurs a Rent or the like were reserved or that the Tenant should hold the lands to be Ultorem sceleratorum condemnatorum ut alio suspendio Ockam 31. a. 6. alios membrorum detruncatione vel aliis modis juxta quantitatem perpetrati sceleris puniat that is to be a Hangman or Executioner It séemes in ancient times such Offices were not Voluntiers nor to be hired for lucre but were to be bound thereunto by Tenure Co. ibid. 90. a. 3. 10 A Tenant holdeth land of a Bishop by Knight-service Chattel vested which Seigniory the Bishop hath in the right of his Bishoprick the Tenant dieth his heir within age the Bishop either before or after seisure dieth neither the King nor the Successor of the Bishop shall have the Wardship but his Executors for albeit the Bishop hath the Seigniory en auter droit yet the Wardship being but a Chattel he hath it in his own right and a Chattel cannot go in the succession of a Sole Corporation unlesse it be in the case of the King Littl. § 350. Co. Inst pars 1 216. b. 1. 217. a. 4. 11 If land be granted to a man for terme of five yeares upon Condition An estate upon condition to have fâ—â— that if he pay to the Grantor within the two first yeares 40 marks that then he shall have fée 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 the Grantée hath Fée simple conditional c. and if he do not pay to the Grantor the 40 marks within the first two yeares then immediately after those two yeares past the Fée and Frank-tenant is and shall be adjudged in the Grantor c. And the reason of this case is grounded upon the effect that the Livery tooke at first for by the rule of Law a Livery of Seisin must passe a present Fréehold to some person and cannot give a Fréehold in futuro as it must do in this case if after Livery of Seisin made the Fréehold and Inheritance should not passe presently but expect untill the Condition be performed And therefore if a Lease for yeares be made to begin at Michaelmas the remainder over to another in fee if the Lessor make Livery of Seisin before Michaelmas the Livery is voide because if it should worke at all it must take effect presently and cannot expect Co. ibid. 217. b. 1. And there is a diversity in the case above put betwéen a Lease for life and a Lease for yeares for in case a Lease for life with such a Condition to have Fée the Fée simple passeth not before the performance of the Condition for that the Livery may presently work upon the Fréehold but otherwise it is in the case of a Lease for yeares There is also a diversity betwéen Inheritances that lie in grant and Inheritances that lie in Livery for if a man grant an Advowson for yeares upon Condition that if the Grantée pay xx s. c. within the terme that then he shall have Fée the Grantée shall not have Fée untill the Condition be performed sic de similibus But otherwise it is where Livery of Seisin is requisite and therefore if the King make such a Lease for yeares upon such a Condition the Fée simple shall not passe presently because in that case no Livery is made Vide 55. 109. 35. 8. Littl. § 359. Co. ibid. 222. b. 3. 227. b. 4. 12 If a man make a Déed of Feofment to another without Condition and when he gives Livery Livery upon condition he clogs the estate with a Condition in this case the estate takes effect by the Livery and not by the Déed of Feofment and therefore shall be subject to the Condition Co. ibid. 228. a. 1. 13 If a Déed be made and dated in a forraigne Kingdome of lands within England yet if Livery and Seisin be made Livery upoâ— forraigne deed Secundum formam cartae the land shall passe for the land passeth and the grant takes effect by the Livery and not by the Déed Co. ibid. 271. b. 3. 14 There is a diversity betwéen a Feofment of land at this day upon confidence or to the intent to performe his last Will A feofment the use of a Will and a Feofment to the use of such person and persons and of such estate and estates as he shall appoint by his last Will for in the first case the land passeth by the Will and not by the Feofment because after the Feofment the Feoffor was seised in Fée
personal the Defendant shall not afterwards take any benefit by bringing a Writ of Attaint because he cannot have the effect of that Writ which is to be restored to the Debt and Damages which he lost The like Law is where a Iudgement is given upon a false verdict in a real Action for there also a release of all Actions real is a good barre in an Attaint c. for that in these two last examples both the Writ of Error and the Writ of Attaint do insue the nature of the former Action c. No Audita â—â—aerela after â—â—lease 12 If the Defendant in a personal Action doth after Iudgement entred release unto the Plaintife all Actions personal Co. ibid. he shall not afterwards bring an Audita quaerela because after he hath released to the Plaintife all Actions personal he cannot have the effect of that Writ which is to discharge himselfe of a personal execution No Formedon against tenant for life 13 Tenant in taile discontinueth in Fee and dieth Co. ibid. 297. b. 3. the Discontinuee makes a Lease for life and granteth the reversion to the issue In this case the issue shall not have a Formedon against Tenant for life because he cannot have the effect of that Writ which is to recover an estate of Inheritance for the Lessée for life hath not the Inheritance but the issue in taile himselfe hath it No entry after â—elease 14 If Feoffée upon condition make a Lease for life or a gift in taile Co. ibid. and the Feoffor release the Condition to the Feoffée the Feoffor shall not afterwards enter upon the Lessée or Donée because he cannot have the effect of his entry which is to regaine his ancient estate No action of â—â—espasse for â—oile by Coâ—ies 15 If a man plant Conies and Conie-burrowes in his own land Co. l. 9. 104. Boulstones case which afterwards so increase and multiply that they destroy the ground of his neighbour thereunto adjoyning yet shall not his neighbour maintaine an Action upon the case against him that plants them for the damage done by them because he cannot have the effect of his suit which is to recover damages for the trespasse committed for immediately after the Conies come into the neighbours land he may kill them because they being ferae naturae the other that planted them hath then no property in them and it stands not with reason that a man should make satisfaction for the damage which goods do that are none of his To some titles â—o warranty â—â—tends 16 There are some naked titles unto which warranty doth not extend Co. l. 10. 98. b. 4. Edward Seymors case Co. Inst pars 1. 389. a. 2. as the Title in case of exchange condition upon Mortgage c. Mortmaine consent to the Ravishor and the like because for these no Action lies in which there m y be Voucher or Rebater Co. l. 11. 29. b. 3. Alexander Powlters case Ibid. fo 30. a. 3. 17 Before the Statute of Articuli cleri cap. 15. No Clergie â—ter confesâ—â— he that confessed the Felony could not have the benefit of his Clergy because in case of confession he could not have his purgation c. for by intendment of Law he cannot against his expresse and voluntary confession in Court be innocent Confessus in judicio pro judicato habetur quodammodo su a sententia damnatur Co. l. 11. 77. b. 1. Magdalen Colledge case 22 E. 3. T it Coronae 276. 18 It is provided by the Statute of West 2. cap. 12. In appeal a Monke can have damâ—â—â— Quòd se appellatus de felonia c. se acquietaverit c. restituant hujusmodi appellatores damna appellatis Yet if an appeal of death had béen brought against a Monk who had been acquit and thereupon had prayed his damages according to that Act he should not have béen admitted any such prayer because he could not have the effect thereof being by Law incapable to take the damages Fol. 11. B. 9. N. 19 In a Writ of Right de rationabili parte by one Coparcener against another Voucher lieth not Voucher liâ—â—â— not in copâ—nery because the Demandant cannot have the effect thereof viz. to recover in value in respect of the privity of bloud betwixt them c. F.N.B. 31. f. Co. Inst pars 1. 127. a. 1. 20 In all originalls brought by a Subject The King iâ— not give plâ—â—es de prosequendo wherein pledges de prosequendo are to be found the preamble of the Writ is Rex vicecom salutem c. Si A. fecerit te securum c. tunc summoneas c. But at the Kings suit the preamble shall be Rex vicecom salutem c. summonens per bonos summum c. and not Si Rex fecerit c. for the King shall not be bound to prosecute because he is not subject to the consequence thereof viz. to be amercied if he do not prosecute neither can he be non-suited because he is alwayes present in all his Courts V. infr 39. 4. F. N. B. 48. q. 21 If a man brings a Writ of Right of Advowson against another and hanging the Writ the Church becomes void The Demâ—dant shall 〈◊〉 have a â—â—mittas the Plaintif shall not have a ne admittas to the Bishop nor a Quare incumbravit albeit the Bishop doth encumber the Church c. for the Demandant shall not recover the presentment upon this Writ but the Advowson 22 One Commoner shall not bring a Writ de admensuratione pasturae against another Commoner F.N.B. 125. d. which hath Common appurtenant No Writ of admeasurement or in grosse sans number because such a Commoner cannot be admeasured c. Pl. Co. 11 c. a. 1. Fulmerston and Stewards case West 2. cap. 21. 23 The Statute of Westm 2. ordaines No Cessaâ—â—â— for the beiâ—â— Quòd fiant brevia de ingressu haeredi petentis super haerodem tenentis super eos quibus alienata fuerint hujusmodi tenementa c. yet if the Demandant in a Cessavit die the heire shall not have a Cessavit because he cannot have the effect thereof viz. to recover the arrerages for that they by Law belong not unto him but unto the Executor Co. Inst pars 1. 96. b. Littl. § 137. 24 If a Tenant in Frankalmoigne with-draw his Service Tenant in Frankalmâ—â—â— not distraiâ—â—ble the Lord shall not distraine commence any suit or séek any remedy for it in foro seculari in any Temporal Court because that Service being Spiritual and uncertaine shall be defined and recovered in foro Ecclesiastico in the Spiritual Court It is otherwise of Tenure by Divine Service which although it be Spiritual yet being certaine shall be recovered in foro seculari and the performance or non-performance thereof shall upon a distresse and Avowry be tried by a Iury
〈◊〉 joyn in an â—sise of an 〈◊〉 thing and a pound of Pepper and an Hawk and an Horse and they are seised of that service and afterwards all the said services being arreate they distrain for it and the Tenant makes rescous In this case as to the rent and the pound of Pepper they shall have two several assises because those rents are severable and the two Tenants in Common claim and hold the reversion unto which the same rents are incident by two several titles But as to the Hawk and Horse albeit they be Tenants in Common c. they shall joyn in the assise because these things are intire and cannot be severed for one of them alone by himselfe cannot make his plaint in Assise for the moity of an Hawke or of an Horse because the Law will never suffer a man to demand any thing against the order of nature or reason as it appeareth by Littleton Sect. 129. Lex enim spectat naturae ordinem Co. ibid. b. 3. 23 Tenants in Common shall joyn in a Quare Impedit In an adâ—â—son ward c. because the presentation to the Advowson is intire Also they shall joyn in a writ of right of Ward and ravishment of Ward for the bodie for the same reason Co. ib. 197. b. 4. § 285. a. 4. 24 If two Tenants in Common be of the Wardship of the body Release â—o prejudice and a stranger ravisheth the Ward and one of the Tenants in common releaseth to the ravisher this shall go in benefit of the other Tenant in common and he shall recover the whole Neither yet shall that release be any bar to him for that the Wardship of the bodie is intire and cannot be severed Co. l 5. 97. b. the Countesse of Northumberlands case So it is also if there be two Ioyntenants of an Advowson and they bring a Quare Impedit and the one doth release yet the other shall sue forth and recover the whole presentment Likewise two Tenants in Common shall joyn in a detinue of Charters and albeit the one be non-suit yet the other shall recover Co. Inst pars 1. 199. b. 4. 25 There is a diversity betwéen Chattels real Tenants iâ— common Ward Villein that are apportionable and severable as leases for years wardship of lands interest of tenements by Elegit Statute Marchant Staple c. of lands and tenements and Chattels real intire as Wardship of the body a Villein for years c. For if one Tenant in Common take away the ward or the Villein c. the other hath no remedie by action but he may take them again Howbeit for the other he that is outed may have remedy against his companion that outs him viz. by Ejectione Firmae Ejectment of Ward Quare ejecit infrà terminum c. Co. ib. 200. a. 3. 26 If two Tenants in Common be of a Mannor Waife Estray to which Waife and Stray doth belong a stray doth happen they are Tenants in common of the same and if one doth take the stray the other hath no remedie by action but onely to take it again unlesse by prescription they claim to have them by turns c. Co. ib. 215. a 3. 27 The Grantée of part of the reversion shall not take advantage of a Condition by the Statute of 32 H. 8. cap. 34. A conditioâ— intire As if a lease be made of thrée acres reserving a rent upon Condition and the reversion is granted of two acres the rent shall be apportioned by the act of the parties but the condition is destroyed for that it is intire and against common right It is otherwise in the Kings case c. â—elease of 〈◊〉 actions 27 In mixt actions as an action of Waste Litt. § 492. c. which are mixed both in the realty and personalty a release of all actions real or a release of all actions personal is a good plea in barre because the action is in its nature intire and therefore a release of part shall annul all c. There is the same reason of an Assise of Novel disseisin a writ of Annuity Quare Impedit c. â—â—heritance â—ehold intire â—erm not so 28 If a Disseisor make a lease for a hundred yeares Co. ibid. 285. a. 4. Co. ib. 297. a. 2. Co. l. 5. 6. in Foords Case the Disseissee may confirm parcel of those yeares viz. Either the whole land for part of the terme or part of the land for the whole term c. So likewise if the Tenant for life make a lease for a hundred years the Lessor may confirm either for part of the terme or for part of the land but an estate of Inheritance or Frée-hold cannot be confirmed for part of the estate â—nfirmation 〈◊〉 part of a â—â—me because those estates are intire and not severable as yeares be And therefore if the Disseisée confirm the estate of the Disseisor Litt. § 519. albeit in the déed of confirmation the limitation be exprest to be in taile for years for a day or onely for an hour yet hath the Disseisor a Fée-simple because his estate was before the confirmation intire and unseverable â—â—eritance â—ehold intire 29 If any Disseisor make a lease for life the remainder in fée Litt. § 525. Co. ibid. 297. a. 4. b. 2. if I confirme the estate of the Tenant for life yet after his decease I may well enter because they are several estates and nothing is confirmed but the estate for life So it is also when the several estates are in one and the same person as if the Disseisor make a gift in taile the remainder to the right heirs of the Tenant in taile or the remainder first for life â—â—nfirmation â—one jointeâ—â—nt shall eâ—â—e to both and then to the right heirs of the Tenant in taile In these cases if the Disseisée confirm the estate of the Tenant in taile it shall not extend to the other estates causa qua suprà But if the Disseisor make a lease for life to A. and B. and then the Disseisée confirms the estate to A. Here B. shall take advantage thereof because the estate of A. which was confirmed was intire and joint with B. and therefore in that case the Disseisée shall not enter into the land and devest the moity of B. So likewise if the Disseisor enfeoff A. and B. and the heirs of B. and then the Disseisée confirms the estate for his life this shall not onely extend to his companion but to his whole Fée-simple also because to many purposes he had the whole Fée-simple in him and the confirmation shall be taken most strongly against him that made it c. 〈◊〉 confirmatiâ—o Baron â—e not good 30 If I let land to a Feme sole for terme of her life Litt. §. 525. Co. ibid. 299. a. 4. who takes husband and after I confirme the estate
