if they be distrained to come to them they may have a writ out of the Chancery for their discharge All other clerks also within orders though not beneficed have the like priviledge And the reason of this is to the end they should attend their function Co. l. 11. 70. b. in Madg. Col. case M. 10 H. 6. 8. 3 I. S. brings an action of debt against I. Rector of T. in com B. the defendant saith A Parson ought to be resident that before the day of the writ purchased he dwelt at B. in com N. Et non allocatur for a Parson shall be intended by Law to be alwayes resident upon his benefice for the cure of souls which he hath there and the Parson who hath cure of souls and is a non-resident non est dispensator sed dissipator non speculator sed spiculator And therefore no such thing shall be presumed F. N. Br 175. 4 A Parson to the end he may give his continual attendance upon that sacred function is fréed from all personal charges The like that may hinder him in his calling And therefore he shall not be chosen Bailiffe Réeve Beadle or other officer for land annexed to his Church And all this by the course of the Common Law F. N. Br. 34. l. for the same reason it is that if a Parson have a Parsonage and after take another benefice without a dispensation the first benefice is void and the Patron thereof may present for this avoydance is called a Cession because the taking of the last makes him neglect the first F. N. Br. 175. Br. Dismes 16 5 To the end that Religion may not be neglected Tithes due onely to the Parson of common right but preserved and daily increased the Common Law giveth to the Parson of common right the tenth of all manner of yearely encrease which are called Dismes or Tithes the due payment whereof tendeth much to the continuance and establishment of the true Religion and the due worship of God Co. l. 2. 44. b. The Bishop of Winchesters case And therefore albeit a meere lay man may prescribe in modo decimandi yet he cannot so doe in non decimando because he is but in special cases capable of tithes at the Common Law and therefore without special matter shewed it shall not be intended that he hath any lawful discharge And for this cause in favour of holy Church although it may have lawfull commencement the law will not suffer such prescription in that case nor put it to the trial of lay men who will perhaps rather strain their consciences for their private benefit that give the Church the duties that belong to her Vide infra 186. 11. Co. l. 5. 63. a. 44 E. 3. 19. 6 The Inhabitants of a Town without any custome may make ordinances or by-laws for reparation of the Church By-Lawes and in that case the greater part shall bind all the rest without any Custom The Chamberlain of Londons case Prisot 3 To such Lawes as have warrant in holy Scripture our Law giveth credence contra Co. Inst pars 1 128. b. 1 In the raigne of King Alfred Outlawed persons had capita Lupina and untill a good while after the Conquest no man could have been out-lawed but for felonie and then the out-lawed person was said to have Caput Lupinum because he might be put to death by any man as a Wolfe that hateful beast might and in ancient time the head of either of them being brought to the chiefe place of the County or Franchise where they were killed the partie so killing them was to have a Mark for his paines Howbeit in the beginning of the raigne of E. 3. it was resolved by the Iudges for avoiding of inhumanitie and effusion of Christian bloud that it should not be lawfull for any man but the Sheriffe only and that upon lawfull warrant to put to death any out-lawed person though it were for felonie in pain to suffer death as in case of killing another man One attainted of a Praemunire 2 It was lawfull for any man to put to death a man attainted of a Praemunire because he was also without the Kings protection Co. ibid. 129. b and therefore subject to be destroyed as the Kings enemy but this was taken away by the wisedome of Queen Eliz. and her Parliament 5 El. 1. as a libertie not becoming a Christian Common-wealth Lepers 3 The Law of England for removing of Lepers by the writ de leproso amovendo from the societie of men to some solitarie place is grounded upon the law of God Levit. 13.44 45 46. Numb 5.1 2. Co. ibid. 135. b 4 In Cholmeleys case in the 2 Rep. fol. 51. Co. l. 11. 70. b. in Magdel Colledge case where a reversion expectant upon an estate in taile was granted to one for the life of the tenant in taile A Monkish life condemned it was said that by possibilitie this grant for life may take effect for tenant in taile having no issue may become a Monk and enter into religion and then the grantée may have it during his naturall life but it was there resolved that such superstitious and irreligious profession shall not be presumed in law A Law against Charity void 5 If a Statute be made directly against the Law of God Doct. Stud. l. 1. cap. 6. as if it should be ordained that none should give Almes to any in what necessitie soever he were or the like such Statute ought to be adjudged void 6 Such Canons Constitutions Ordinances Co. l. 5. part 1. 32. b. in the case of the Kings Ecclesiastical Law and Synodals provincial Ecclesiastical Laws as have béen allowed by general consent and custome within the Realme and are not contrariant or repugnant to the Lawes Statutes and Customes of the Realme nor to the damage or hurt of the Kings Prerogative royall are still in force within this Realme as the Kings Ecclesiasticall Lawes of the same 4 The Jurisdiction of the Ecclesiastical Law ought to be bounded by the Common Law Spiritual Laws 1 The Spiritual Laws mentioned in Littleton Sect. 648 are such Ecclesiasticall Lawes as are allowed by the Laws of this Realme Co. Inst pars 1 344. a. Co. l. 5. pars 1. 32. b. Jurisdiction Stat. 35 H. 8. 19 33 H. 6. 34. 32 H. 6. â—8 viz. which are not against the Common Law whereof the Kings prerogative is a principal part nor against the statutes or customes of the Realme Prerogative and regularly according to such ecclesiasticall Lawes the Ordinarie and other Ecclesiastical Iudges do procéed in causes within their Conisance and this Iurisdiction was so bounded by the Ancient Common Lawes of the Realme and so declared by Act of Parliament 5 Dies Dominicus non est juridicus The Lords day 1 In all the four terms the Lords day is not Dies