is found for him yet the other issue shall be tried and he shall not take advantage of the others Plea But in a Plea personal against divers Defendants it is otherwise for in such an action if one Defendant pleads that which extendeth onely to himself and the other pleads a Plea which goeth to the whole viz. to both Defendants this last Plea shall be first tried and if that be found for the Defendant that pleaded it it shall discharge both for in a personal Action a Discharge of one is a Discharge of both For example If one of the Defendants in Trespasse plead a Release to himself which in Law extends to both and the other pleads not guilty which extends but to himself the Plea which goeth to the whole and dischargeth both shall be first tried for if that be found it maketh an end of all and the other shall take advantage of it 94 Freehold and Inheritance more then it doth Chattels Co. Inst p. 1. 3. a. 2. 1 The Parishioners or Inhabitants or probi homines de Dale Parishoâ—â—â— purchase or the Church-wardens c. are not capable to purchase Lands unlesse it were in ancient time when such Grants were allowed But Goods and Chattels they may purchase c. Seigniories suspended 2 If an Estate of Fréehold in Seigniories Rents Commons Co. ib. 29. b. 2. or the like be suspended a man shall not be tenant by the Courtesie but if the suspension be but for years he shall be tenant by the Courtesie As if there be Feme Seignioresse and Tenant and the Tenant makes a Lease for life of the Tenancy to the Seignioresse who taketh an husband and hath issue the wife dieth he shall not be tenant by the Courtesie Howbeit if the Lease had béen made only for years then should he have béen tenant by the Courtesie c. An Estate for life and years 3 In the eye of the Law any estate for life Co. ibid. 46. a. 1 Co. l. 8. 70. b. 4. in Whitlocks Case being as Littleton saith an Estate of Fréehold against the tenant whereof a Praecipe quod reddat doth lie is an higher and greater estate then a Lease for years though it be for a thousand years or more which is a Chattel and if so long never without suspicion of fraud And they have béen alwayes the lesse valuable for that at the Common Law they were subject unto and under the power of the Tenant of the Fréehold c. Claim by the Lord of the Villeins goods 4 Claim by the Lord inter vicines c. of the Villeins goods Co. ib. 118. b. 4 and Lit. §. 177 shall not onely vest the goods which the Villein then hath but also which he after that shall acquire and get Howbeit it is otherwise if an Estate of Frée-hold or Inheritance in lands for there such a general Entry or Claim extends onely to such lands as the Villein hath at that time and not to any other which he shall purchase afterwards Rent 5 If a man grant a Rent out of Black-Acre to one and to his heires Co. ib. 147. b. 1 Co. l. 7. 24 a. b. 3. in Buts ca. and also grant to him that he may distrain for it in the same Acre for the term of his life this is a Rent-charge for his life and a Rent-seck afterwards diversis temporibus but if the Distresse be onely limited for certain years in the same land In that Case it remains a Rent-seck intirely for that the Fée and the Fréehold is seck in such Case c. Joynt-tenants Partition 6 At the Common Law before the Statutes of 31 H. 8. cap. 1. Litt. § 290. Co. ibid. 187. a. 1. and 32 H. 8. cap. 32. Ioynt-tenants by consent might have made partition and if they had béen possest of a Lease for yeares they might have done it by Parol but if they had béen seised in an Estate of Inheritance or for life they could not have made partition without Déed Words conditional to make a Lease void 7 If a man maketh a Feoffment in fée or Lease for life Co. ib. 204. â— 4 ad faciendum or faciendo or ea intentione or ad effectum or ad propositum c. that the Feoffée or Lessée shall do or shall not do such an Act none of these words make the state in the land conditional for in the Case of a common person and not of a will they are in judgment of Law no words of Condition and so it was resolved H. 18 Eliz. in Com. Banco Howbeit for the avoiding of a Lease for years no such precise words of condition are required as in Lease of Fréehold or Inheritance for if a man by Déed make a Lease of a Mannor for years in which there is a clause And the said Lessée shall continually dwell upon the Capital Messuage of the said Mannor upon pain of forfeiture of the said Term these words amount to a Condition So it is also if such a Clause be in such a Lease Quod non licebit to the Lessée dare vendere vel concedere Statum sub poena foris-facturae this amounts to make the Lease for years defeasible And so it was also adjudged H. 40. Eliz. Rot. 1610. inter Brown Ayel And the reason of the Court was because a Lease for years was but a Contract which may begin by word and by word may be dissolved Litt. §. 365. Co. ib. 225. 8 A man in any Action real personal or mixt cannot plead Pleading of a Condition that an Estate of Fréehold or Inheritance was made upon condition without vouching a Record thereof or shewing a writing under seal that proves the same but a man may plead a condition that concerns Chattels either real or personal without shewing forth any writing purporting the same c. Littlet § 388. Co. ib. 239. ib. 2 9 If a Disseisor make a Lease for years Discent a tolle entry and die seised of the Reversion this descent shall take away the entry of the Disseisée because he died seised of the Fée and Frank-tenement like Law it is if the Land be extended upon a Statute Iudgement or Recognizance and so it is likewise in case of a Remainder Howbeit if he had made a Lease for life either for his own or for anothers life and then had died seised of the Reversion this descent shall not take away the Entry of the Disseisée for albeit he had the Fée yet he had not the Frank-tenement and the Law doth ever give great respect to the Estate of Fréehold though it be but for term of life And therefore there is the same Law also where the Disseisor makes an Estate in tail mutatis mutandis Lit. § 525 526 Co. ib. 299. b. 4 10 If I let Land to a Feme sole for life who takes Baron Joynt confirmation to Baron and Feme
Inheritance coupled with such an authority may surrender by Attorney Also there is a diversity betwéen a general absolute power and authority as Owner of the Land as aforesaid and a particular power or authority by him that hath but a particular interest to make Leases for lives or years And thereforr if A be tenant for life the remainder in tail c. And A. hath power to make Leases for 21 years rendring the ancient rent c. he cannot make a lease by a letter of Attorney by force of his power because he hath but a particular power which is personal to himself alone as it was resolved in the Lady Greshams Case 24 Eliz. per Wray and Anderson then Iustices of Assise in Suffolk â—wer to make â—ases not in â—eir own â—me 14 When any hath authority as Attourney to do an Act Co. ib. 79. b 4. he ought to do it in the name of him that gives him such authority for he appoints the Attorney to be in his place and to represent his person and therefore the Attorney cannot do it in his own name nor as his proper act but in the name and as the act of him but gives him the Authority And what he doth otherwise is void So if Attorneys have power by writing to make leases by Indenture for years c. they cannot make the Indentures in their own name but in the name of him that gave them warrant c. 〈◊〉 Office of â—arshalsie 15 The office of Marshal of the Marshalsie cannot be granted for years because it is an Office of great trust annexed to the person Co. l. 9. 96. b 4. in Sir George Reynols Case and concerns the administration of Iustice and the life of the Law which is to kéep such as are in Execution in salva arcta custodia to the end they might the sooner pay their debts c. And this trust is individual and personal so that it shall not be extended to Executors or Administrators for the Law will not repose confidence in matters concerning the administration of Iustice in persons unknown 〈◊〉 an Office â— survivor 16 If an Office of trust be granted to two pro termino vitae suarum without more by the death of one of them he grant shall be void Co. l. 11. 3. b. 4. in Auditors Curles Case for it being an Office of trust no survivor can be thereof In like manner there can be no survivor in the Office of the two Auditors of the Court of Wards for the Statute of 32 H. which erects that Court provides that there shall be two persons c. who shall have a Iudicial voice and therefore in that case the King cannot appoint onely one because it is a matter of trust committed to two and the subject by that Act hath an Interest in it securiùs expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time another at another time by several Patents And albeit he may so do yet he that is first constituted hath no judicial voice before the other be also constituted for it is provided by the Statute that two persons c. shall be one Officer And therefore in the same case although they be constituted by one and the same Patent with these words conjunctim divisim alterius eorum diutius viventis yet that shall serve for no other purpose then that the survivor shall be one of the persons to whom another may be added to make up that one Office c. â—tate 17 A licence to hunt in my Park or Walk in my Orchard extends but to himself not to his servants or other in his company for 13 H. 7. 13. Finch 31. it is but a thing of pleasure otherwise it is of a licence to hunt kill and carry away the Déer for that is a matter of profit â—y 18 Way granted to Church over any land 12 H. 7. 25. b. Finch ibid. extends not to any other but himself for it is but an Easement â—rnment 19 A Reversion granted to two Ioynt-tenants 11 H. 7. 12. b. Finch ibid. and the tenant attorns to one it is a void Attornment 20 If the Sheriff behead one that should be hanged it is felony 5 H. 6. 58. b. 4. Finch ibid. 4 E. 6. 68. b. Finch ibid. 21 The King licenceth one to alien the third part of his Land Licence and he alieneth all it is a void alienation for all Finch ibid. 22 A Lease is made to A. and B. for their lives A. dyeth Joyntenants limitation B. shall have all during his life for it is an Interest But if a Lease be made to I.S. during the life of A. and B. there if one of them die the Estate is utterly determined for that is a limitation Co. l 1. 173. b. 4. Digges Case 23 A. covenants to stand seised to the use of himself for life Revocation and Limitations strictly taken the Remainder to B. in tail c. which power to revoke and limit new Vses by Déed indented to be inrolled in Chancery A. afterwards revokes and limits by Déed indented and then levies a Fine and after that the Indenture of Revocation c. is inrolled in Chancery Here by levying the Fine before inrolment he hath extinguished his power of Revocation c. So also it had béen if he had made Feoffment of the Land for power of Revocation and limitation of Vses are to be punctually observed because strictly taken in Law And therefore also in the same case these words Indented to be inrolled are to be understood Indented and Inrolled Co. ib. 174. b. 2. 24 A. covenants with B. that in consideration B. will marry his Daughter Limitations exitnct he and his heirs will stand seised to the use of B. and his heires B. enters and disseiseth A and makes Feoffment in Fée A. re-enters and after B. marries his Daughter yet here the Vse doth not vest in B because he hath extinguished the limitation of the Vse to him by his Feoffment Dier 56. 18. 35 H. 8. 25 If a man be bound in an Obligation with condition to pay 10 l. to the Obligor at a day to come Obligationâ— Limitation payment and the Obligee delivers him an Horse or any other thing in satisfaction of the 10 l. and the Obligee accepts it the condition is performed for the Obligée may dispence with his own duty by that means but if the condition be that a stranger to the condition shall pay it or that the Obligor shall pay it to a stranger to the Obligation in such cases the Conditions ought to be strictly performed according to their several limitations otherwise the Obligations are forfeit for in such case an horse or other thing in satisfaction of the summe will not suffice because such limitations must be strictly observed Dier 56 20 c.
release to one of them this shall enure to them both because these come in by feofment but those by wrong Co. ib. 278. a. 3. 14 If two Disseisors be and they enfeoffe another Release to Disseisors and take back an Estate for life or in Fée here albeit they remaine Disseisors to the Disseisée as to have an Assise against them yet if the Disseisee release to one of them the releasée shall hold out his Companion because their Estate in the land is by feofment Again if there be two Disseisors and they be disseised and release to their Disseisor and then the Disseisée release one or both of them yet the second Disseisor shall re-enter for they shall not hold the land against their owne release If their be two Femes joint Disseisors and the one taketh husband and the Disseisée release to the other she is solely seised and shall hold out the husband and wife because she claimes by a just title viz. by the release but they came in by wrong Co. ib. 279. b. 1 Litt. §. 478. 15 Dormit aliquando vis moritur nunquam Right canâ— die for of such an high estimation is right in the eie of the Law that the Law preserveth it from death and destruction trodden downe it may be but never trodden out for where it is said that a release of right doth in some Cases enure by way of extinguishment It is to be understood as Littleton doth § 478. in respect of him that makes the release or in respect that by construction of Law it enureth not alone to him to whom it is made but to others also who be strangers to the release which is a quality of an inheritance extinguished As if there be Lord and Tenant and the Tenant make a lease for life the remainder in fée if the Lord release to the Tenant for life the Rent is wholy extinguished and he in remainder shall take benefit thereof So when the heire of a Disseisor is disseised and the Disseisor make a lease for life the remainder in fée if the first disseisée release to the Tenant for life this is said to enure by way of extinguishment for that it shall enure to him in remainder who is a stranger to the lelease and yet in truth the right is not extinct but doth follow the possession viz. the Tenant for life hath it during his time and he in remainder to him and his heires and the right of the inheritance is in him in the remainder for a right to land cannot die or be extinct in déed and therefore if after the death of Tenant for life the heire of the Disseisor bring a writ of Right against him in the remainder and he joine the Mise upon the méer right it shall be found for him because in judgment of Law he hath by the said release the right of the first Disseisée Co. ib. 315. a. 1 16 Remedies to come to rights or duties are alwayes taken favourably Remitters â—â—voured in 〈◊〉 and therefore there is a diversity betwéen money given by way of Attornment and where it is given as parcel of a Rent by way of seisin of the Rent for albeit the Rent be not due before the day yet a payment of parcel of the Rent before hand is an Actual seisin of the Rent to have an Assise and so it is also if he give an Oxe an Horse a Shéepe a Knife or any other valuable thing in name of seisin of the Rent before hand this is good whereas money or any other thing given in name of attornment is onely a seisin in Law which the grantée hath before actual seisin So as a payment of part of the Rent in name of seisin is more beneficial for the Grantée being both an actual seisin and an attornment in Law also and yet being given before the day on which the Rent is due it shall not be abated out of the Rent in such sort that as to give seisin of the Rent it is taken as part of the Rent but as to the payment of the Rent it is accounted as no part of the Rent and such prevarications the Law permits when a right is concerned â—â—emiters faâ—â—ured in law 17 If Tenant in taile discontinue and hath issue a Daughter Litt. §. 671. Co. Inst p. 1. 353. b. 4. and die and the Daughter being of full age takes Baron and the discontinuée releaseth to the Baron and Feme for their lives this is a Remitter to the Feme and the Feme shall be in by force of the entaile because Remitters to ancient Rights are much favoured in Law It is otherwise of a discent for if a woman be disseised and being of full age taketh husband and then the Disseisor dieth seised this discent shall bind the wife albeit she was covert when the discent was cast because she being of full age when she tooke Baron did not claime her Interest in the land 〈◊〉 West 2. 〈◊〉 4. 18 There hath béen a Question in our Bookes upon these words of the Statute of West 2. cap. 4. by default as for example whether a recovery being had by default in an Action of waste against Tenant in Dower or by the Courtesie a Quod ei deforceat lyeth by the said Statute but doubtlesse it doth for albeit the Defendant may give in evidence if he knoweth it yet when he makes default the Law presumeth he knoweth not of it and it may be that he in truth knew not of it and therefore it is reason that séeing the Statute which is a beneficial Statute hath given it him that he be admitted to his Quod ei deforceat in which writ the truth and right shall be tried Ind so it is also of a Recovery by default in an Assise albeit the Recognitors of the Assise give a Verdict a Quod ei deforceat lyeth and all this as to this point was resolved in P. 33 El. Rot. 1125. And so the doubt in 41 E. 3. 8. is well resolved if Tenant for life make default after default and he in reversion is received and pleads to issue and it is found by Verdict for the Demandant the default and Verdict are causes of the judgment and yet the Tenant shall have a Quod ei deforceat in favour of Right and Iustice especially when the Statute intends him as much 〈◊〉 like 19 If the Baron discontinue the land of the Feme Littl. §. 677. Co. ib. 356. b. 4 and the discontinuée demise the same land to the Feme for term of her life and deliver seisin accordingly In this Case it séemes whether the Baron agrée or disagrée to the livery it is a Remitter to the Feme it is otherwise if she had béen sole but one of the reasons why in that Case she is remitted is for that the Law having once restored her ancient and better right will not suffer the disagréement of the husband to devest
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
implies a warranty nevertheless because for the most part a warranty is contained in a Charter the writ retains the same form and in such cases the words unde chartam habet c. are not material Escheat 17 If a man be condemned to be hangd for felony and happen to die after such judgement and before execution thereof by the officer F.N.B. 144. b. yet the writ of Escheat shall say pro quo suspensus fuit c. and it is not material whether he be hanged or no but the writ retains that form because for the most part after such judgement the felon is hanged 192 Frequentia Actus multum operatur Fine Non-claim 1 A. possessed of divers lands in D. for years at will Co. l. 3. 79. b. 2. in Fermors case and by Copy and seised of other lands there in fée demises the whole to B. for life and then levies a fine to B. c. of so many acres as amount to the whole land continues possession and payes the rents to the Lord five years pass yet is not the Lord barred by his non-claim because in as much as the lessée had lands in fée simple in the same Town the fine shall be presumed to be levied of such lands there whereof it is lawfull to levy a fine and then as for the quantity albeit the fine contain more acres than his own fee simple lands that can prove nothing to pass the Lease or Copy land because it is the common use and practice almost in all fines to insert more acres therein than the lands intended to be passed by such fines do contain Corporation 2 Albeit a Corporation have a Commencement by Charter Co. l. 4. 77. b. in the case of Corporations and by consequence within memory and it be expressed in their charter that the choice of their Maior Bailifs and other principal officers shall be by the Commonalty yet if by a continual usage they have chosen them by a certain select number of the principal of the Commonalty or of the Burgesses albeit no constitution can be shewed to warrant such election yet such election is adjudged good in Law because it it hath been so often put in execution Vide supra 189. 25. Duâ—chy of Cornwall 3 Ed. 3. gave unto the Black Prince the Dukedom of Cornwall Co. l. 8. 21. b. 1. in the Princes case c. habendum et tenendum eidem duci ipsius haeredum suorum Regum Angliae filiis primogenitis et dicti loci ducibus in regno Angliae haereditarie successuris c. This grant was adjudged fee simple and not at will as some would have had it And one of the reasons was because divers Acts both of E. 3. and the Black Prince himself did confirm the same to be fee simple and not any inferiour estate for E. 3. in the 14. year of his reign when he was to make war against Philip de Valois King of France which was but 3. years after the said Charter grants to the Prince by the name of Edward Duke of Cornwall to be Lieutenant of the Realm so long as the King should be beyond sea Then in 21 E. 3. the Prince for a fine of 1000 marks demiseth the Stanneries to Redman rendring 3000 marks rent per annum And divers other Letters Patents were cited in the Princes case in the 8. Rep. to the like purpose all which did confirm the said estate of the Prince to be fee simple For frequentia actus multum adjuvat Vide supra 71 4. Also another reason to prove the title of the Prince to the Dutchy of Cornwall was that ever since the creation thereof which was in the 11 of Ed. 3. in the succession of divers ages it had béen enjoyed according to the said Charter by the eldest son of the Kings of England c. for which sée the book at large 193 It alwayes construeth things to the Best And therefore Co. Inst part 1. 87. b. 3. 1 If a man be seised of a rent charge rent seck common of pasture Guardian Infant under 14. or such like Inheritances which do not lie in tenure and dieth his heir within the age of 14 years In this case the heir may choose his Guardian but if he be of such tender years as he can make no choice then if the father hath made no disposition of the custody of the child the Law adjudged it most fit that the next of kin to whom the Inheritance cannot descend should have the custody of him and whosoever taketh the rent c. the heir shall charge him in an accompt Co. ibid. 98. a. 3. 2 Where an Abbot holding in Frankalmoigne together with his Covent aliens the land to a Secular man he cannot hold as they held Frankalmoigne Socage viz. in Frankalmoigne yet because of necessity he must hold the land of some person and by some service the Law in this case creates and appoints him the lowest and easiest tenure that is viz. to hold the land of the Lord in socage by fealty only which is incident to every tenure Co. ibid. 99. b. 3. so likewise if the Seigniory be transferred to a stranger by act in Law and thereby the privity is altered In such case also the tenure in Frankalmoigne is changed to a tenure in socage by fealty And therefore if there be Lord Mesn and Tenant and the Tenant is an Abbot who holds of the Mesn in Frankalmoigne Here if the Mesn die without heir so as the Mesnalty escheats to the Lord Paramount the Abbot shall hold immediately of the Lord Paramount by fealty only because he cannot hold of him in Frankalmoigne 148 35. Co. ibid. 146. b. 3 3 If a Villein descend to two Coparceners Intire Inheritances this is an intire inheritance albeit the Villein himself cannot be divided the Law hath ordained that the profit of him shall be divided for one Coparcener may have the service one day one wéek c. and the other another day or wéek c. And for the same reason it is that a woman shall be endowed of a Villein viz. to have him every third day wéek or c. Likewise if an Advowson descend to Coparceners the Law hath so ordered it that they shall present by turns Et sic de similibus In all which cases the Law hath contrived and established the best way and order that may be for the parting of Intire inheritances which are otherwise in their nature indivisible Co. ibid. 214. â— 2. 4 If two joyntenants the one for life and the other in fee Iâ—intenants Tenant for life Reversioner joyn in a Lease for life or a gift in tail reserving a rent In this case the rent shall inure to them both for if the particular estate determine they shall be joyntenants again in possession But if tenant for life and he in the reversion joyn in a
Lease for life or a gift in tail by déed reserving a rent this shall enure to the tenant for life only during his life and after to him in the reversion for each of them grants that which he may lawfully grant and if at the Common Law they had made a feoffment in fee generally the feoffee should have holden of the tenant for life during his life and after of him in reversion And so it was holden Mich. 36 37 Eliz. in B. R. Release 5 If a man make a lease to A. for term of the life of B. and after release to A. all his right in the land Co. Inst part 1. 273. b. 1. ◠by this A. hath an estate for the term of his own life for a lease for term of his own life is higher and better in judgement of Law than an estate for the term of another mans life So if a release be made to tenant by Statute Merchant or Staple or tenant by Elegit or to Guardian in Chivalry who holdeth in for the value of the marriage by him in reversion of all his right in the land by this a fréehold passeth for the life of him to whom the release is made for that is the best and greatest estate that can pass without apt words of Inheritance viz. heirs Accruer 6 Queen Eliz. being seised of a Reversion in fee upon an estate tail in the Lord Stafford grants it to Tindal in tail Co. l. 8 77. a. 2. in the Lo. Staffords case upon condition to have praedictam reversionem in fee Here these words praedictam reversionem shall not be construed to extend to the estate tail granted before to Tindal but to the reversion in fee. Feoffments 7 The heir of the disseisor being in by descent Co. Inst part 1. 302. b. 1. Littl. §. 534. the disseisee and he jointly enfeoff another in fee by deed and livery of seisin is had thereupon In this case as to the heir the land passeth and the deed enures by way of feoffment and as to the disseisee by way of Confirmation for by construction of Law the land shall ever pass from him that hath the estate of the land in him as if Cestuy que use and his feoffees after the statute of 1 R. 3. 1. and before the Stat. of 27 H. 8. 10. had joyned in a feoffment it had been the feoffment of the feoffees because the estate of the land was in them So it is likewise if the tenant for life and he in the remainder or reversion in fee joyn in a feoffment by deed the livery of the freehold shall move from the lessee the inheritance from him in the reversion or remainder from each of them according to his estate for it cannot be adjudged by Law that the feofment of tenant for life doth draw the reversion or remainder out of the lessor or him in remainder or doth work a wrong because they joyned together So if there be tenant for life the remainder in tail the remainder in tail c. and tenant for life and he in the first remainder in tail levy a fine this is no discontinuance or devesting of any estate in remainder but each of them pass that which they have power and Authority to pass The like 8 If the disseisor and disseisee joyn in a charter of feoffment Co. ibid. 302. b. 4. and enter into the land and make livery it shall be accounted the feoffment of the disseisee and the confirmation of the disseisor because the entry of the disseisee was then lawfull It is otherwise when the heir of the disseisor and the disseisee join as in Littletons case supra 7. for in such case the disseisees entry is not congeable But if he in the reversion in fee and tenant for life ioin in a feoffment by parol this shall be as some hold first a surrender of the estate of tenant for life and then the feoffment of him in the reversion for otherwise if the whole should pass from the lessee then he in the reversion might enter for the forfeiture and every mans act ut res magis valeat c. shall be construed most strongly against himself 9 Words are alwaies taken best for the Speaker Hob. 77. Adrian Coote so as there is one Rule for deeds or pleading and another for words 194 Every Act to be lawfull when it standeth indifferent whether it should be lawfull or not Co. Inst part 1. 42. a. 4. 1 A. tenant in fee simple makes a lease of lands to B. to have and to hold to B for term of life Estates for life without mentioning for whose life it shall be This shall be deemed for term of the life of the lessee because in this case it shall be taken most strongly against the lessor an estate for a mans own life being as to him better and higher than for the life of another But if tenant in tail make such a lease without expressing for whose life this shall be taken but for the life of the lessor for two reasons First when the construction of any act is left to the Law the Law which abhorreth injury and wrong will never so construe it that it may work a wrong And in this case if by construction it should be for the life of the lessee then should the estate tail be discontinued and a new reversion gained by wrong but if it construed for the life of the tenant in tail then no wrong is wrought And it is a general Rule that whensoever the words of a deed or of the parties without deed may have a double intendment and the one standeth with Law and right and the other is wrongfull and against Law the intendment that standeth with Law shall be taken 2. The Law respecteth more a lesser estate by right than a larger estate by wrong as if tenant for life in remainder disseise the tenant for life in possession in this case the disseisor hath a fee-simple but if tenant for life in possession die now is the disseisors wrongful estate in fee by Iudgement of Law changed to a rightfull estate for life So if tenant in tail make a lease to another for term of life generally and after releaseth to the lessee and his heirs Here albeit between the tenant in tail and the releasee a fee-simple passed yet after the death of the lessee the entry of the issue in tail is lawfull which could not be if it were a lease for the life of the lessee for then by the release it had been a discontinuance executed In like manner if I retain a servant generally without expressing any time the Law shall construe it to be for one year because that retainer is according to Law Vide Stat. 5 Eliz. cap. 4. Co. Inst part 1. 55. b. 3. 2 If lessor at will without the consent of the lessee enter into the land and cut
pars 1. 112. a. 4. 5 To cover in English is tegere in Latin and is so called Contract for that the wife is sub potestate viri and therefore is disabled to contract with any without the consent of her husband who is her head 213 All that she hath is her Husbands Vide Ho. 216. Co. Inst pars 1. 112. a. 4. 1 Omnia quae sunt uxoris sunt ipsius viri non habet uxor potestatem sui sed vir Bracton lib. 2. cap. 15. And again Nothing the wives Res licet sit propria uxoris vir tamen ejus Custos cum sit caput Mulieris Bract. lib. 5. cap. 25. Co. ibid. 326. a. 4. 2 The husband is tenant in tail the remainder to the wife in tail Discontinuance the husband makes a feoffment in fee In this case the husband by the Common Law did not only discontinue his own estate tail but his wives remainder also because at the time of the feoffment he was seised of his wifes remainder in her right Howbeit after the death of the husband without issue the wife may enter by the Statute of 32 H. 8. 28. Co. ibid. 351. a. 1. 3 If a man taketh to wife a woman seised in fee Inheritance he gaineth by the intermarriage an estate of freehold in her right which estate is sufficient to work a remitter and yet the estate which the husband so gaineth dependeth upon uncertainty and consisteth in privity for if the wife be attainted of felony the Lord by escheat shall enter and put out the husband otherwise it is if the felony be committed after issue had Also if the husband be attainted of felony albeit the King thereby gaineth no freehold for that remaineth still in the wife yet the King shall have a pernary of the profits during the Coverture Co. ibid. a. 3. 4 If a man marry a woman possessed of a term for years Chattel real In this case the baron is also possessed thereof in her right and hath power to dispose thereof by grant or demise he may also forfeit it by Outlawry or Attainder because they are gifts in Law Co. ibid. 5 Vpon an Execution against the husband for his own debt The like the Sheriff may sell the term Howbeit the husband cannot dispose thereof by will Also if he make no disposition or forfeiture of it in his life survive the wife he shall have it by gift in Law but in such case if the wife survive him she shall have it again There is the same Law likewise of estates by Statute Merchant Statute Staple Elegit wardships and other chattels real in possession Vide Hob. 3. Yong and Radford The like 6 Chattels real en auter droit Co. ibid. or consisting meerly in action or use the husband shall not have by the intermarriage but Chattels real being of a mixt nature viz. partly in possession and partly in action which happen during the Coverture the husband shall have by the intermarriage if he survive his wife albeit he reduceth them not into possession in her life-time but if the wife survive him she shall have them As if the husband be seised of a rent-service charge or seck in the right of his wife and the rent becomes due during the coverture the wife dieth the husband shall have the arrerages but if the wife survive him she shall have them and not the executors of the husband So it is of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold Vide 50 E. 3. 13. 28 H. 6. 9. 7 H. 7. 2. But the wife shall have it if she survive him and the husband if he survive her Et sic de similibus But if the arrerages had become due or the Church had fallen void before the marriage In such case they were meerly in action before the marriage Co. ibid. b. 1. And therefore the husband should not have them by the Common Law although he survived her And so it is likewise of Reliefs mutatis mutandis But now by the Statute of 32 H. 8. 37. if the husband survive the wife he shall have the arrerages as well incurred before the mariage as after Chattels personal 7 Things in Action as debts by obligation contract or otherwise Co. ibid. the husband shall not have unless he and his wife recover them But the marriage is an absolute gift of all Chattels personal in possession in her own right whether the husband survive the wife or no so if an Estray happen within the Manor of the wife and the husband die before seisure the wife shall have it But after seisure by the husband the property vesteth immediatly in him and if he die his executors shall have it Howbeit as to personal goods there is a diversity betwéen a property in personal goods as is aforesaid and a bare possession for if personal goods be bailed to a feme or if she find goods or if goods come to her hand as Executrix to a Bailiff and then she take a husband this bare possession is not given to the husband yet in such case the Action of detinue must be brought against husband and wife as regularly in all other actions against the wife it ought to be Coâ—fi mation 8 If a man let land to two men to hold the one moity to the one for life and the other moity to the other for his life Co. Inst pars 1. 299. b 1. and the lessor confirm the estate to them both in the land to hold to them and to their heirs they are tenants in common of the Inheritance for regularly the confirmation shall enure according to the quality and nature of the estate which it doth enlarge and increase But if such a lease for life be made to husband and wife by several moities and the lessor confirm their estate in the land to hold to them and their heirs this confirmation as to the moity of the husband enureth only to the husband and his heirs for the wife had nothing in that moity but as to the moity of the wife they are Iointenants for the husband hath such an estate in his wifes moity in her right as is capable of a Confirmation Feme Executor 9 A feme covert cannot make an executor without the assent of her husband Co. l. 4. 51. b. 2. Andrew Ognell and the administration of her goods of right appertains to her husband Replevin 10 If the beasts of a feme sole be taken and after she takes a Baron F. N. B. 69. k the Baron alone may sue a Replevin Trin. 33 E. 3. Obligation 11 If a feme sole be bound in an obligation and take baron F. N. B. 121. c. and after dies the baron shall not be charged therewith if recovery thereof were not had against him