paramount but never to recover pro rata against her by force of the warranty in Law upon the partition for by her alienation the unitas juris that was betwixt them is severed and she hath dismissed her selfe to have any part of the land as parcener and as parcener she must recover pro rata upon the warranty in law or not at all Co. Inst pars 1 2. b. 2. 68 If an alien purchase lands Alien Merchant c. upon an office found the King shall have them yet being a Merchant he may take an house and kéep it so long as he useth commerce and for that purpose but when he leaves so to do dies or departs the Realm the King shall have them Dyer 13. 61. 28 H. 8. 69 If a man make his executors and enter into religion A Monk dereigned and after is dereigned In this case he shall have againe all his goods which his executors have not spent for cessante causa c. Dyer 57. b. 1. 25 H. 8. 70 Cestuy que use for terme of life since the Stat. of R. 3. makes a lease for the term of the life of the lessor and dies In this case the estate of the Lessée is determined Cestuy que use and he is after the death of Cestuy que use onely tenant at sufferance The Lo. Zouches case 20 Remoto impedimento emergit actio contra Co. Inst pars 1 128. b. 2. 1 If the defendant plead an outlawry in the Plaintiffe Out lawry in disability of his person and the Plaintiff after that plea pleaded purchase a charter of Pardon because the charter hath restored him to the law the defendant shall answer So note the disability abateth not the writ but dis-inableth the Plaintiff until he obtaineth a charter of Pardon Co. ibid. 133. b. 3. 2 Excommunication may be pleaded in disability of the person Excommunication yet if the demandant or Plaintiff purchase letters of absolution and shew them to the Court he may have a re-summons or re-attachment upon his original according to the nature of his writ 9 H. 7. 27. Co. ibid. 238. b. 2. 3 If a disseisor make a gift in taile Entry revived and the donée hath issue and dieth seised now is the entry of the disseisée taken away but if the issue die without issue so as the estate tail which descended is spent the entry of the disseisee is revived and he may enter upon him in the reversion or remainder 13 H. 4. 8 9. 33 H. 6. 5. b. per Moyle 34 H. 6. 11. a. per Curiam Co. ibid. 3 If there be grandfather father and sonne disseiseth one and enfeoffeth the grandfather who dieth seised The like and the land discendeth to the father now is the entry of the disseisée taken away but if the father dieth seised and the land discendeth to the sonne here is the entry of the disseisée revived and he may enter upon the sonne who shall take no advantage of the discent because he did the wrong unto the disseisée Co. ibid. 4 If a disseisor make a Lease to an Infant for life and he is disseised and a descent cast the Infant enters The like the entry of the disseisée is lawfull upon him Co. ibid 245 b. 1. 5 If the mulier entreth upon the Bastard Bastard Mulier and the Bastard recovereth the land in an assize against the mulier now is the interruption avoided and if the Bastard die seised this shall barre the mulier Littl. § 407. 408. Co. ibid. 248. 6 If I am disseised by an infant within age Entry revived who aliens to another in fée and the alienée dies seised and the tenements descend to his heire the Infant being still within age here my entry is taken away way but if the Infant within age enter upon the heire that is in by descent as he well may because the descent was cast during his nonage then may I well enter upon the desseisor because the infants entry hath defeated that descent The like 7 If I be disseised and the disseisor makes a feofment in fée upon condition and the feoffée dies seised of that estate Here Littl. § 409. Co. ibid. 248. I cannot enter upon the heire of the feoffée But if the condition be broken so that the feoffor doth therefore enter upon the heire Now may I well enter because by the entry of the feoffor the descent was utterly defeated The like 8 If a feme inheritrix take baron and they have a sonne Littl § 636. Co. ibid. 338. and the baron die and she takes another baron and the second baron lets the land that he hath in right of his wife to another for terme of his life and after the feme dies and then the tenant for life surrenders his estate to the second baron Littleton makes a Quaere whether the issue of the feme may enter during the life of the tenant for life but after his death he holds it cléer he may and my Lord Cook proves it plainly that he may also enter upon the baron immediately after the surrender Collateral and lineal warranty 9 A collateral warranty doth not give a right Co. ibid. 372. a. 1. Littl. § 708. but onely bindeth a right so long as the same continueth and therefore if the collateral warranty be determined removed or defeated the right is again revived as in this example If tenant in tail hath issue thrée sonnes and discontinue the taile in fée and the second sonne releaseth by his déed to the discontinuée binding himself and his heires with warranty c. and after the tenant in taile dies and the second sonne dies without issue here the eldest sonne is barred to have any recovery by writ of Formedon because the warranty of the second brother is collaterall unto him in as much as he can by no meanes convey unto himself by force of the entaile any descent by that brother and therefore as to the eldest brother it is collaterall warranty But in this case if the eldest brother die without issue then may the youngest brother well have his writ de Formedon in descender and shall recover the land because the warranty of the second brother is lineall to the youngest sonne in as much as he might have conveyed unto himselfe by possibility the estate by his second brother in case he had survived the eldest c The like 10 If tenant in taile lets lands to a man for term of his life Littl. § 738. Co. ibid. 387. the remainder to another in fée and a collaterall ancestor confirmes the estate of the tenant for terme of life and binds himselfe and his heirs to warranty for the terme of the life of the tenant for life and dies and the tenant in taile hath issue and dies in this case the issue is barred of his