Montjoys case 5 Donée in taile is restrained by a particular Act of Parliament Warranty no barre quòd non faceret aliquid in nocumentum c. haered c. nisi pro juntur uxor c. reddend verum antiquum reddit c. Here if the ancient reservation was of gold he cannot reserve silver if two farmes were anciently let to several tenants for several rents he cannot let them both to one man for one intire rent nor demise parcel of the farme rendring rent pro rata nor reserve it payable at two feasts when it was before payable at four Howbeit he may reserve eight bushels of wheat instead of a quarter reserved before for they are all one in qualitie value and nature Co. l. 6 65. b. Sir Moile Finches case 6 The change of the name of a thing cannot alter the thing it selfe Reservation of rent but the new name may be used by the owner in conveyances praecipes c. without prejudice And therefore in Sir Moile Finches case in the 6. Rep. it was agréed that Exceter-house in the Strand and Dorset-house in Fleet-street having then within thrée yeares before gained those names might be well enough known to their neighbours by the same names and distinguished from all other houses and might also by those names be demanded in praecipes c. so in a praecipe brought of a Mannor in com Bedd by the name of the Mannor of Asple whereas it had béene formerly and was still called Asple guise here the tenant after the view demanded judgement of the writ unto which the demandant said the Mannor put in view was also known by the name of Asple 41 E. 3. tit Maint de briefe 49. 8 H. 6. 32. and it was adjudged that such a name gotten by the knowledge of the Country is sufficent Change of names without the true and proper name for in this sense it is true De nomine proprio non est curandum dum in substantia non erretur quia nomine mutabilia sunt res autem immobiles Co. l. 9. 110. b. in Meriel â—reshams case 7 Albeit Covina of it selfe and ex vi termini Corin. ought to be betwixt two yet when it is coupled with fraud which may be committed by one alone the Court shall adjudge upon the matter and not upon the strict Etymologie of the word for Plerunquè dum proprietas verborum attenditur sensus verborum amittitur Co. l. 11. 34. a. in Alexander Powlters case 8 The Statute of 23 H. 8. 1. House-burniâ— takes away Clergie from the House-burner the Statute of 1 E. 6. 12. gives the benefit of Clergie to all felons save onely for Murder Poysoning Burglary Robberie Horse-stealing and Sacriledge so as House-burning being in this Statute casus omissus such an offender séemeth thereby to be allowed his Clergie Neverthelesse because the Statute of 25 H. 8. 3. takes away Clergie from the House-burner that standeth mute challengeth above 20 or answereth not directly albeit the offence be committed in another County then where the offender is tried And likewise because the Statute of 4. and 5. P. and M. 4. takes away Clergie from the accessories of that offence it is adjudged that according to the intention of the makers of the Statute of 1 E. 6 House-burning is included within the meaning of that Act although it is a penal Law and quite left out of the letter of the same Act. Letters omitted 9 In 17 El. Dyer 342. a. Co. l. 9 48. a. The Earl of Shrewsburies case Co. l. 2. 17. a. Lauds case The four first letters in the name and stile of H. 7. viz. H. R. A. F. for Henricus Rex Angliae Franciae c. were left out of his Letters patents made to Simon Digby yet adjudged good And in the 38 H. 6. 33. A count in which it was alleadged that T. W. resignavit c. in manus J. Episcopi c. loci illius Ordinarii And exception was taken because it was not in manus Johannis Episcopi séeing the Letter J. signified nothing but yet the Count was adjudged good Wast 10 The Statute of Glocester cap. 5. Co. Inst 1. 54. b which gives an action of wast against the Lessée for life or yeares which lay not against them at the Common Law speaketh of one that holdeth for terme of yeares in the Plural number and yet it appeareth by Littleton Sect. 67. that although it be a penal Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall also be within the same remedie although it be out of the letter of that Law 11 Vide Pl. Co. 109. b. sequent Indictment 11 False latin shall not quash an Indictment or a Count Col. l. 5. 121. a. 4. in Longs case for albeit an original writ shall abate for false Latin as it is holden in 9 H. 7. 16. 2 H. 4. 8. 44. E. 3 18. 10 E. 3. 1. yet Iudicial writs or a fine shall not be impeached for false Latin as is held in 9 E. 3. The same Law of an Indictment as praefato reginae for praefatae mamilla for mammilla c. Vide suprà 13 4. False Latine 12 In the 14 of E. 3. the King grants licence to found in Oxford Co. l. 11. 8. b. Doctor Ayries case an Hall under the name of the Hall of the Scholars of Oxford the Founder calls it the Hall of the Queen They present to a Church by the name of Provost Fellowes and Scholars of the Colledge of the Queen in the Universitie of Oxford The Incumbent devises the Rectorie which they confirme by the name of Provost Fellowes and Scholars of the Hall or Colledge of the Queen in the Universitie of Oxford Misnamer of a Colledge Notwithstanding these variances the presentation and confirmation are both good for a small variance is not to purpose if the description be such that no other can be intended as Abbot Richerd grants by the name of Richard 15 Talis interpretatio fienda est ut evitetur absurdum inconveniens ne judicium sit illusorium Pluralities of Benefices By the Statute of 31 H. 8. 13. Co. l. 4. 79. a. Digbies case if a Parson or Vicar having one benefice with cure of soules being worth eight pounds per annum or above take another and be instituted and inducted in the possession of the same c. the first shall be void Here albeit the Statute saith plainly instituted and inducted yet if he be onely instituted into it he shall lose the first before induction and this is in regard of the great inconvenience that would insue if the first benefice should not be void by institution to the second by force of the said Act for then one may be instituted to divers benefices with cure the great charge
homage Ancestrell again so it is if a Copihold escheat and the Lord maketh a feoffment in fée upon Condition and entreth for the condition broken it shall never be Copihold again because in both these cases the custome or prescription which supported and was the cause of the tenure is interrupted and that being once broken is become remedilesse The land evicted the Annuity is gone The mariage failing the land revests 17 If a man grant an annuitty ppruna acra terrae Co. ibid. 204. a. 2. if the acre of land be evicted by an elder title the annuity shall cease so if it be pro decimis and the grantee be disturbed or pro consilio or quòd praestaret consilium and the grantee refuse to give counsel the annuity shall in these cases cease likewise if a woman give lands to a man and his heires causa matrimonii praelocuti in this case if the man refuse to marry her she shall have the land againe to her and her heires but it is otherwise in case of a man Co. ibid. 238. a. 4. 18 If a disseisor make a gift in taile A dying seised and yet no descent to take c. and the Donee discontinueth the fée and after disseise the discontinuee and dieth seised this discent shall not take away the entry of the diseissée For the discent of the Fée simple is vanished and gone by the Remitter And albeit the issue be in by force of the estate taile yet the Donée died not seised of that estate and of necessity there must be a dying seised Co. ibid. 239. a. 2. 19 When the degrées are past so as a writ of Entry in the Post doth lye yet by event it may be brought within the degrées again A writ out of the degrees may be reduced as if the disseisor enfeoffe A. who enfeoffes B. who enfeoffes C. or if the disseisor die seised and the land descends to A. and from him to B. and from him to C. Now are the degrées past and yet if C. enfeoffe A. or B. now is it brought within the degrées again Co. ibid. 242. b. 1. 20 If the eldest sonne hath issue and dieth A descent when privity of bloud faileth and after his decease the younger sonne or his heire entreth and many descents cast in his line yet may the heires of the eldest sonne enter in respect of the privity of bloud and of the same claime by one title But if the younger sonne make a feoffment in fée and the feoffée dies seised that discent shall take away the entry of the eldest in respect that the privity of bloud faileth Co. ibid. 285. a. 4. 21 If an action of wast be brought by Baron and feme in remainder in special taile Death voidâ— the action and hanging the writ the wife dieth without issue the writ shall abate because every kind of action of wast must be ad exhaeredationem Co. ibid. 291. a. 4. Execut. 7. 22 If the bodie of a man be taken in execution upon a Ca. sa and the Plaintiffe releaseth all actions Release of debt excuseth execution yet shall he still remaine in execution but if he release all debts duties or judgements he is to be discharged of the execution because the debt or the dutie or the judgement which is the cause of the execution is discharged Co. ibid 312 a. 1. 23 The Reason that Littleton giveth of the difference betwéen a rent-service and a rent-charge is Avowry for a rent service upon the person for that in rent-service the avowry shall allwayes be made upon the person but in rent-charge never upon the person but upon the Land charged Now here it may be said that this reason is taken away by the Statute of 21 H. 8. 19. For by that Statute the Lord needs not avow for any rent or service upon any person in certaine and then by Littletons reason there néedeth no privity to the attornment of a Seigniory for say they Cessante causa ratione legis cessat lex As at the Common Law no aide was grantable of a stranger to an Avowrie because the Avowrie was made of a certaine person but now the Avowrie being made by the said Act of 21 H. 8. upon no person therefore the reason of the Law being changed the Law it selfe is also changed and consequently in an Avowrie according to that Act aid shall be granted of any man and the like in many other cases which case is granted to be good Law But albeit the Lord as hath béen said may take benefit of the Statute yet may he avow still at his election upon the person of his tenant and albeit the manner of the Avowrie be altered yet the privity which is the true cause of the said difference remaineth as to an Attornment Littl. § 568. Co. ibid. 316. a. 3. 24 If the reversion of Lessée for life be granted Upon alienation the grantee shall attorn and Lessée for life assigne over his estate the Lessée cannot attorne but the attornment of the Assignée is good because as Littleton saith it behoveth that the tenant of the land do attorne and after the assignement there is no tenure or attendance c. betwéen the Lessée and him in reversion so likewise if Lessée for life assigneth over his estate upon condition he having nothing in him but a condition shall not attorne but the assignée may attorne because he is tenant of the land The assignee of tenant by possession shal â—attorn 25 Tenant in taile after possibility of issue extinct shall not be compelled to attorne for the inheritance which was once in him Co. ibid. 316. a 4. but his assignée shall be compelled to attorne because then that priviledge is lost the assignée having in him onely a bare estate for life Release of quarrels is release of Act. 26 Quaerela being derived à quaerendo properly concerneth personal actions or mixt at the highest Co. ibid. 292. a. 3. for the Plaintiff in them is called Quaerens and yet if a man release all quarrels it is as beneficial as all actions for by it all actions both real and personal are released because by the release of all quarrels all causes of actions are released albeit no action be then depending for the same Where the estate is defeasible the tenant is not compelâ—able to attorn 27 It is a general rule that when the grant by fine is defeasible Co. ibid. 318. a. 4. 36 H. 6. 24. there the tenant shall not be compelled to attorne As if an infant being seised of a reversion levie a fine thereof this is defeasible by writ of error during his minority and therefore in this case the tenant shall not be compelled to attorne so likewise if before the Statutes of 4 H. 7. 24. and 32 H. 8. 36. a tenant in taile had levied a fine the tenant could not have béen
contraria voluntate c. Co. l. 8 48. a. John Webbes case Co. Inst pars 1 131. a. 4. Ibid. See more authorities 2 If after a Protection is allowed by Innotescimus A Protection must be disallowed by the Chancellor the Defendant tarry in the Countrey without going to the service for which he was retained above a convenient time after he had the Protection or otherwise repaire from the same service upon information thereof to the Lord Chancellor he shall repeale the Protection in that case by another Innotescimus but 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 matter of as high nature Co. Inst pars 1 204. a. 4. 3 E. 6. Dyer 65 66. 4 Mar. 138. 3 If a man maketh a feofment in fée or for life ad faciendum or faciendo or ea intentione or ad effectum or ad propositum What words make a condition and what not that the Feoffée shall do or shall not do such an act none of these words make the estate of the land conditional for in judgement of Law they are no words of Condition to make an estate of inheritance or Freehold defeâ—sible which took effect by Livery except it be in the Kings case or in the case of a will But if a Lease for yeares be made with such a clause or thus Quod non licebat to the Lessee dare vendere vel concedere statum sub poena forisfacturae H. 40. Elizabeth Brown Ayers case Plowd Co. 142 Browning and Bestons case Co. ibid 214. b 3. 1. ibid. per auth this amounts to make the Lease for yeares defeasible and so was it adjudged in Queen Elizabeths time in the Court of Co. Pl. and the reason of the Court was That a Lease for yeares was but a contract which may begin by word and may also by word be dissolved 4 If a man make a gift in taile or a Lease for life upon Condition Where an estate shall cease upon condition where not that if the Donee or Lessee goeth not to Rome before such a day the Gift or Lease shall cease or be void the Grantee of the reversion shall never take advantage of this Condition because the estate cannot cease before an entry but if the Lease had been but for yeares there the Grantee might have taken advantage of the like Condition because the Lease for yeares ipso facto by the breach of the Condition without any entry was void for a Lease for yeares may begin without Ceremony and so may end without Ceremony but an estate of Freehold can neither begin nor end without Ceremony Co. l. 3. 64. b. 4. and 65. a. 1. Pennants case Things that lie in grant not surrendred without deed 5 Rents Advowsons Conditions Reversions Remainders Co. ibid. 338. a. 3. and all other things that lie in grant as they cannot be granted without Deed so shall they not be surrendred without Deed. 6 An Obligation or other matter in writing cannot be discharged by an agreement by word Finch 11. Doct. and Stud. li. 1. cap. 12. 19 E. 4. 1. b. Vide infrà 25. An annuity by prescription 7 In an Annuity growing by prescription rien arrere is a good plea for this prescription is a matter in fait 5 H 7. 33. Finch 12. 4 H. 7. 7. b. but in an Annuity by Deed it is no good plea without shewing an Acquittance Matter pleaded against the King 8 When a man avoides the Kings Title by as high a matter of Record as the King claimeth he may have it by way of Plea without being driven to his Petition though the King be intitled by double matter of Record As one is attainted of Treason by Parliament and an office finds his lands whereby the King seiseth them the party may alleadge restitution by Parliament and a repeale of the former Act. Finch 12. Co. l. 4. 57. a. 4. In the Sadlers of Londons Case Power of revocation annulled by feofment or release 7 A. by Indenture enfeoffs B. of two acres to the use of A. for life remainder in taile to C. remainder to D. in fee with proviso Co. l. 1. 113. a. Albanies case that if E. die without issue A. by Indenture sealed c. in the presence of 4 witnesses may alter the uses c. A. of one acre enfeoffes F. and for the other acre A. by Indenture renounceth surrenders releaseth c. unto B. C. and D. the said Power Condition Authority c. E. dies without issue A. by Indenture revokes the first uses and limits new ones And it was resolved that A. had by the said feofment and release barred himselfe of limiting other uses for as the Proviso and Covent aforesaid did commence by Deed so by Deed may they be annulled and defeated because in all cases when any thing executory is created by a Deed the same thing by consent of all persons which were parties to the creation of it may be againe by their Deed annulled And therefore Warranties Recognisances Rent-charge Annuities Covenants Leases for yeares uses at the Common Law and the like may by a Deed of Defeasance with the mutual consent of all those that were parties to the creation of them be annulled discharged and defeated for it would be strange and unreasonable that a thing which is created by the act of the parties shall not be againe by their act with their mutual consent dissolved Bloud no valuable consideration against the Statute of 13 El 5. 10 Nature and bloud are not valuable considerations to satisfie the Statute of 13 El. 5. Co. l. 3. 81. a. 4. Twines case and therefore if he that is indebted to five several persons to each of them in 20 l. in consideration of natural affection gives all his goods to his sonne or cofin in this case in as much as the other shall lose their due debts c. which are things of value the intention of the act was that the consideration in such case should be valuable for equity requires that such a gift which shall defeat others of their due debts shall be upon as high and as good a consideration as those debts are which are so to be defeated A right cannot be transferred 11 By the Rule of the Common Law a right or title Co. l. 4. 1. a. Vernonâ— case which any hath to any Lands or Tenements of inheritance or Frank-tenement cannot be barred by acceptance of any manner of collaterall satisfaction or recompence As if A. disseise B. Tenant for life or in fée of the Mannor of Dale and after gives the Mannor of Sale to B. and his heirs in full satisfaction of all his right in the Mannor of Dale which B. accepts yet B. may neverthelesse enter into the Mannor of Dale or recover it in any real action for the
of 12 men c. Co. Inst pars 1. 46. a. 2. 25 The Termor for yeares before the Statutes of Glocester 6 E. 1. cap. 11. and 21 H. 8. cap. 15. The Termâ—â— could not fâ—fie was not able by the Common Law to falsifie a covenous recovery of the Freehold because he could not have the thing that was recovered viz. the Fréehold Co. l. 8. 118. a. 3. 26 The Statute of Westm 2. cap. 21. Cessavit gives a Writ of Cessavit haeredi petenti super haeredem tenementum super eos quibus alienatum fuerit hujusmodi tenementum yet in 33 E. 3. Tit. Cessavit 42 in Doct. Boâ—hams case where there were two Coparceners Lords and Tenant by Fealty and certaine rent the one Coparcener hath issue and dies in this case the Aunt and Neice could not joyn in a Cessavit because the Neice though heire to her mother could not in this case have a Cessavit in regard she could not have the effect of it viz. the recovery of the arrearages accrued in her Mothers time for that they did not belong unto her but unto her Mothers Executor c. Divorce 27 Causa frigiditatis naturalis perpetuae Dyer 178. 40. 2. Eliz. is held a sufficient ground of divorce whereupon such a Sentence was given H. 2. Eliz. in the Court of Audience betwixt Sabel and his wife at the suit of the wife And such another about the same time betwixt Bury and his wife at the suit also of the wife who afterwards married Cary and had issue Bury also married another woman and had issue and therefore the Doctors of the Civil Law would have had them co-habit againe together because as they said Sancta Ecclesia decepta fuit in priori judicio 36 Non officit conatus nisi sequatur effectus Inheritances depend not upon uncertaine words 1 In Sir Anthony Mildmayes case in the 6 Report which was a resolution against perpetuities it was resolved that these words Attempt Co. l. 6. 42. a. 3. Sir Anthony Mildmayes case c. or goe about c. or enter into communication c. are words uncertain and void and God defend that Inheritances and Estates should depend upon such incertainties for it is true Quòd misera est servitus ubi jus est vagum quòd non definitur in jure quid sit conatus nec quid sit a going about or communication And the Rule of Law decides this point Non-officit conatus nisi sequatur effectus Resistance must be by some overt act 2 If the Testator devise lands to I. S. for 60 yeares Co. l. 8. 91. 2. 4. Frances case if he shall so long live provided if I. S. molest or hinder the Executor so that he cannot take and enjoy the goods of the Testator that then his estate shall cease In this case a bare denial by Parol is not a breach of the Proviso but here ought to be some act done as after request made by the Executor to shut the door against him or to put his hands upon him and to resist him or the like so that by reason of some such open act he doth not permit the Executor to carry away the goods according to the Proviso And Cook Chief Iustice said that in this case it is not sufficient to say Quòd praedictus Johannes non praemisit praedict execut c. quietè habere removere capere praedict bona or quòd praedict Johannes impedivit illum c. but he ought to alleadge a special breach by reason of some special disturbance or interruption in that case by some overt act unto which the other party may make a certaine answer and upon which a certaine issue may be taken whereof the Iury may inquire and the Court may judge whether it were a sufficient breach of the Proviso or not Cause of disfranchisement cannot be without some overt act 3 Sir James Bagge being a Capital Burgesse of the Town of Plimouth behaved himselfe contemptuously towards the Major there Co. l. 11. 98. a. 3. Sir James Baggs case and said unto him You are a cosening knave come kisse mine c. and perswaded A. and B. Vintners that they should not pay Wine-waight c. whereupon the Major removed him but upon complaint in the Kings Bench a Writ of Restitution was awarded to restore him upon this ground principally for that the cause of a disfranchisement in this case ought to be founded upon some act which he shall do against the duty of a Citizen or Burgesse and to the prejudice of the Common-Wealth of the City or Burrough whereof he is Citizen or Burgesse and against his oath which he took when he was made fréeman there but words of contempt or contra bonos more 's albeit they be against the chiefe Officers and his brethren may be good causes to punish him and to commit him till he put in sureties for the good behaviour but not to disfranchise him So likewise if he intend or endeavour of himselfe or conspire with others to do any thing against the duty trust of his fréedom and to the prejudice of the Common-wealth of the City or Burrough c. but putteth it not in execution this may be good cause to punish him as aforesaid but not to disfranchise him For Non officit conatus nisi sequatur effectus Non officit affectus nisi sequatur effectus And the reason of this is because when a man is a Frée-man of a City or Burrough he hath Franktenement in his fréedome for his life and together with others in their politique capacity hath inheritance in the lands of the Corporation interest also in their goods and peradventure it may concern his trade and meanes of life and his credit and estimation And therefore the matter which shall be cause of his disfranchisement ought to be some act or déed done and not a bare indeavour or enterprise whereof he may repent before the execution of it and whereupon no prejudice doth ensue Co. ibid. b. 3. 4 Those which have offices of trust and confidence Forfeiture of a Parke cannâ—â— be without some overt act shall not forfeit them by bare endeavours or intentions of doing acts although they declare them by expresse words except the Act it selfe be put in execution As if the kéeper of a Park shall say I will kill all the Game within my custodie or I will cut downe so many trees within the Park c. but in the mean time kills none of the Game nor fells any of the trées this is no forfeiture c. Co. ibid. b. 4. 5 If a Bishop Arch-deacon Parson c. cut downe all the trées Deprivation cannot be without soâ—e overt act c. this is a good cause of deprivation and with this accords 2 H. 4. 3. So if a Prior alien the land which he hath in jure domus suae this is a
As a Villain is disabled against his Lord but not as to any other Co. lib. 8. 45. Whittinghams case 18 If a Bastard be seised of lands in fée and make feoffment thereof Bastard Feoffment Livery and after die without issue In this case if livery were made by the Bastard himselfe in person and so the feoffment executed by himselfe it shall stand good but if livery were made by attorney the lands shall escheat c. Co. lib. 8. 145. Davenports case 19 A. hath a Rectory unto which a Vicarage is appendant Grant of the next avoydance for certain yeares yet in being and grants the next avoydance of the Vicarage to B. and after surrenders the Rectory to him in reversion In this case albeit as to all strangers the estate of the Rectory is determined by the surrender yet as to the Grantée of the next avoidance of the Vicarage it hath continuance and if the avoidance happen within the terme the Grantée shall present c. So also if the Lessée for yeares grant a rent Surrender after grant of a rent and then surrender yet for the benefit of the Grantée the terme hath continuance albeit in rei veritate it is determined â—â—owrie â—uo Warâ—â—nto 20 In Avowrie Co. l. 9. 29 b. 1. In the case of the Abbot of Strata Mercella Co. l. 11. 50. a 2 Richard Liffords case it is not necessary to shew to the Plaintiff by what title such a Franchise is claimed but when a Quo Warranto is brought by the King the Lord of the liberty ought to shew his title â—xception of â—rees 21 If Lands be demised to one for life exceptis quercubus ulmis fraxinis adhunc crescend ultra crescentiam 21 annorum c. The Lessor may sell the great Timber so excepted and then fictione juris as to the Lessée the Trees are divided from the franktenement but as to all others they are parcel of the inheritance of the Lessor â—everance of â—rees 22 If Tenant in Tail sells the Trees to another Co. ibid. that is a Chattel in the vendee and his Executors shall have them and in such case fictione juris they are severed from the land but if Tenant in Tail die before actual severance as to the issue in Tail they are parcel of his Inheritance and shall go with it neither may the Vendee then take them and yet as to the Tenant in Tail himself they were severed for a time â—annor â—anted exâ—â—pt an acre 23 A man makes a Lease of a Mannor 1. 2. P. M. 104. Finch 18. except an Acre this Acre is no part of the Mannor as to the Lessor but as to him that hath right to demand the Mannor by an eygne title it remaineth parcel and therefore he shall make no foreprise thereof in his Writ 52 Relation is of great force in Law â—ncestor and â—eir and the â—estator and â—xecutor Corâ—â—laiiva 1 If a man make a Lease for life to one Co. Instit pars 1. 54. b. 4. and 319. b. 1. the remainder to his Executors for 21 years the term for years shall vest in him for even as Ancestors and heirs are Correlativa as to inheritance as if an estate for life be made to A. the remainder to B. in tail the remainder to the right heires of A. the Fée vesteth in A. as if it had béen limited to him and his heires even so are the Testator and the Executors Correlativa as to any Chattel And therefore if a Lease for life be made to the Testator the Remainder to his Executors for years the Chattel shall vest in the Lessée himself as well as if it had béen limited to him and his Executors â—rank-marâ—age 2 A. Enfeoffes B. upon Condition Co. ibid. 219. b. 3. that B. shall make an estate in Frank-marriage to C. with one such as is the daughter of the Feoffor In this Case B. cannot make an estate in Frank-marriage because the estate must move from the Feoffée and there is not betwixt the Feoffée and the Daughter of the Feoffor the néer relation of Blood which is required betwixt the Donor and the feme Donée in Frank-marriage for here the Daughter is not at all of the blood of the Feoffée â—rotection â—nd Subjectiâ—â— relata from â—e birth 3 In matters of state Subjectio and Protectio are Relatives Co. l. 7. 4. b. 3. Calvins case and immediately upon the birth of a subject that relation begins for ligeance doth not begin by the oath in a Leet but comes into the world with a true subject and he oweth it unto his Sovereign by birth-right so also is the Soveraign bound from that very time to protect his subject And therefore it is truly said that Protectio trahit subjectionem Subjectio protectionem And this is the reason Co. ibid. 9. b. 1 that ligeance cannot be local or confined within the bounds of England onely for wheresoever the subject is there likewise is to be found the foresaid Relation And therefore Qui abjurat regnum amittit regnum sed non regem amittit patriam sed non Patrem patriae for notwithstanding the abjuration he oweth the King his ligeance and he also remaineth within the Kings protection because the King if he please may pardon and restore him to his Country again Co. l. 7. 30. 4. 1. Discontinance of Proces â—â—mmons and â—â—summons â—â—ta 4 For Continuance of Proces upon demise of the King there shall never be Resummons or Reattachment but where there was at first Summons and Attachment for these are Relatives and answer in relation one to the other Co. l. 8. 85. b. 8. Sir Rich. Pexhals case 5 If A. devise to B. 10. l per annum to be paid quarterly Office and the Fee reâ—â—â— and that B. shall keep his Courts c. A. hath an estate for life in this annuity for officium and feodum are Relatives and Concomitantia and he shall have the like estate in the Fée that he hath in the office Co. l. 10. 104. b. 2. Alfrid in Denbawds case 6 At the time of granting the Tales the principal Array must stand Quales and Tales relâ—â— for Tales are words of similitude and have reference to a resemblance which at that time ought to be in esse and therefore if the Array be quashed or all the Polls challenged and tried out no Tales shall be awarded for at that time they were not Quales but in that Case a new Venire facias shall be awarded Howbeit if at the time of granting the Tales the principal pannel did stand and after is quashed as aforesaid yet the Tales shall stand for it sufficeth that they were Quales at the time of granting the Tales and this appears in 34 H. 6. Tit. Enquest 30. Co. l. 10. 116. b. 4. Rob. Pilfolds case 7 This word Damna is taken
2. 4. Sir Ed. dw Althams case and releaseth to the Reversioner omnes actiones c. sectas querelas Demand quaecunque nec non totam dotem suam ac titulum ac actionem dotis sibi contingent c. de aliquibus terris in Wethersfield c. this is onely a Release of her Dower in Wethersfield and not in Gosfield â—â—peachment Wast 6 If a man demise Land for life absque impetitione vasti Co. l. 11. 82. b. 3. Lewis Bowles case the Lessée may cut down the Timber-trees and convert them to his own use but if it be absque impetitione vasti per aliquod breve de vasto In that case the Action onely shall be discharged and not the property in the Trees so that the Lessor after they are felled may seise them c. Co. l. 3. 83. a. 4 Twines case 7 No purchaser shall avoid a precedent conveyance made by fraud and covin What is a good consideration within the Statute of 13 Eliz. 5. but he that is a purchaser for money or other valuable consideration For albeit in the preamble of the Statute of 13 El. 5. it is said For money or other good consideration and likewise in the bodie of the Act For money or other good consideration Yet these words good consideration are to be understood onely of valuable consideration and this appears well by the clause which concerns them that have power of revocation for there it is said For money or other good consideration paid or given and this word paid is to be referred to money and given is to be referred to good consideration so the sense is For money paid or other good consideration given which words exclude all considerations of nature bloud or the like and are to be understood of valuable consideration which may be given and therefore he that makes the purchase of the land for valuable consideration is the onely purchaser within that Statute And this last clause doth well expound these words other good consideration mentioned before in the preamble and bodie of that Act. 54 No man can do an act to himself Co. Inst pars 1. 38. b. 4. 39 a. 4. 1 A Feme Guardian in Soccage shall not endow her selfe De la plus beale without judgement Feme Doweâ— but after judgement she may as Littleton saith § 49. for then it is the act of the Law and not simply hers Co. ib. 48. b. 1. 2 If A. by Déed give lands to B. to have and to hold after the death of A. to B. and his heirs this is a void déed Grant in fâ—turo void because he cannot reserve to himselfe a particular estate and construction must be made upon the whole déed Littl. §. 168. Co. ib. 112. a. 3 A man cannot make any grant of lands Baron canâ—â— grant to feâ—â—â— c. to his wife during the Coverture because they are but one person in Law and a man cannot do an act to himselfe c. Littl. §. 212. Co. ib. 141. a. 4 A man cannot be judge in his owne cause No distresse iâ—repleviable and therefore if a man will prescribe that if any Cattle he Damage fesant upon the Demesnes of his Mannor he may detaine them untill he be satisfied for the damage at his own will and pleasure this custome is repugnant to reason and ought not to be allowed by the Iudges For Malus usus abolendus est quia in consuetudinibus non diuturnitas temporis sed soliditas rationis est confideranda Co. ib. 141. a. 2. Finch 19. 5 A fine levied before the Bailiffs of Salop was reversed A Fine void because one of the Bailiffs was party to the fine Quia nemo debet esse judex in propria causa Nemo potest esse judex c. Hillar 4. H. 4. Coram Rege Salop. Littl. §. 479 480. Co. ib. 280. a. 1. and 307. a. 4. Littl. §. 543 544. 6 If there be Lord and Tenant Extinguishment of rent c. and the Lord releaseth to the Tenant his Seigniory this must of necessity enure by way of extinguishment For the Tenant cannot have service to be taken of himselfe neither yet can one and the same man be both Lord and Tenant So also if a Rent-charge be granted out of land and the Grantée releaseth or granteth the rent to the Terre-tenant in this case the rent is extinct for a man cannot have land and also rent issuing out of the same land neither yet can he pay the rent to himselfe There is the same reason of Common of Pasture released to the Tenant of the land for that also works an extinguishment because a man cannot have Land and a Common of Pasture issuing out of the same land c. Co. ib. 280. a. 3. 7 If there be Lord and Tenant by Fealty and Rent Increasing extinguishment the Lord granteth the Seigniory for yeares and the Tenant attorneth the Lord releaseth his Seigniory to the Tenant for years and to the Tenant of the land generally the whole Seigniory is extinct and the estate of the Lessée also but if the release had béen to them and their heirs then the Lessée had had the inheritance of the one moity and the other moity had béen extinct And the reason of this diversity is because when the release is made generally it cannot enure to the Lessée longer than for life because it enureth by way of enlargement and being made to the Tenant of the land it enureth by way of Extinguishment because he cannot do service to himselfe and then there cannot remaine in the Seigniory a particular estate for life But when the release is made to them and their heirs each one takes a moity the one by way of encreasing of the estate and the other by extinguishment â—cceptance â—ttornment 8 If there be Lord and Tenant Littl. §. 558. Co. ib. 312. b. and the Tenant lets the Tenements to a Feme for term of her life the remainder over in fée the Feme takes Baron and after the Lord grants the services c. to the Baron and his heirs In this case there can be no attornment by parol c. because the Baron that ought to attorn cannot attorn to himselfe but his acceptance of the grant of the Seigniory amounts to an Attornment in Law The like 9 If the Lord grant his Seigniory to the Tenant of the land and to a stranger the Tenant cannot properly and formally attorn to himself Co. ib. 313. a. 1. but his acceptance of the grant is a good attornment in Law to extinguish the one moity and to vest the other moity in the stranger 10 If there be Lord and Tenant and the Tenant take Feme Littl. §. 559. Co. Inst pars 1. 313. a. and after the Lord grant the services to the Feme and her heirs Acceptance Attornment Here can be no