alive he should have gone quit by the acquittal of A. because he could not be a Receiver of a felon when A. was no felon And remoto impedimento c. Vide plus ubi supra 21 Things are construed according to that which was the cause thereof Vide 31. 9. Tenant by courtesie 1 If the King give lands to a man and a woman and to the heires of their two bodies and the woman die without issue Co. Inst pars 1 21. b. 4. 9 H. 3. Dower 202. yet shall the man be tenant in taile after possibility c. But if the King give land with a woman of his kindred in frank-mariage and the woman die without issue the man in the Kings case shall not hold it for his life because the woman was the only cause of the gift but otherwise it is in the case of a common person Frankmariage 2 If lands be given to a man and a woman in special taile Co. ibid. 7 H. 4. 16. a. and they are divorced Causa praecontractus both shall hold the lands for their lives a 13 E. 3. Tit. Ass 19 E 3. Ass 83. 12. Ass 22. 19 Ass 2. But in case of frankmariage if they be so divorced the woman shall enjoy the whole land because she was the cause of the gift So if lands holden in c Plowd Carzibs case soccage be given in special tail and the Donées die the issue being within the age of 14 yeares e 17 H. 3. Gard. 146. 27 E. 3. 29. Co. ibid. 29. b. 3 Co. ibid. 42. a. 4 the next of kinne of the part of the father or of the part of the mother which can hap the custodie shall have it but in case of frank-mariage the heire of the part of the mother shall have it because she was the cause of the gift as aforesaid Co. ibidem 88. a. 4. Formedon 3 If a woman tenant in general tail maketh a feoffment in fée and taketh backe an estate in fée and take an husband and hath issue and dieth the issue may in a Formedon recover the land against the father because he is to recover by force of the estate taile as heire to his mother and is not in that case inheritable to his father the estate tail being the cause and ground of his title An Office 4 A man may have an estate for life determinable at will 3 E. 4. 8. b. as if the King doth grant an office to one at will and also grant a rent to him for the exercise of his office for terme of life this is determinable upon the determination of the office which occasioned the grant of the rent 19. 59. Co. ibid. 85. a. 2 5 If a man make a Lease for yeares of a villeine this cannot be done without déed neither can the Lessée assigne it over without déed Grant of a Villain by deed because it is derived out of a fréehold that lyeth in grant which indéed is the material cause of the grant but a wardship is an original chattel during the minority derived out of no fréehold and therefore as the Law createth without déed so may it also be assigned over without déed Co. ibi 102. a 4 9 E. 2. execut 249. 6 Vpon a judgement in debt Judgement execution the Plaintiffe shall not have execution but onely of that land which the defendant had at the time of the judgement because the action was brought in respect of the person and not in respect of the land But if an action of debt be brought against the heire and he alieneth hanging the writ yet shall the land which he had at the time of the Original purchased be charged for that the action was brought against the heire in respect of the land Co. bid 102. b. 1. 22 Ass Pl. 32. 7 If a man be nonsuit the land onely Amerciament Issues of Jurors which he had at the time of the amerciament assessed shall be charged and not that which he had at the finding of the pledges for the amerciament is not in respect of the land but for his want of prosecution which was a default in his person But the issues of a Iuror shall be levied upon the feoffee albeit they were not lost before the feoffment because he was returned and sworn in respect of the land 8 A tenure of the King in Capite Tenure in gross is said to be a tenure of the King a Bract. f. 87 as of his Crown that is as he is King c Co. ibid. 108 a. 4. ubi Vide praedict Author And therefâ—râ— if one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of treason he holdeth of the pâ—rson of the King but not in Capite because the original tenure was not created by the King Vide infra M. 25. ca. 10. Co. ibid. 158. a. 3. 15 H. 7. 9. 14 H. 7. 31. 18 E. 4. 3. 9 If the cause of challenge alleaged by the Plaintiff against the Sheriff be pâ—rtiality to either party Challenge and processe be once awarded for such partiality though there be a new Sheriff yet processe shall never be awarded to him but to the Coroners and therefore in that case the entry is Ita quòd Vicecomes se non intromittat But if the cause of Challenge be for that the Sheriff was tenant to either party or the like in that case the processe shall be directed to the new Sheriff and not to the Coroners Co. ibid. 161. a. 2. 44 E. 3. 20. 6 R. 2. Refc 11 11 H. 7. 4. 21 H 7. 40. 34 H. 6. 18. 16 E. 4. 10. Co. l. 9. fol. 22. Case of Avowry Co. ibid. 169. b. 2. 15 H. 7. 14. 29 Ass 23. 29 E. 3. 9. b. 10 If the Lord come to distreine cattle Distress which he séeth then within his fée and the tenant or any other to prevent the Lord to distreine driâ—es the cattle out of the Lords fée into some other pâ—ace not within his fée yet may the Lord freshly follow and distreine the cattle and the tenant cannot make rescous But if the Lord comming to distreine had no view of the cattle within his fée though the â—enant drive them off purposely or if the câ—ttle of themselâ—es after the view goe out of the fée or if the tenant after the view remove them for any other cause then to prevent the Lord of his distresse then cannot the Lord distrein them out of his fée and if he doth the tenant may make rescous 11 If there be thrée Coparceners and they make partition Rent in Coparcenary and one of them grant 20 s. per annum out of her part to her two sisters and their heires for egaltie of partition the grantées are not joynt-tenants of this rent but
of Attorney to the Lessor to make Livery and the Lessor maketh Livery accordingly notwithstanding the Lessor shall enter for the forfeiture because the Lessor for life had a Frank-tenement in him whereupon the Livery might work but if Lessée for yeares make a feoffment in fée and a Letter of Attorney to the Lessor to make Livery and he make Livery accordingly this Livery shall bind the Lessor and shall not be avoided by him for the Lessor cannot in this case make Livery as Attorney to the Lessée because the Lessée had no Freehold whereof to make Livery but all the Fréehold was in the Lessor Dyer 5. b. 1. 26 H. 8. 27 A man seised of devisable land before the Statute of Uses Rent devisable makes a Lease for yeares rendring rent and deviseth that rent to a stranger and dies and the stranger is seised of the rent and dies In this case the executors and not the heire of the devisée shall have the rent because the rent was but a Chattel in the devisée Dyer 90. b. 8. 1 Mar. 28 If there be Lessor and Lessée Trees sold by the Lessor and the Lessor sells all his trées growing in such a close Here nothing passeth to the Vendée for albeit the Lessor hath a general property in them yet the special property thereof is in the Lessée because the wood and trees are parcel of the Lease who shall by force of his Lease have the shade and fruit thereof as also the branches and loppings for fuel and mending of fences And therefore if the Lessor fell trees without the licence or will of the Lessee a good action of trespasse lyeth for the Lessée against him So likewise in 5 H. 4. 