hath his Clergy the accessory cannot be arraigned For the Maxime of Law is Ubi factum nullum ibi forcia nulla ubi non est principalis non potest esse accessarius Then before there appears to be a principal one cannot be charged as accessory but none can be said to be principal before he be so proved and adjudged by Law and that ought to be by judgement upon verdict or confession or by outlawry for it sufficeth not that in truth there is a principal unlesse it appeare so by judgement of Law And this is the reason that when the principal is pardoned or takes his Clergy before judgement that then the accessory shall never be arraigned because it appeares not by judgement of Law that he was principal and the acceptance of the pardon or prayer of the Clergy may be an argument but can be no judgement in Law that he is guilty Howbeit if the principal after attainder be pardoned or hath his Clergy allowed there the accessory shall be arraigned because it then appears judicially that there was then a Principal 28 29. 34 35. Land tree severed 20 When a man makes a lease for life or years Co. l. 4. 64. b. 2. in Herlakendens case the Lessée hath but a special interest or property in the trées being great timber as accessories annexed to the land so long as they are annexed unto it But if the Lessée or any other sever them from the land the property and interest of the Lessée is thereby determined and the Lessor may take them as accessory things which were parcel of his Inheritance and in which the interest of the Lessée is determined c. The like 21 If I let my land for life and after grant the trées Co. ib. 62. b. 4. and after that the Lessée dies yet the Grantée cannot take them as it was holden per toram Curiam in 21 H. 6. 46. d. because at the time of the Grant the Lessée had a property in them as accessories annexed to the land c. Vide Max. 25. The like 22 If trées being great timber be blown down by the winde Co. ib. 63. b. 1. the Lessor shall have them for they were parcel of his Inheritance and not the Tenant for life or years But if they be dotards without any great timber in them the Tenant for life or years shall have them c. Superstitious uses draw good uses 23 When certain summes are limited to superstitious uses Co. l. 4. 115. a. 2. in Adams Lamberts case and one use is separated and divided from the other there the finding of one of them onely shall not give all the land to the King by the Stat. of 1 E. 6. cap. 14. but onely the sum appointed to the superstitious use which was employed within five years before the making of that Statute but if one of the uses depend upon the other there the finding of the principal or any part thereof shall give all the land to the King As if land be given to the intent that an Obit shall be found in such a Chappel and that upon the Obit 10 s. shall be distributed and employed to the Priest and 6 s. 8 d. to divers poor persons that shall be present at it and the residue of the profits to the reparations of the Chappel In this case if the Obit be maintained in any part within the five years although the 6 s. 8 d. be not employed to the poor men nor any thing at all upon the reparations of the Chappel within the five years Yet all the land shall be given to the King by the said Statute because all the uses depend upon the first 24 In suits in the Star Chamber before the repeal of that Court albeit the suit was for the King Co. lib. 5. 51. Halls case Upon censure or sentēce the King cannot pardon the damages or costs before censure or sentence contr◠and the offence such as the King might pardon yet when the censure was once given and damages given to the Plaintiff then the Plaintiff had particular interest in them by the censure which the King would not pardon But if the pardon had béene obtained before the censure there the pardon had discharged all for then the Court could not have procéeded to any censure of the Principal and by consequent neither of damages which are but accessories There is the same law of a pardon before sentence in suits depending betwixt party and party in the Court Christian for defamation casting violent hands upon a Clerk or the like for these being suits pro salute animae vel reformatione morum are in truth suits onely for the King although prosecuted by the party And therefore if in such a suit the Plaintiff hath expended any costs and the King before sentence pardons the Defendant in that case the costs are lost causa qua suprà It is otherwise if he be not pardoned till after sentence for then costs being thereby given to the Plaintiff he hath a particular interest in them which the Kings pardon cannot frustrate c. Co. l. 5. 96. b. 3. in Goodales case being adjudged in Randals case 23 24 Eliz. in the Court of Wards 25 A. seised in fée of certain lands A condition accessory to the estate by déed indented and enrolled according to the Statute covenants with B. That if B. pay unto A. his Heirs or Assignes 10 l. upon such a day at such a place that then A. and his heirs will stand seised of the said lands to the use of B. and his heirs A. having issue a son makes his Will in writing and makes C. his Executor and withal deviseth that C. shall have the land during the minority of his son and then dies his son within age In this case the question was to whom after the death of A. the Tenant ought to be paid and it was resolved that it ought to follow the estate of the land as an accessory unto it and shall not be paid unto C. either as Termor or Executor because C. could not be such an Assignée as is meant by the words of the Covenant having by the devise onely a particular interest in the land Neither yet if A. had granted the land for life or years could any such Lessee have béen Assignée in that case because notwithstanding such grant the reversion still remained in A. and the possibility of having the land again as in his former estate in case the condition were not performed and therefore the payment thereof ought to be made to his son and heir or unto the Assignée of the Covenantors whole estate as if the Covenantor had made an absolute feoffment in fée or else a gift in taile or lease for life with the remainder over in fée then the Feoffée Donée in tail or Lessée for life might be Assignées to whom the Condition ought to
not titheable c. cannot be put in execution upon a recognisance statute c. because the office it selfe being an office of trust cannot 26. El. Molins Finch 23. 4 Tithe is not payable of Oaks usually topped and lopped though it be every seven or eight years for the branches are of the nature of the principal viz. the Oake it selfe for which no tithe is to be paid Co. Inst pars 1. 13. a. 1. 5 A man seised as heire on the part of his Mother The effect ensues the cause and the recompence the losse maketh a feoffment in fée to the use of him his heirs Here the use being a thing in trust and confidence shall ensue the nature of the land and shall descend to the heire on the part of the Mother So likewise if a man hath a Seigniory as heire of the part of his Mother and the tenancy doth escheat it shall go to the heir of the part of the Mother Also if the heir of the Mothers part of land whereunto a warranty is annexed be impleaded and vouch and thereupon judgement is given against him and also for him to recover in value and dieth before execution Here the heire of the Mothers part shall sue execution to have in value against the Vouchée for the effect ought to pursue the cause and the recompence shall ensue the losse Co. ib. 42. a. 4. 6 A man may have an estate for term of life determinable at will An estate for life deterâ—â—â—able at will As if the King doth grant an office to one at will and also grants a rent to him for the exercise of his office for the term of his life this is determinable upon the determination of the office Co. ib. 53. a. 3. 7 If Glasse-windows though glased by the Tenant himself be broken down or carried away it is waste for the glasse is part of the house Waste And so it is of wainscot benches doors windows fornaces and the like annexed or fixed to the house either by him in the reversion or the Tenant Co. ib. 122. a. 1 8 Nothing can be properly appendant or appertenant to any thing Advowson appendent 〈◊〉 Demesnes unlesse the principal or superiour thing be of perpetual subsistance and continuance For example an Advowson that is said to be appendant to a Mannor is in rei veritate appendant to the Demesnes of the Mannor which are of perpetual subsistance and continuance and not to resists or services which are subject to extinguishment and destruction Co. Inst pars 1. 124. a. 4. 9 If an Executor hath a Villein for years A perquiâ—â—â— shall accrâ—â— the Executâ— Termor 〈◊〉 and the Villein purchaseth lands in fée the Executor enters In this case the Executor shall have the whole fée-simple of the lands Howbeit because he had the Villein en auter droit as Executor to the use of the dead it shall be assets in his hands as the Villein is And therefore note a diversity betwéen the quantity of the estate and the quality of it for in this and the lik cases the Law respecteth not the quantity of the estate for not onely Tenant in taile and Tenant for life of a Villein shall have the perquisite of the Villein in fée but Tenant for years and Tenant at will also shall have it in fée but it principally respecteth the quality of the estate For in what right the Executor hath the Villein in the same right shall he have the perquisite So it is also in the case of a Bishop that hath a Villein in right of his Church Also if a man hath a Villein in right of his wife he shall have the perquisite also in her right But if the purchase be after issue had then the Baron shall have the perquisite to him and his heirs because by the issue he is entitled to be Tenant by the Courtesie in his own right c. Distresse for owelty of partition 10 Littleton saith § 219. Co. ib. 144. b. 4. that for a Rent-charge the Grantée hath his election either to bring his writ of Annuity or to distrain c. Howbeit of a rent granted for owelty of partition a writ of Annuity doth not lie because it is of the nature of the land descended and therefore for that the Grantée shall onely distrain c. Assise redisseisin 11 If a man recover land in an Assise of Novel disseisin Co. ib. 154. b. 3. whereunto there is a Common appendant or appertenant and after is re-disseised of the Common he shall have a re-disseisin of the Common for it was tacitely recovered in the Assise Coparcenary of rent for owelty c. 12 If there be thrée Coparceners and they make partition Co. ib. 169 b. 2. and one of them grant 20 s. per annum out of her part to her two sisters and their heirs for owelty of partition Here the Grantées are not Ioyntenants of this rent but the rent is in nature of Coparcenary and after the death of the one Grantée the moity of the rent shall descend to her issue in course of coparcenary and shall not survive to the other for that the rent doth come in recompence of the land and therefore shall ensue the nature thereof And if the grant had béen made to them two of a rent of 20 s. viz. to the one ten shillings and to the other ten shillings yet shall they have the rent in course of coparcenary and joyne in action for the same Coparcenary of rent 13 If two Coparceners by déed indented alien both their parts to another in fée Co. ib. 169. b. 4. rendring to them two and their heirs a rent out of the land they are not Ioyntenants of this rent but they shall have the rent in course of coparcenary because their right in the land out of which the rent is reserved was in coparcenary Joyntenancy for life and several Inheritances 14 If land be given to two men and the heirs of their two bodies Co. ib. 183. b. 4. they have joynt estates during their lives and afterwards several Inheritances and therefore if one of them have issue and die the other shall have all the land during his life by right of Survivor but after his death that issue shall enjoy his fathers part and if that issue die without issue the Donor shall enter into that moity and not the issue of him that survived For in as much as originally the inheritance was several the reversion is also several And therefore upon the several determination of the estate in tail the Donor may enter for as upon one joint and intire gift or lease there is one joint and intire reversion so upon several gifts or leases there be several reversions c. Rent reserved enures to both the Joyntenants 15 If two Ioyntenants make a lease for life Co. ib. 192 a. 3.
this Case the mesnaltie is not suspended during the life of the Mesne by force of that remainder in taile for a remainder in taile or for life expectant upon an estate for life or in taile shall never suspend a mesnaltie Seigniory Rent c. because albeit the remainder vests presently yet that cannot suspend the present Frank-tenement of the Rent during the life of the first Tenant for life who is indeed the true Tenant to the Lord or to the reversioner upon whom avowry shall be made c. and as a Signiory Rent c. cannot be suspended in part and in esse for part in respect of the Land out of which it is issuing so neither can a Signiory Rent c. be suspended in remainder and yet be in esse for a particular Estate in possession for then necessarily there must insue fractions of Estates and particular Estates shall be created without Donors or Lessors against the Rules and Maximes of the Law c. It is otherwise if the mesne grant his mesnaltie to one for life or in taile the remainder to the Tenant peravaile in Fee for in that case the mesnalty is totally extinct because there the Tenant peravaile hath as high an Estate in the inheritance of the Mesnaltie as he hath in the Tenancie neither is there in that case any possibilitie of reviving the Mesnaltie and here also the mesnaltie is not extinct for the Inheritance and in esse for the particular Estate for life or in taile in possession but the mesnaltie by the remainder in Fée is extinct in all for otherwise this absurdity would follow that there would be a Fée-simple of the Tenancie peravaile and also a Fée-simple of Signiory perament and but an Estate for life or in taile onely of the mesnaltie and so a Tenancie in Fée-simple shall be onely holden of a mesnaltie for life or in taile and a Signiorie in Fee shall be issuing out of a mesnaltie for life or in taile onely which is impossible and can by no meanes be c. Vide 3 H. 6. 1. 15 E. 4. 12. Co. l. 10. 128. a. 4. in Cluns Case 64 If Tenant for life make a Lease for yeares rendring Rent at Easter and the Lessée occupie for three quarters of the yeare A term in … and in the last quarter before Easter the Tenant for life dies here shall be no apportionment of Rent for three quarters of the yeare because the time is intire and in respect thereof there shall be no apportionment neither yet was the Rent due before Easter Howbeit in the same case if part of the land had been avicted before Easter and that Feast had incurred in the life of the Lessor there shall be an apportionment of the Rent but not in respect of the time which doth still continue but in regard that part of the Land demised is evicted c. Vide 27 E. 3. 84. b. Co. l. 10. 134. b. 3. in Read and Redmans Case 65 In Actions meerly personal or personal and in some sort mixt with the realtie in which intire things are demanded Actions Intire if there be divers Plaintifes and one be summoned and severed the death of him which is so summoned and severed where the intire thing survives to the other shall not abate the writ as in a writ of ward of the body or the like c. Co. lib. 11. 4. a. 2. in Auditor Curles Case 66 The Office of Auditors of the Court of Wards according to Statute of 22 H. 8. cap. 46. cannot be granted in reversion The Office of Auditor of the Court of wardâ— intire because they two make up one Iudge or Iudicial Officer of that Court and as none can give judgement of things in futuro so neither may any be admitted a judge in futuro according to the Rule Officia judicialia non concedantur antequam vacent And besides great inconvenience might insue thereupon for he that is at the time of the grant sufficient to execute it may perhaps when it falls be un-capable and un-sufficient for it And albeit that Office be onely in part judicial and in part ministerial and ministerial Offices may be granted in reversion yet in as much as two persons have both of them but one Office are as one Officer that Office is by the said Act made so intire that it cannot possibly be divided for the King cannot make two Auditors of the minister inâ— Office and other two to execute the Iudicial part because then there would be four persons which the Act restraines to two neither yet can the King make one Person to have the judicial voice and the other the ministerial Office For then there would be two Officers and two Offices whereas the Act makes but one Officer and then also one of them shall have a distinct Office and voice whereas the Act joynes them together in two Persons And therefore in as much as the ministerial part is so united with the judicial part and that joyntly in two Persons which make up one intire Officer that there is no possibility of severing the one from the other as the judicial part cannot be granted in reversion so neither can the ministerial c. Trespas intire though against many 67 When in Trespass against divers Defendants Co. lib. 11. b. 1. in S John Heydon Case Ibid. 7. a. 2. 43 El. Rotulo 1694. inter Austeâ— Pl. and Willar and Ald. Ded fen they plead non culp or several pleas and the Iury finds for the Plaintife in all the Iurors cannot assesse several damages against the Defendants because it is but one Trespas and also made joynt by the Plaintifs writ and count And albeit one of them be the most malicious and de facto doth the greatest wrong yet all coming forth to do an unlawful Act and being all of one partie the Act of one is the Act of all that are present and of the same partie And therefore in such case if the hand of one of them onely gives a mortall wound whereupon death followes that is murder in all that are present and of the same partie albeit the others intended not to give a wound so mortal as appeares in Mekallies Case in the 9. Report Copercenery â—intiâ—e 68 If two Caperceners Tenants in taile lose by default F. N. B. 155. h albeit the default of the one is not the default of the other yet in respect of the intirenesse of their estate they shall joyne in a Quod ei deforciat c. M. 46. 3 E. An execution â—ntire 69 If an execution be sued of the body and of the land Pl. Co. Rosses Case and afterward the Conusor enfeoffs the Conuse of parcel of the land or surrenders parcel of the land unto him or the fée-simple of parcel thereof descends upon him in all these cases both body and land are discharged for by the execution against the body land
intailed within the said Statute for that they be not issuing out of Tenements nor annexed to nor exercisable within or concerning Lands or Tenements of Fréehold or Inheritance but concerning Chattels and savour nothing of the realty So it is likewise if I by my Déed for me and my Heires grant an Annuity to a man and the Heires of his body because this onely chargeth my Person and concerneth no Land nor laboureth of the Realty Baron Feme Chattels real and personal 5 If a Feme sole be possessed of an Estate for years Co. Inst p. 1. 351. 185. b. 3. 299. b. 4. and 46. b. 2. or by Statute Merchant Statute Staple or Elegit or of a wardship or other chattels real and taketh Baron the Baron is thereof possessed in her right onely And albeit during the Coverture he may dispose of such an Estate by Grant Demise c. or upon Out-lawry Attainder c. may forfeit it or may subject it to be sold by the Sheriff upon an execution for his Debt and in Case he survive the Feme shall then have a clear interest in it yet he cannot dispose of such an Estate by Will and if she survive him no disposition or forfeiture being thereof made as aforesaid she shall have it and not his executors or administrators because these Estates and Interests savour of the realty and therefore the Feme being thereof once possest her interest cannot be by the Inter-marriage so easily removed as if they were Chattels personal There is the same Law also of Chattels real which being of a mixt nature viz. partly in possession and partly in action happen during the Coverture As if the husband be seised of a rent-service charge or seck in the right of his wife the rent becomes due during the Coverture the wife dieth the husband shall have the arrerages but if the wife survive the husband she shall have them and not the executors of the husband So it is also of an Advowson if the Church become void during the Coverture he may have a Quare Impedit in his own name as some hold but his wife shall have it if she survive him and the husband if he survive her Et sic de similibus But as concerning Chattels personal the inter-marriage is an absolute gift of such goods which she hath in possession and in her own right whether the husband survive the wife or no so that he may at his pleasure dispose of them either by act execute in his life or by will and albeit he make no such disposition of them and die living the wife yet his Executors or Administrators shall have them and not the wife c. Howbeit if they be in action as Debts by Obligation c. the husband shall not have them unlesse recovered during the Coverture neither yet shall he have such goods as the wife hath in auter droit as Executrix or Administratrix c Vide R. 55. ex 129. â—enants in â—â—mmon â—hattels 6 If one Tenant in Common of Chattels take any Chattels real Co. ib. 200. a. z which are not of an intire nature from his companion the other may have his remedy to recover them by Action but if one of them take all the personal goods from the other he hath no remedy by Action or otherwise save onely to take them again by Catch-pole Law And so it is also of intire Chattels real as a Ship Horse Hawk or the like but that is in respect of the Intirenesse and inseverablenesse of their nature c. for which sée R. 70. ex 25. â—reehold or â—â—heritance 〈◊〉 reassumed â—e collateral â—â—sfaction 7 It is said in our Books that Accord with satisfaction is a good plea in personal actions where damages onely are to be recovered Co. l. 4. 1. a. 4 in Vernons case but not in real Actions For a right or title to any Estate of Inheritance or Fréehold cannot be barred by acceptance of any collateral satisfaction or recompence As if A. disseise B. tenant for life or in Fée of the Mannor of Dale after A. gives the Mannor of Sale to B. and his Heires in full satisfaction of all his rights and actions which he hath in or for the Mannor of Dale and B. accepts thereof Neverthelesse B. may enter into the Mannor of Dale or recover it in any real action it is otherwise of things in the personalty Dier 2. 8. 6 H. 8. 8 In real Actions to plead Alien Actions that the Plaintiff is an Alien is a good bar because an Alien can have no land within the Realm but such a Plea in personal Actions is no bar because an Alien may bring personal Actions unlesse he be an Alien Enemy Co. l. 6. 7. a. in Ferrers Case 9 Betwixt real and personal Actions there is a diversity Bar in personal actions binde not so in real for in personal Actions as in Debt Account c. the bar is perpetual because in such Cases a man shall not have an Action of a higher nature But in a real Action if the Demandant be barred by judgment upon Verdict Demurrer Confession c. yet he may have an Action of a higher nature and shall try the same right again because it concerns his Frank-tenement and Inheritance So if a man be barred in Assise of Novel disseisin yet upon shewing a descent or other special matter he may have an Assise of Mortdancestor Aiel Besaiel c. Vide infrà 1. 78 14. Litt. §. 146. Co. Inst p. 1. 103. a. 2. 10 An Abbot Prior Bishop Successor of an Abbot c. bouâ—d or other sole Corporation cannot dis-claim or devest any thing of Fée which is vested in their houses or other spiritual Corporations to the prejudice of the Successor Howbeit if an Abbot or Bishop c. acknowledge the Action in a writ of Annuity or in an action of Debt upon an Obligation Statute or Recognisance this shall binde the Successor so as he shall not prevent execution thereupon albeit they were granted and made without the consent of the Covent Chapter c. because these things being in the personalty the recovery thereof cannot be falsified in an higher action Et res judicata pro veritate accipitur Vide suprà M. 1. cap. 4. Co. ib. 125. b. 3 11 In a Plea real against divers tenants Pleas real and personal if one tenant plead in barre to parcel or which extendeth onely to him that pleadeth it and the other pleads a Plea which goeth to the whole viz. to both the tenants and which indéed would make an end of the business if it were tried yet those several Pleas shall have several trials as if a praecipe be brought by one as heir to his father against two and one of them pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardie in the Demandant and it
Earle of Bedfords Ca. yet the Law in many Cases hath consideration of him in respect of the apparent expectation and possibility of his birth for which sée the opinion of Sanders and Browne in Stowells Case for the avoyding of a fine Pl. Co. fol. vide temps E. 1. Tit. Guard 153. 31 E. 1. Tit. briefe 873. for the Guard of such an infant vide 38 E. 3. 7. 41 E. 3. 11 E. 3. Tit. voucher that he shall be vouched in ventresa mere 3 El. Dier 186. An adulterer counsels the Feme to murder the Infant when it should be borne who doth it accordingly in this Case the adulterer is accessory yet at the time of the counsel given the Infant was in ventre sa mere c. Feofment of Cestuy que use good 17 If Cestuy que use after the Stat. of 1 R. 3. and before the Statute of 27 H. 8. had disseised the Disseisor of his feoffées Co. l. 10. 49. in Lampets Case here the use is suspended and depends in possibility to be revived by the entry of the feoffées and yet if he make feoffment in Fée that is good and shall bind in respect that the Law hath consideration of that possibility of the use A possibility â—ay have a â—eing and be â—â—â—feitted 18 H. possessed of an house for 31 yeares deviseth the profits thereof to I. durante viduitate and after deviseth the term to R. and dies Co. l. 10. 52. a. 3. in Lampets Case viz. Tr. 28 El. Rot. 1674. Harrington Rudyards Case I. by the assent of the Executor enters and purchaseth the house in Fée of L. who covenants with I. that the house shall be frée from all former bargaines c. And in an Action of Debt upon an Obligation for the breach of covenants the defendant pleads covenants performed the Plaintiffe assignes for breach the devise to I. and afterwards to R. and that after I. entring into that covenant I. had maried O. upon whom R. entred and thereupon the Plaintiffe demurres And the great Question in the Case was whether R. at the time of the making of the covenant having onely a possibility the covenant did extend unto it or no And it was resolved that the covenant did extend to that possibility and that the possibility had being for that purpose and might be forfeited 19 Vide infra M. 105. in all â—ands may be â—tailed â—â—gh given â— persons unâ—aried 20 If tenements be given to a man and to a woman Co. Inst p. 1. 25. b 4. which is not his wife and to the heires male of their two bodies they have an Estate taile albeit they be not maried at that time and so it is if lands be given to a man which hath a Wife and to a woman which hath a husband and to the heirs of their two bodies they have presently an Estate taile for the possibility that they may marry c. â—eare-say 21 Such thing as one hath by credible heare-say by the example of Litt. â— 720 are not be neglected but are worthy of observation Co. ib. 377. b. 4 for the apparent possibility that they may be true 105 And therefore nothing to be void which by possibility may be good 1 Vide supra R. 104. e. 1. Co. Inst p. 1. 25. b. 4. Co. l 50. b. in Lampets Case 2 If Lands be given to two husbands and their wives Lands intailed to more than two good and to the heires of their bodies begotten this is not a void Grant for the uncertainty but they shall take a joynt estate for life and several inheritances viz. the one husband and his wife the one moity and the other husband and wife the other moity So if lands be given to a man and two women and the heires of their bodies begotten they have a joynt estate for life and every of them several inheritance because they cannot have one issue of their bodies neither shall there be by any construction a possibility upon a possibility viz. that he shall marry the one first and then the other So it is also when land is given to two men and one woman and to the heires of their bodies begotten c. Co. ib. 45. b. 3. 3 Regularly in every Lease for yeares the term must have a certaine beginning and a certaine end for so Bracton saith A Lease for yeares good though uncertain when it shall begin Terminus Annorum certus esse debet determinatus And Littleton also hath these words Pur terme de certaine ans Neverthelesse although before the time it should take effect in possession or interest it do depend upon an incertainty viz. upon a possibile contingent before it begin in possession or interest or upon a limitation or condition subsequent yet is it not void for that uncerrainty as if A. seised of lands in fée grant to B. that when B. payes to A. xx shillings that from thenceforth he shall have and occupy the land for 21 yeares and after B. payes the twenty shillings this is a good Lease for 21 yeares from thence-forth notwithstanding that uncertainty because it was at first possible the twenty shillings should be paid and that being paid the Lease had from thence-forth a certaine beginning and therefore was not void but good ab initio c. So if A. leaseth his land to B. for so many yeares as B. hath in the Mannor of Dale and B. hath then a term in the Mannor of Dale for 10 yeares this is a good Lease by A. to B. of the land of A. for 10 yeares for albeit there appear no certainty of yeares in the Lease yet because by reference to a certainty it may be made certaine it sufficeth If the Parson of D. make a Lease of his Glebe for so many yeares as he shall be Parson there this cannot be made certaine by any-meanes for nothing is more uncertaine than the time of death Terminus vitae est incertus licet nihil certius sit morte nihil tamen incertus est hora mortis but if he make a Lease for three yeares and so from thrée yeares to thrée yeares so long as he shall be Parson this is a good lease for 6 years for it is possible he may so long continue Parson there and then it is good for so long viz. first for thrée yeares and then for thrée yeares more but for the residue it is uncertaine If a man maketh a Lease to I. S. for so many yeares as I. N. shall name this is not void for the uncertainty for when I. N. hath named the yeares then is it a good Lease for so many yeares A man maketh a Lease for 21 yeares if I. S. shall so long live Here albeit the end of his Lease depends upon an uncertainty viz. upon the time of the death of I. S. which is uncertaine yet because it is possible at last to know the certaine
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
of their lives and after to the use of their next issue male in taile Co. ib. 28. a. 3. and after to the use of the Baron and Feme and the heires of their two bodies having no issue at that time in this Case the Baron and Feme are Tenants in special taile executed and after they have a son they are become Tenants for life the remainder to the son in tail the remainder to them in special taile and here albeit living the son they are but bare Tenants for life yet if the Baron die having no other issue and then the son die without issue the Feme shall be restored to the priviledges belonging to tenant in tail after possibility of issue extinct as appeares in Lewes Bowles Case Co. l. 11. fol. 80. for as there is said the Estate of the Feme in such Case is created by the act of God and not by the limitation of the party ex dispositione legis and not ex provisione hominis but if land be given to Baron and Feme and the heirs of their two bodies and after they are divorced causa praecontractus consanguinitatis or affinitatis their Estate of inheritance is turned to a joint Estate for life and albeit they had once an inheritance in them yet for that the Estate is altered by their own Act and not by the Act of God after the death of either of them without issue the other shall not be Tenant in tail after possibility of issue extinct 〈◊〉 not enâ—ed 5 If a man take an alien to wife and after the husband alien the land Co. ib. 33. a. 4. and then she is made denizen the husband dieth she shall not be endowed it is otherwise if she be naturalized by act of Parliament â—il death 6 The Feme shall not not be endowed after the Civil death of the Baron entring into Religion c. being the act of the party Co. ib. 33. b. 2. but after the natural death which is the Act of God â—t-tenant â—gnes doâ—â— 7 If two or more he joint-tenants of lands Co. ib. 34. b. 4. one of them may assigne dower to the wife of a third part in certainty and this shall bind his companions because they were compellable to do the same by law but if one of them assigne a rent out of the land to the wife this shall not bind his companions because he was not compellable by the law thereunto 8 There is a diversity betwéen particular Estates made by the Terre-tenant Co. ib. 57. b. 3. and paâ—â—â—cular Estates created by Act in Law Trespass before entry contrà For if Tenant pour autre 〈◊〉 continueth in possession after the decease of Cesty que vie or Tenant for yeares holdeth over his terme the Lessor cannot have an Action of Trespas before entry but if a Guardian after the full age of the heire continueth in possession he is no Tenant at sufferance but an Abator and against him an Assise of Mortancestor doth lie before entry Co. ib. 59. b 4. Armestrongs Case certified into the Chancery by Popham and others 39 Eliz. 9 Of fines due to the Lord by the Copi-holder Copi-hold Fines some by the change or alteration of the Lord and some by the change or alteration of the Tenant the change of the Lord ought to be by Act of God otherwise no fine can be due but by the change of the Tenant either by the Act of God or of the party a fine may be due For if the Lord do alleadge a Custome within his Mannor to have a fine of every of his Copi-holders of the said Mannor at the alteration or change of the Lord of the Mannor be it by alienation demise death or otherwise this is a Custome against the Law as to the alteration or change of the Lord by the act of the party for by that meanes the Copi-holders may be oppressed by multitude of fines by the Act of the Lord but when the change groweth by the Act of God there the Custome is good as by the death of the Lord but upon the Change or alteration of the Tenant a fine is due to the Lord. Escuage Co. ib. 72. b. 1. 10 If the Tenant goeth with the King in performance of his Knight-service and dieth in Exercitu in the Host or Army he is excused by Law and no escuage shall in that Case be demanded Homage Ancestral Co. ib. 102. a. 4 11 In Case of Homage Ancestral which is a special warranty in Law by the authority of Littl. the lands generally that the Lord hath at the time of the voucher shall be lyable to the execution in value whether he hath them by discent or purchase but in Case of an expresse warranty the heire shall be onely charged for such lands as he hath by discent from the same Ancestor who created the warranty and so note what priviledge this expresse warranty created by operation of Law hath more then the expresse warranty for firmior potentior est operatio Legis quam dispositio hominis Co. ib. 127. a. 1 in Beechers Case Co. l. 8. 60. b. 12 If a writ do a abate by the Act of the Demandant or Plaintiffe Amerâ—iaâ—â— or for matter of form the Demandant or Plaintiffe shall be amercied but if abate by the Act of God as by the death of one where there is two or the like there shall be no amerciament Co. ib. 148. a. 3 Wards Case cited in Co. l. 2. fol. 32. in Heywards Ca. 13 When a rent-charge is extinguished by the grantées purchase of part of the land the grantée shall never have a writ of annuity Rent-chaâ— extinguisheâ— no Annuity because it was by the grant a rent-charge and he hath discharged the land of it by his own Act viz. by purchase of part but if the rent-charge be determined by the Act of God or of the law yet the grantée may have a writ of annuity as if Tenant for another mans life by his déed grant a rent-charge to one for 21 yeares Cesty que vie dieth the rent-charge is determined and yet the grantée may have during the years a writ of annuity for the Arrerages incurred after the death of cesty que vie because the rent-charge did determine by the Act of God and by course of law Actus legis nulli facit injuriam The like law is if the land out of which the rent-charge is granted be recovered by an Eigne title and thereby the rent-charge is voided yet the grantée shall have a writ of annuity for that the rent-charge is avoided by the course of law Co. ib 148. b. 1 Litt. § 222. in Aschoughs ca. vide infrà 48. 14 Littleton saith that a Rent-service may be extinct for part Rent-serâ— suspended contrà and apportioned for the rest but it cannot be suspended in part by the Act of the party and in