59. the heire in Chivalry being in ward fells trées in the land in ward and the Guardian brings trespasse against him and he pleads the special matter in barre Sed non allocatnr per curiam c. 25 Things are construed according to that which was the beginning of them Vide Max. 63. 21. Priviledge of tenant by the courtesie 1 Tenants after possibility of issue extinct Co. Inst pars 1 28. a. 2. although upon the matter he be but a Tenant for life yet hath he 8 priviledges incident to his estate which the Law alloweth not to a bare Tenant for life in respect of the inheritance which was once in him which priviledges you may see Co. In. part 1. 28. a. 2. The like 2 If a woman Tenant in taile general taketh an husband and hath issue which issue dieth and the wife dieth also without any other issue Co. ibid. 30. a. 1 there albeit the estate in tail be determined yet shall the hushand be Tenant by the Curtesie because he was intitled to be Tenant per Legem Angliae at first upon having the issue before the estate in taile was spent And although in this case the estate be not consummate untill the death of the wife yet it hath such a beginning after issue had in the life of the wife as is respected in Law for divers purposes for 1 After issue had he shall do homage alone and is become Tenant to the Lord and the Avowry shall be made onely upon the husband in the life of the wife 2 If after issue a 34 E. 2. Cui in vita 13. 2 E. 2. Cui in vita 26. 10 E. 3. 12. Dyer 21. El. 3â—3 29 E. 3. 27. the husband maketh a feofment in fée and the wife dieth the feoffée shall hold it during the life of the husband and the heire of the wife shall not during his life recover it in a sur cui in vita for it could not be a forfeiture because the estate at the time of the feofment was an estate of tenancy by the Curtesie initiate and not consummate And it is adjudged in 29 E. 3. that the Tenant by the Curtesie cannot claime by a Devise and waive the estate of his tenancy by the Curtesie because saith the Book the Fréehold commenced in him before the Devise for terme of his life A Voyage Royal. 3 When the King makes Voyage Royal into Scotland to subdue the Scots Co. ibid. 71. a. 4. Littl. § 96. Co. ibid. 70. a. 1 Co. ibid. 108. a. 4. Vide infrà 10. c. M. 43. 12. Co. ibid. 164. a. 4. c Bracton l. 1. 66. Britt cap. 71. Fleta l. 5. c. 9. 6. c. 47. the Law accompteth the beginning of the forty dayes to be after the King entreth into the forreigne Nation for then the Warre beginneth and till he come there he and his host are said to go towards the Warre and no military service is to be done till the King and his host come thither Tenure in Capite 4 If one holdeth land of a common person in grosse as of his person and not of any Mannor c. and this Seigniory escheateth to the King yea though it be by attainder of Treason he holdeth of the person of the King but not in Capite because the original tenure was not created by the King 3 E. 3. B. tenures 94. 30 H. 8. 43. 28 H. 8. B. livery 57 c. Descent in Capita stirpes 5 In case of Coparceners sometimes the descent is in Stirpes viz. to Stocks and Roots and sometimes in Capita to Heads As if a man hath issue two daughters and dieth this descent is in Capita viz. that each daughter shall inherit alike as Littleton saith Sect. 241. But if a man hath issue two daughters and the eldest daughter hath issue thrée daughters and the youngest but one daughter All those four shall inherit but the daughter of the youngest shall have as much as the thrée daughters of the eldest Ratione Stirpium in respect of their mothers estate from which theirs took beginning and not Ratione Capitum for in judgement of Law every daughter hath a seveaal Stock or Root So if a man hath issue two daughters and the eldest hath issue divers sonnes and divers daughters and the youngest hath issue divers daughters the eldest sonne of the eldest daughter shall onely inherit and all the daughters of the youngest for this also is not in Capita but in Stirpes and in this case the eldest sonne is Coparcener with the daughters of the youngest and shall have one moity viz. his mothers part So that men descending of daughters may be Coparceners as well as women and shall joyntly implead and be impleaded c. Vide 26. 2. Littl. § 2â—2 Co. ibid. 178. b. 2. 6 The Lands in Frank-mariage to be put into Hotchpot Frankmariage Hotchpot and the Lands in Fée simple which descend ought to move from one and the same person for if they moved from several Ancestors they cannot be put into Hotchpot c. Co. ibid. 187. a. 4. 39 H. 6. 45. 21 R. 2. judg 63. M. 33. E. 3. 7 If Lands be given to
Finch 11. Tenant in tail in remainder cannot falsifie a recovery 7 A. is Tenant in taile remainder to B. in taile Co. lib. 1. 62. Caples case B. grants a rent charge A. suffers a common recovery and dies without issue Here the Grantée of the rent shall not have it because he cannot falsifie the recovery being suffered by one that could not be chargable with the rent for if B. in the remainder cannot do it may lesse the Grantée that claimes under B. An Infant not remitted 8 If a man by Covin disseise the Discontinuée of Tenant in taile with an intent to enfeoffe the issue in taile being within age 19 H. 8. 8. per six Justices Co l. 3. 78. a. Fermors case although the Infant was not conscious of the Covin c. yet shall he not be remitted because the Infant that is in by him who acted the Covin shall be in the same plight with him that performed the covenous act A Copihold a firm estate 9 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. Murrel and Smiths case that by the severance of the inheritance of the Copihold from the Mannor the Copihold it selfe is not destroyed For in as much as the Lord himselfe cannot out the Copiholder much lesse shall he that claimes under him do it Executors shal lose arrerages 10 If the sonne be Lord and the father Tenant by certaine rent Co. l. 4. 49. a. Ognels case the rent is arreare the Tenant dies and the tenancie descends to the sonne in this case if the sonne also dies the executors of the sonne shall not have an action of debt for the arrearages incurred in the sonnes life because the sonne himselfe by no possibility could have such an action for that the tenure was altogether in the realty and the Tenant could not be charged in any personal action for those arrearages The like 11 If A. hath rent service or rent charge in fée or for life Co. ibid. 50. b. 4 Co. l. 5. 