but because the Mortgageor dies by the Act of God that shall not dis-able I. S. to pay the Money So also it I. S. had died before the day the Mortgageor might have paid it â—â—ewing of a â—eed to prove â— Condition 34 Regularly a man by Plea shall not defeat an Estate of Frank-tenement by force of a Condition Littl. § 365. Co. ib. 225. b. 4. unlesse he produce the proof of the Condition in writing c. yet if a Guardian in Chivalry in the Right of the heir enter for a Condition broken he shall plead the State upon Condition without shewing of any Déed because his Interest is created by the Law So it is also of a Tenant by Statute Merchant or Staple or Tenant by Elegit Likewise Tenant in Dower shall plead a Condition c. without shewing of the Déed and the Reason of these Cases and the like is for that the Lord doth create these Estates and they come not in by him that was to enter for the Condition broken so as they might provide for the shewing of the Déed but they come into the Land by Authority of Law and therefore the Law will allow them to plead the Condition witheut shewing of it yet the Lord by Escheat albeit his Estate be also created by Law shall not plead a Condition to defeat a Frée-hold without shewing of it but this is because it is conceived the Déed belongs to him neither yet shall a Tenant by the Courtesie plead a Condition made by his Wife In Doctor Leyfields Case in fine Co. l. 10. 94. b. and a re-entry for a Condition broken without shewing the Déed for albeit his Estate is also created by Law yet because the Law presumes that he had the Possession of the Déeds and Evidences belonging to his Wife it will not allow him that Priviledge Vide infra Ru. 56. Co. ib. 264. b. 4. 35 There is a diversity betwéen a Realease in Déed A Release in Deed and in Law and a Release in law for if the Heir of the Disseisor make a lease for life and the Disseisée release his Right to the lessée for his life his Right is gone for ever but if the Dissesée doth disseise the Heir of the Disseisor and make him a lease for life by this Release in law the Right is released but during the life of the lessee for a Release in law shall be expounded more favourably according to the intent and meaning of the parties then a Release in Déed which is the act of the party and shall be taken most strongly against himselfe Co. ib. 266. a. 2 c. 36 Rights are distinguished by thrée kinds Jus proprietatis Rights distinguished Jus possessionis and Jus proprietatis possessionis alias Jus duplicatum or droit droit For example if a man be disseised of an acre of land the Dissisée hath Jus proprietatis the Disseisor Jus possessionis and if the Dissiesée release to the Disseisor then hath he Jus proprietatis possessionis Now regularly it holdeth true Right extinct contra that when a naked right to land is released to one that hath Jus possessionis and another by a mean Title recover the land from him the Right of Possession shall draw the naked Right with it and shall not leave a Right in him to whom the Release is made So the Heir of the Disseisor being in by Discent A. doth disseise him and the Disseisée releaseth to A. now hath the méer Right of the land but if the Heir of the Disseisor enter into the land and regaine the Possession that shall draw with it A the méer Right to the land and shall not regaine the Possession onely and leave the méer Right in A. but by the continuance of the Possession the méer Right is therewith vested in the Heir of the Disseisor And the Reason of this is because the Right is conveyed by Release which is the act of Party but when the méer Right is subsequent and transferred by act in law there albeit the Possession be re-continued yet that shall not draw the naked Right with it but shall leave it in him As if the Heir of the Disseisor be disseised and the Dissesor enfeoff the Heir apparent of the Disseisée being of full age then the Disseisée dieth the naked right discends to his Heir and the Heir of the Disseisor recovers the land against him yet doth he leave the naked right in the heir of the Disseisée So if the Discontinuée of Tenant in Tail enfeoff the issue in Tail of full age and Tenant in Tail die and then the Discontinuée recovers the Land against him yet he leaveth the naked right in the issue â—â—e of 〈◊〉 37 If the heire of the Disseisor be disseised Co. ib. 266. a and the disseisée release to the Disseisor upon Condition if the Condition be broken it shall revest the naked right So likewise if the Disseisée had entred upon the heire of the Disseisor and made a feofment in fée upon Condition if he entred for the Condition broken and the heire of the Disseisor entred upon him the naked right should be left in the Disseisée but in these Cases if the heire of the Disseisor had entred before the Condition broken then the right of the Disseisée had béen gone of ever because the right in these cases was conveyed by release and feofment which are Acts of the party it had béen otherwise if they had béen transferred by Acts of Law as in the Cases put before in the example last afore-going â—â—â—se of â—dition 38 There is a diversity betwéen a Right which is favoured in law Co. ib. 274. b. 1. Litt. § 467. and a Condition created by the party which is odious in Law for that it defeateth Estates and therefore a right may be released upon Condition and if the Condition be broken the Right shall revest but if a Condition be released upon Condition the release is good but the Condition void â—eleas of aâ—â—â—s 39 In a mixt Action a release of all Actions real is a good barre Co. ib. 285. a. 2. Litt. §. 492. and so is a release of all Actions personal for a man by his owne act cannot alter the nature of his action and therefore if the Lessée for life or Lessée for yeares do waste now is an Action of wast given to the Lessor wherein he shall recover two things viz. the place wasted and treble damages and in this Case if the Lessor release all Actions Real he shall not have an action of waste in the personalty onely Also if he release all Actions Personal he shall not have an action of waste in the realty onely and so it is also where the Lessée doth waste and after surrendreth to the Lessor his Estate and the Lessor accept thereof here also the Lessor shall not have an action of wast
if A. seised of a Mannor part in Demesne part in Service demiseth bargaines and sells the Mannor to W. here it is in the Election of W. to take it either by Demise at the Common Law or by Bargaine and Sale according to the Statute Co. l. 3. 24. b. 2. in Walkers Case 13 It was said that if the Lessée assign over his term Lessee Assignment Rent Avowry the Lessor may charge the Lessée or his Assignee at his Election but if the Lessor accept the Rent of the Assignée he hath determined his Election and shall not have an action against the Lessée afterwards for Rent due after the Assignment no more then if the Lord once accept the Rent of the feoffée he shall avow upon the feoffor Co. l. 3. 26. b. in Butler Barkers Case 14 Vpon this Rule likewise it is that the Law doth allow Agréement or Disagréement to an interest offered to the party Lord. Tenant Agreement Disagreement that is to have it So if there be Lord and Tenant and the Tenant by Déed enfeoff the Lord and a stranger make livery to the stranger in name of both in this case if the Lord onely by Parol disagrée to the Estate it is nothing worth for a Frank-tenement shall not be so lightly devested by naked Parol in pais but on the other side if the Lord enter into the Land generally and take the profits this act shall amount to an Agréement to the Feoffment Howbeit if he enter into the Land and distraine for his Seigniory this act shall amount to a Disagreement of the Feoffment and shall devest the Frank-tenement out of him and with this accords 10 E. 4. 12. by all the Justices 〈◊〉 and 〈◊〉 â—â—â—ement â—â—greemenâ— 15 If Lands be given to Baron and Feme in tail Ibid. b. 3. and after the Statute of 32 H. 8. 36. the Baron alien the Land to the use of himself and his heires and after devise it to his Wife for life and dies here the Feme inter-claiming by parol the Estate for life this is a good Disagréement to the Estate of inheritance and a good Agréement to the Estate for life and with this accords 18 El. 351. b. Dyer for the Law gives her power to take which of them she will â—â—rlon reâ—â—d 16 If A. make an Obligation to B. and deliver it to C. to the use of B. this is the Déed of A. presently but when C. offers it to B Ibid. b. 4. here B. may refuse it in pais and thereby the Obligation shall lose his force and with this accords H. 1. El. Rot. 442. in Tawes Case reported by Serjeant Benlowes and by Dyer 167. But in this Case it séemes upon an action brought for it he cannot plead non est factum because it was once his Déed Gift of â—ods refuseâ— There is the same Law also of a Gift of Goods and Chattels if the Déed be delivered to the use of the Donée the Goods and Chattlels are in the Donée presently before notice or agréement but the Donée may make refusal in pais and thereby the property and interest shall be devested and such Disagréement néed not be in any Court of Record â—â—covery â—â—mpence 17 A Common Recovery is not restrained by the Statute de donis but it shall barre the issue in tail because of the intended recompence Co. l. 3. 60. a. 4. in Lincoln Colledg Case wherewith the Tenant in tail séemes to be content the Law thereupon presuming that so to suffer the Recovery tends rather to his benefit then prejudice â—â—â—â—ture â—â—â—s 18 B. enfeoffes another to the use of himself for life Co. l. 4. 3. a. 1. in Vernous Case the remainder to his Wife for life for her joynture upon Condition to perform his Will and then dies the Wife enters and agrées to it and after brings her Writ of Dower but her acceptance barres her Writ of Dower for albeit her Dower was an absolute Estate for life and this a Conditional Estate yet it being an Estate for life and she accepting thereof the Law presumes she estéemed it a greater advantage than to take her Dower it being in her power after the death of her Husband to take or waive it So if a man make a Feoffment in fée to the use of himself for life and after to the use of his Wife durante viduitate sua for her joynture if after the death of her husband she accept thereof it shall barre her of her Dowâ—r 〈◊〉 â—â—â—ance 19 Before the Statute of 21 H. 8. 13. if one had a Benefice with Cure and accepted another Benefice with Cure Co. l. 4. 75. b. 2. in Hollands Case the first Benefice was void Howbeit this was not an avoidance by the Common Law but by the constitution of the Pope of which avoidance the Patron might take notice if he would and might present if he would without any Deprivation c. 〈…〉 at will 20 Feme Tenant for life makes a Lease at will rendring Rent Co. l. 5. 10. a. Hensteads case and after takes Baron and she and her Baron brings an action of Debt for the arrerages after the marriage In this Case the Will is not determined by the inter-marriage for albeit the feme by taking Baron hath submitted her selfe to his Will as her Head yet because it may be prejudicial to the Baron to have the Leaâ—e determine for then he might lose the Rent due at the very next Rent-day after the marriage and it cannot prejudice the feme at all to have it continue and it being in the power of the Baron to make it continue or determine the Law adjudgeth it to continue 〈◊〉 â—â—â—chant â—â—ple 〈…〉 shewed 21 Tenant by Statute Merchant or Staple c. shall not be forced to shew a Déed in Court for the maintainance of their Estate Co. l. 5. 75. a. 2. in Wymarks Case for they come to the Possession of the Land by Processe of Law against the will of him that hath the Déed but it is otherwise of a Lease for life or yeares c. because he comes in by the Lessor and might have taken a Covenant or other security for his peaceable enjoying of the Land to him demised Co. l. 7. 8. a. The Earl of Bedfords Case 22 Tenant in tail leaseth for yeares and dies here Infant the King or other Guardian may avoid it but if after his full age he accepts of the rent the Lease is confirmed to re-continue during the terme Co. l. 8. 98. a. 4. in Baspoles Case 23 In Arbitrament when all matters in Controversie are referred to an Arbitrator to end Arbitrament Award here albeit there are divers matters of in difference betwixt the parties yet if one onely be made known to the Arbitrator he may make an award of that alone for the Arbitrator is in the place of the Iudge and
and was also capable at the time of the gift whereas when the gift was made shee tooke nothing but in expectancy when shee should become heire per forman doni And yet the law permits her to have a Writ in forme aforesaid least otherwise she should have been without remedy Co. ibid. 47. b. 3. 2. The Lord shall not have an action of debt for reliefe or for escuage due unto him because he hath other remedy to recover the same viz. Remedy for releife c. by distresse Howbeit his Executors or Administrators shall have an action of debt for them because they are now become as showers falne from the stock and they have no other remedy Litt. S. 67. Co. ibid. 52. b. 4. 3. If tenements are let to a man for the terme of halfe a yeare or a quarter of a yeare c. in this case if the lessee make waste For waste the lessor shall have against him a Writ of waste and the Writ shall say Quod tenet ad terminum annorum but he shall have a speciall Declaration upon the truth of the matter and the Count shall not abate the Writ and the reason is because he can have no other Writ whereby the wrong done him may be remedied And therefore albeit the Statute of Glocester ca. Co. ibid. 54. b 4. 5. which giveth the action of waste against the lessee for life or yeares which lay not against them at the common Law speaketh of one that holdeth for terme of years in the Plurall number neverthelesse although it be a penall Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall be within the same remedy though it be without the letter of the Law causa qua supra Co. Inst pars 1. 56. a. 1. 4. If Lessee for yeares be disturbed of his way An action for a publick nusance for remedy thereof he shall have his speciall action upon the case but if it be a common way to avoyd multiplicity of suits it ought to be presented and reformed in the Leet or Turne and no particular person shall bring any action for it unlesse he suffer particular damage by the nusance as if he and his Horse fall into a ditch so made in the common way or the like which happeneth not to others Howbeit in the Kings Bench in a case betwixt Westbury and Powell it was adjudged that where the Inhabitants of Southwarke had by custome a watering place for their Cattell which was stopped up by Powell in that case any Inhabitant there might have an action because otherwise they should be without remedy for that such a nusance is not presentable in the Leet or Turne Co. ibid. 111. a. 4. 5. In Cities and Burrows where Tenements were devisable Ex gravi querela granted to Devisees of Lands if the heire of the devisor had entred and had held out the devisee albeit the devisee might have entred as Lit. saith S. 167. Yet besides the Law ordained a Writ for him called Ex gravi querela and this Writ without any particular usage was incident to the custome to devise because otherwise if a discent had been cast before the devisee had entred the devisee had been without remedy there being no other way provided for him to recover his land Litt. S. 179. Co. ibid. 119. a. 3. 6. If a Villain purchase a Signiory rent or other profit out of land Claime of a Reversion c. by the Lord of a Villain or a reversion after an estate for yeares life in taile by Statute Merchant Statute Staple or Elegit and attornement is made unto him according to the grant in such cases the Lord may come upon the land and claime the reversion and in so doing shall not be adjudged a trespasser for he hath no other means to come by the reversion because if he should stay untill the reversion should fall the Villain might alien it to another before his entry and so prevent him of his just title thereunto Also upon grant of an Advowson to a Villain claime must be made immediately at the Church though it be then full of an Incumbent Lit S. 180. for if he stay till an avoydance he may be prevented as aforesaid Vide infr 35. Outlawry no plea in Error to reverse it 7. Regularly an outlawed person cannot sue and if hee do Co ib. 128. a. 4. it is a good plea in disability of his person to say that he is outlawed yet in a Writ of Error to reverse an Outlawry Outlawry in that suit or at any strangers suit shall not disable the Plaintiff because if he in that action should be disabled and were outlawed at severall mens suits he should never reverse any of them Aliens may have actions personall 8. Albeit Aliens though in annuity are excluded from many priviledges that Subjects borne enjoy Co. ib. 129. b. 1. yet such a Alien may maintaine personall actions for an Alien may trade and trafficke buy and sell and therefore of necessity he must be of ability to have personall actions and an Alien that is condemned in an Information shall have a Writ of Error to relieve himselfe Et sic de similibus for otherwise they should be without remedy A Monk canâ— sue c. 9. If a Monk or other spiritual person profest were beaten wounded Co ib. 132. b. 3. or imprisoned he is prohibited to sue as Lit. saith S. 200. because he is a dead person in Law but here the Law gives a remedy for in that case the Abbot and Monke shall joyne in an Action against the wrong doer and if the Writ be Ad damnum ipsius Priores the Writ is good or if it be Ad damnum ipsorum it is good also yet in this case the Abbot or Pryor in his person was not wronged Also if a Monk were by Conspiracy falsely and maliciously indicted of Felony and Robbery and afterwards was lawfully acquitted his Soveraign and he should have joyned in a Writ of Conspiracy and the like There is the same Law also of a Nunne Sanctimonialis mutatis mutandis And if the Law did not provide such a course they might have been injured and left without remedy â— Feme Coâ—â—â— may sue â— be sued 10. A Feme Covert is disabled to sue without her Husband Co ib. 132. b 4. 2 H 4. s 7. a. and yet we read that in somâ— cases a Wife hath had ability to sue and to be sued without her Husband for the Wife of Sir Rob. Belknap one of the Iustices of the Court of Common Pleas who was banished beyond Sea did sue a Writ in her own name without her Husband he being alive whereof one said Ecce modo mirum quod foemine fert breve Regis Non nominando virum conjunctim robore Legis Also E. 3. brought a