12. b. 1. Sanders case and the rent is arreare and after A. grants over the rent to another and the Tenant attorns and after A. dies in this case the executors of A shall not recover the arrearages by force of the Statute of 32 H. 8. cap. 27. For by the grant the over arrearages were lost and were not due to the Testator at the time of his death and the Statute saith the executors shall recover them c. in as large and ample manner as the said Testator might or ought to have recovered them c. Waste in a Cole-mine 12 A. demiseth a lease to B. for yeares Co. l. 5. 113. a. Mallories case Co. Inst pars 1. 321. b. 1. M. 36 37 El. in Co. B. Rot. 420. Owseys case wherein there is a Cole Mine not opened Here if B. open the Mine it is wast And therefore if after the Mine is open B. assigne his terme to C. and C. taketh the benefit of the Mine C. also committeth wast albeit the Mine was open before for Derivata potestas non potest esse major primitiva Grant of a reversion not good without attornment 13 If a Lease for life or years be made rendring rent c. and after the reversion is granted to B. by fine and before attornment B. disseiseth or outs the Lessée and enfeoffes C. the Lessée re-enters this shall not amount to an attornment in Law to make privity to C. and so to enable him to distraine for the rent for he shall not be in better estate than his Feoffor was it is otherwise if the Lessée had expressely attorned to the Feoffée Co. l. 6. 68. Sir Moile Finches case Demise durante viduitale 14 If a Feme seised of lands durante viduitate Co. 5. 116. a. Olands case make a Lease for yeares and the Lessée sow the land and afterwards the Feme that made the Lease takes Baron Here the Lessée shall not have the graine for although his estate be determined by the act of a stranger yet he shall not be in better case than his Lessor from whom he derives his interest Tenant in tail cannot demise longer then the estate lasts 15 If Tenant in taile make a Lease for lives according to the Statute of 32 Hen. 8. 28. and after die without issue Co. l. 8. 34. a. Pains case per Curiam this Lease being derived out of the estate tail shall not continue longer than the estate taile against the opinion in Dyer 33 Hen. 8. fol. 48. For Cessante statu primitivo cessat derivativus Co. 8. 135. b. Sir John Nedhams case 16 The Ordinary hath not power to give authority to another to sell the goods of the dead Ordinary cannot sell because he himselfe hath not any such authority 9 El. Dyer 255. Co. l. 9. 39. a. Hensloes case Co. 9. 76. b. 2. Combes case 17 A Copiholder may surrender by Attorney A Copihold may be surrendred by attorney but then that Attorney must pursue the manner and form of the surrender in all points according to the Custome as the Copiholder himselfe ought to do as if the surrender ought to be done by the rod or by any other thing or in any other manner the Attorney ought to observe it accordingly for his power shall not excéed the power of the Copiholder that gives him his authority Co. l. 11. 87. a. 4 The case of Monopolies 18 In the 11 Report The grant of a Monopoly void one reason why the grant of the Monopolie of making Cards to Edward Darcie was adjudged void was because he had no skil to make them and therefore albeit the grant extended to his Deputies and that he might appoint Deputies which might be expert yet if the Grantée himselfe be unexpert and so the grant void as to him he shall not make any Deputy to supply his place because Quod per me non possum nec per alium 27 Things are dissolved as they be contracted Unum quodque dissolvitur eo modo quo colligatum est Nihil tam conveniens naturali aequitati unumquodque dissolvi eo ligamine quo ligatum est Bract. l. 5. 413. Fleta l. 2. c. 12. Co. Inst pars 1 54. b. 1. Inst 2. part W. 2. cap. 24. 1 Bracton saith Writs not changed without Act of Parliament that writs original both formed and of course which are extant in the Register had their first authority by act of Parliament and therefore without an act of Parliament they cannot be altered or changed which is proved by Westm 2. cap. 24. whereby remedie is provided in many cases Bractons words are these Sunt quaedam brevia formata in suis casibus quaedam de cursu quae concilio totius regni sunt approbata quae quidem mutari non possunt absque eorundem
case Recovery or other assurance to certaine persons and within a certaine time and to certaine uses are but directory and do not bind the estate or interest of the land yet if the Fine Recovery or other assurance be pursued according to the Indentures no naked averment shall be taken against those Indentures viz. that after the making of the Indentures and before the assurance it was concluded and agréed by mutual consent of the parties that the assurance should be to other uses But if any other agréement or limitation of uses be made by writing or by any other matter as high or higher then shall the last agréement stand for every contract or agréement ought to be dissolved by matter of as high nature as that by which such agréement was contracted because Nihil tam conveniens c. Outlawry reversed by error upon an Indictment 19 One Eaton was indicted in B. R. for the death of a man Eatons case 18 H. 7. Co. l. 5. 111. a. Foxleyes case whereupon an exigent was awarded into the County of Lincolne Eaton dies and was never convict or attainted yet his executors being a writ of Error to reverse the award of the exigent For in as much as the King was entitled by matter of Record it ought to be avoided by matter of as high nature Co. l. 7. 45. Kâ—rns case 20 If two claim as heirs to one man of one and the same Land No traverse without office holden of the King and one is found by office the other cannot traverse that office without first finding another office which finds him heire also Co. l. 8. 25. b. 4. The Princes case 21 The Charter of E. 3. The Duchy of Cornwal Anno 11 Regni sui by which lands were annexed to the Duchy of Cornwal being past by the consent of the Lords and Commons in Parliament retained the force of an Act of Parliament and therefore those lands cannot be disannexed but by Act of Parliament Co l. 9. 79. a. b. 12. H. 4. 23. 9 H. 7. 4. 4 H. 8. Dyer 1. c. Henry Petoes case 22 If a man be bound in a Statute to do any collaterall Act Writing discharged by writing as to make a feofment to render a true accompt or the like here accord with execution by money or any other thing is not satisfaction to save the forfeiture of the Condition for the contract being made by writing to performe such a collateral Act it cannot in that case be altered without writing But if a man by contract or Assumpsit without Déed be to deliver a horse or to build an house or to do any other collaterall thing there money may be paid by accord in sasatisfaction of such Contract for as a Contract upon consideration may begin by parol so by accord by parol for any valuable consideration it may be dissolved Co. l. 10. 86. b. 4 Leonard Loveis case 23 Vses and Powers in contingencie and possibility may be by mutual assent of the parties revoked and determined for Uses and powers revoked c. as they may be raised by Indenture So by proviso or limitation annexed unto them in the same Indenture they may be extinguished and destroyed either before or after their being Co. Inst pars 1 115. a. 3. 24 Albeit a man cannot prescribe or alleadge a Custome against a Statute A prescription saved because it is matter of Record being indéed the highest proofe and matter of Record in Law yet a man may prescribe against an Act of Parliament when his Prescription or Custome is saved or preserved by another Act of Parliament c. Dyer 25. b. 160 28 H. 8. 25 A man is bound by Indenture to pay a summe of money Payment no plea without an acquittance and in an action of debt upon that Déed the Defendant saith he hath paid the summe but sheweth no acquittance In this case the plea is not good for this Indenture is like a simple Obligation where payment is no plea without an acquittance It is otherwise where the Obligation hath a Condition per Mountagu Vide suprà 6. Co. Inst pars 1. 131. a. 4. 26 By the Statute of 13 R. 2. 16. Protection If after a protection is allowed by Innotescimus the party stay in the Country without going to the Service for which he was retained above a convenient time after he hath such protection or repaire from the said Service upon information thereof to the Lord Chancellor he shall repeal such protection by another Innotescimus Howbeit such a protection shall not be avoided by a bare averment of the party in that case because the Record of the protection must be avoided by a matter of as high a nature 28 Things grounded upon an evil void beginning cannot have good perfection Co. Inst pars 1 19 a. 4. 30 E. 1. Form 65. Temps E. 1. 1 Before the Statute of West 2. cap. 1. Alienation by tenant in tail before issue no barre to the donor Alienation by the Donée in taile after issue had did barre the Donor of his reversion but if he had aliened before issue had and had after had issue although that alienation would have barred the issue because he claimed a Fée simple yet in that case if the issue had died without issue Dower of a Ibid. 62. 19. E. 2. Form 61. Plowd 246. Co. 7. 35. Nevils case Co. Inst pars 1 35. a. 3. the Donor might re-enter for that he aliened before any issue at what time he had no power to alien to barre the possibility of the Donor 2 Tenant for life of a Carve of land the reversion to the father in fée reversion ex assensu patris not good the sonne and heire apparent of the father endoweth his wife of this Carve by the assent of the father the Tenant for life dieth the husband dieth here the reversion was a tenement in the father and yet this is no good endowment ex assensu patris because the father at the time of the assent had but a reversion expectant upon a Fréehold whereof he could not have endowed his own wife and albeit the Tenant for life died living the husband yet quod initio non valet tractu temporis non convalescet â—imony makes the Presentation c. void 3 A Villein at this day purchaseth an Advowson in fée Co. ibid. 120. a. 2. the Church becomes void the Lord for 100 l. given by A. B. Clerke presents him to the Church and his Clerke is admitted instituted and inducted yet this gaineth not the Advowson to the Lord for by the Statute of 31 El. cap. 6. the presentation admission institution and induction in that case are made void and not onely voidable as they were before the Statute And so it is also if any other on the behalfe of A. B. had given or contracted with the Lord in
the Executrix of the Obligée his Executrix and left assets she could not sue her selfe but the debt was presently satisfied by way of retainer and consequently no new action could be had for that debt Vide suprà 46. 4. Hob. 85. Day and Savage 37 Trial of the Customes of London shall not be by Certificate from the Major and Aldermen of that Citie albeit it be by their Recorder to the superiour Courts of Iustice Customes of London because they cannot be Iudges and parties when their Customes come in question 55 The Law favoureth privity Vide Max. 47. 16. Co. Inst pars 1 28. a. 2. 1 Tenant in tail after possibility of issue extinct hath divers priviledges annexed to his estate Tenant in 〈◊〉 after possiâ—â—â—â—ty which a bare Tenant for life hath not for which see Co. Inst pars 1. 27. b. neverthelesse if he grant over his estate to another his Grantee shall not have them for he hath those priviledges in respect of the privity of his estate and of the inheritance that was once in him And therefore it was adjudged in the case of one Evens Mich. 28 29 Eliz. that where Tenant in tail after possibility of issue extinct granted over his estate to another that the Grantée was compelled to atturn in a Quid juris clamat as a bare Tenant for life Quid jurâ—â— clamat and is so to be named in the writ For by the assignment the privity of the estate being altered the priviledge was gone and this judgement was affirmed in a writ of Error And herewith also agréeth 27 H. 6. Aid Statham 29 E. 3. 1. b. Co. l. 11. fol. 83. b. Bowles case Vide infrà 116. Co. ib. 35. a. 1. 2 If the husband make several feoffments of several parcels Assignment Dower by 〈◊〉 Feoffee 〈◊〉 the heire and dyeth and one of the Feoffées assign dower to the wife of a parcel of land in satisfaction of all the Dower which she ought to have in the lands of the other Feoffées In this case the other Feoffées shall take no benefit of that assignment because they are strangers thereunto and cannot plead the same But in the same case if the husband died seised of other lands in Fée-simple and the same descended to the heire and the heire endoweth the wife of certain of those lands in full satisfaction of all the dower that she ought to have as well in the lands of the Feoffées as in his own lands this assignment is good and the several Feoffées shall take advantage of it And therefore if the wife bring a Writ of Dower against any of them they may vouch the heire and he may plead the assignment which he himself hath made in safety of himself lest they should recover in value against him So as there is a privity in this respect betwéen the Heire and the Feoffées and by this means the assignment may be pleaded by the heire that made it Livery to the Lessee for years 3 If a man let lands for years the remainder over to another in fee Co. ib. 49. a. â— 143. a. 2. Albeit livery be not necessary for the Lessee for years yet because the immediate possession belongeth to him he must of necessity take the livery otherwise no estate can passe to him in remainder And livery being accordingly made unto him it shall convey the estate to him in remainder by reason of the privity of those estates For the particular estate and the remainders which depends upon it though there be never so many do all make in Law but one estate and therefore livery to the Lessee for yeares shall enure to him in remainder c. Waste 4 The advantage of bringing an action of Waste consists in privity Co. ib. 53. b. 3 4. for if after the Waste done the Reversioner granteth away his estate albeit he afterwards taketh back the whole estate again yet as the Waste dispunishable So likewise if he grant the reversion to the use of himself and his wife and of his heirs yet the Waste is dispunishable c. because the estate of the reversion wherein the privity is to that purpose consisted continueth not but is altered c. If an estate taile determines hanging the action of Waste so that the Plaintiff becomes Tenant in taile after possibility c. the action of Waste is gone If the Tenant doth Waste and he in the reversion dieth the heire shall not have an action of Waste for the Waste done in the life of the Ancestor nor a Bishop Master of an Hospital Parson or the like for Wast done in the time of the Predecessor And so if Lessee for years doth Waste and dieth an action of Waste lyeth not against the Executor or Administrator for Waste done before their time But if there be two Coparceners of a reversion and Waste is committed and the one of them die the Aunt and the Niece shall joyn in an action of Waste c. Vide Inst 116. â—mage 5 If there be two Coparceners or Ioyntenants of a Seigniory Co. ib. 67. b. 2. if the Tenant doth Homage and Fealty to one of them he shall be excused against the other and this is by reason of the privity and intirenesse of their estate Homage exâ—inct 6 In homage Ancestrel Co. ib. 102 b. 3. continuance of bloud on the Lords side is not always necessary for an Abbot Prior Bishop or the like may be Lord by Homage Ancestrel but yet there ought to be privity of succession time out of minde in one and the same politique body for if that body be once dissolved though a new one be bounded of the same name and all the possessions be granted to them yet the Homage Ancestrel is gone Howbeit if a Prior and Covent be translated Concurrentibus hiis quae in jure requiruntur to an Abbot and Covent or to Deane and Chapter In that case because the privity is preserved the Homage Ancestrel doth also remain for albeit the name be changed yet the body was never dissolved but in effect remaineth still c. Homage exâ—inct upon aâ—ienation 7 If the Tenant that holds by Homage Ancestrel Co. ib. 103. a. 3. Litt. Sect. 147. aliens his land to another the Alienee shall not hold of the Lord by Homage Ancestrel because the privity of the estate is altered and the continuance of it in the bloud of the Tenant is dissolved And if the Tenant take againe an estate in see of the land from the Alienee he then holdeth by Homage but he shall not hold by Homage Ancestrel causa qua suprà So it is also if the Tenant make a feoffment in fee upon condition and dieth his heire performeth the condition and re-entreth Here the Homage Ancestrel is destroyed in respect of the interruption of the continuance of the privity and estate as it was agréed in a Case between the
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
intendeth for the Law intendeth a constant and perpetual apparence c. â—ant by the â—resie â—gh the 〈◊〉 be atâ—ted 5 If a man takes a wife seised of lands or tenements in fée and hath Issue and afterwards the wife is attainted of felony Co. ib. 40. a. 1. so as the Issue cannot inherit to her yet he shall be Tenant by the courtesie in respect of the Issue which he had before the felony and which by possibility might then have inherited But if the wife had béen attainted of felony before Issue had albeit he hath Issue afterwards he shall not be Tenant by the courtesie Because then there was no possibility at all that such Issue should inherit after her â—ant in â—er though â—e be a â—ing imâ—bility of â—ng Issue 6 Dower is given to the Feme for the possibility that the Issue Co. ib. 40. a. 3. which she may have by the Baron may inherit his land albeit she be barren and have no Issue by the Baron And although the Feme be 100 yeares old and the husband at his death onely 4 or 7 years old yet shall the Feme be endowed For the Law can not judge that impossible which may fall within the bounds of nature to be possible it being certain that women in ancient time have had Children at such an age as no women doth now attaine unto and my Lord Coke saith that he knew a woman above 60 years old to have a Childe ideò non definitur in Jure c. Co. ib. 47. a. 1 7 A Rent cannot be reserved by a Common person upon an Estate for life of any incorporal inheritance as Advowsons Commons Rent reservâ—â— upon a reveâ—sion or rendring good Offices Corody Multure of a mill Tythes Faires Markets Liberties Priviledges Franchises and the like because the Lessor cannot have resort or recourse to distraine for the Rent arreare and if it be upon a lease for yeares yet he shall not distraine for it but have onely an Action of debt for it upon the contract Howbeit a reversion or a remainder of Lands or Tenements may be granted reserving a Rent for the apparant possibility that it may come in possession c. Co. ib. 58. b. 3. 8 Albeit a Copi-hold Tenement that escheates Copi-hold the Lords â—â—maines still demisible is kept for many yeares together in the Lords hands yet it still retaines the quality of being demisible in respect of the possibility that the Lord may again admit some man unto it c. Co. Inst p. 1. 80. a. 1. 9 If the Ancestor marieth his heire apparent within the age of consent and dyeth the Infant being still within the age of consent An infant mâ—â—ried before yeares of coâ—sent the Lord may take the Infant if he will into his possession and if the Infant be detained from him he shall recover him in a writ of ravishment of ward and thereupon have the Infant delivered unto him And this is in respect of the possibility that the Infant may dis-agrée to the marriage Howbeit if at the yeares of consent he agrée to the marriage neither the King nor the Lord shall have the marriage for then it is a marriage ab initio and there néed no other marriage Co. ib. 244. a. 2 10 If the Husband hath an apparant possibility of procreation Issue the hâ—â—band inteâ— Maria. as under eight years or under the age of procreation the Issue which his Wife hath is a Bastard albeit he was then within the four seas that is within the jurisdiction of the King of England but when the parties are both of full lawful age if the Husband be within the four seas as afore-said when the wife hath Issue albeit he never came neer her yet is the Child Legitimate for the possibility that they might méete together For in that Case Filiatio non potest probari c. So it is also if the Issue be borne within a moneth or a day after marriage for in such Case the Law will not judge of any impossibility c. Co. ib. 316. a. 4 Co. l. 10. 44. a. 2. Jennings Case 11 A. seised of Land in Fée grants it in tail to B. and afterwards grants the Reversion to C. in Fée by Fine in this Case Tenant in tâ—â—â— not compelable to attoâ—â—â— the Tenant in tail is not compellable to attorne in respect of the possibility that this Estate being an Estate of Inheritance may continue for ever c. Litt. §. 707. Co. ib. 371. 6. 12 If a man hath Issue two Sonnes and is disseised Lineal colateral warranty and the eldest Son release to the Disseisor by déed with Warranty and die without Issue and afterwards the Father dies this is a lineal Warranty to the younger Son for the possibility that the younger Son might have convyed his tittle to the Land through the eldest Son in Case the eldest Son had survived the Father Otherwise it is where the yonger Son deceaseth and dies without Issue for the eldest Sonne can by no possibility convey his title to the Land from the Father through the younger Son c. Litt. §. 708 Co. ib. 372. a. 13 If Tenant in taile hath issue thrée Sonnes Lineal câ—lateral waâ—ranty of Tenant in taile and discontinue the taile in Fée and the second Son releaseth by his déed with Warranty to the Discontinuee and after the Tenant in taile dies and the second Son dies without Issue here the eldest Sonne is barred to have any recovery by writ of Formedon because the Warranty of the second Brother is collateral to him for the impossibility that he may convey any Estate to him through the second Brother but if the eldest Sonne die without Issue then may the youngest Son have a Formedon in respect of the possibility that the youngest Son might have conveyed the descent of the land to him thorough the second Brother c. The heire shal have writthings 14 If a man make a Feoffment with warranty and die Co. l 11. b 4 in the Lo. Buckhursts Case the heire of the Feoffor shall have all the writings which the Feoffor himselfe might detaine albeit the heire hath nothing by descent for the possibility of the descent afterwards Grant of a remainder to the heires of I. S. good 15 If a Lease be made for life the remainder to the right heires of I. S. the same I.S. being then in rerum natura it is good Co. l. 2. 51. b. 1. Sir Hugh Cholmeleys Case for the common possibility that I. S. may die during the life of the Tenant for life Co. Inst p. 1. 378. a. 3. The Law considereth a child in ventre sâ—â—â—re 16 Albeit Filius in utero matris is part viscerum matris vide 3. Ass Pl. 2. 22 Ass Pl. 94. 22 E. 3. Tit. Corone 180. Stanford fol. 21. Co. l. 7. 8. b. 4. the
thing collaterall and transfers or convey nothing as if the Major and Cominalty of London have an Estate for the life of I. S. if in this Case the Major and Cominalty attorne to the grantée of the reversion the law requires that it shall be by déed for notwithstanding that the grantée comes not in by them that attorne and that the attornment is but a bare consent yet in pleading the déed of Attornment ought to he shewed for in such Case the déed is requisite ex constitutione Legis but when a déed is onely requisite ex provisione hominis in such Case the provision of a man shall not charge the judgement of the law as if a man make a lease for years of land to A. upon condition that he shall not assigne it over but by déed and not by parol in this Case ex provisione hominis the assignement ought to be by déed yet because ex constitutione legis the déed is not necessary for the assignée he may plead the assignement without shewing the déed â—â—render â—arranty â—â—â—â—ment 14 Fortior aequior est dispositio legis quà m hominis Co. l. 6. 69. b. 3 in Sir Mâ—ile Finches Case and therefore he that hath a future interest cannot surrender it by any expresse surrender but by taking of a new lease which is an Act and amount to a surrender in law it may be surrendâ—ed and determined as it is held in 35 H. 6. c. vide suprà cap. 5. So if the father be enfeoffed in Fée and the Feoffor warrant the land to him and his heires here the assignée shall not vouch but if the father enfeoffe his sonne and heire apparent with warranty and die in this Case the heire being in truth assignée shall vouch for the law which hath determined the warranty of the father to the son will give the son benefit of the first warranty as it was adjudged in 43 E. 3. 5. by which it appeareth that the act in law is both more strong and more equal The principal Case therein effect then the Act of the party can be So also if A. Lessée for 50 yeares demiseth to B. for 10 yeares and then the reversioner levies a fine to B. and his heires who enfeoffes D. who outs B. and B. re-enters upon D. here the entry of B. is a good attornment in Law and stronger then an expresse attornment Co. l. 8. 82. a. 3 in Vivyors ca. 15 Albeit a man be bound in an Obligation to stand to abide c. Authorities revocable an Atbitrament yet he may contermand it For a man cannot by his owne Act make such an authority power or warrant as shall not be countermandable which by the Law and in its one nature is countermandable as if I make a Letter of Attorney to make livery or to sue an Action in my name or if I assigne Auditors to take an accompt or if I make one my Factor or submit to an Arbitrament albeit these are made by expresse words irrevocable or if I bind my selâ—e that they shall stand irrevocably yet they may be revoked So if I make my last Will Irrevocable yet I may afterwards revoke it For my Act or my Words can not alter the judgment of Law and make that irrevocable which of its owne nature is revocable Co. l. 10. 67. b. 2 in the Church wardens of St. Saviour in Southwarke their Case 16 The Church-wardens of St. Saviour in South-warke having a Lease of the Rectory almost expired contracted Surrenders 〈◊〉 Law that the Church-wardens then having and possessing the said Rectory would pay 20 l. fine and surrender the old Letters Patents to the King and in consideration thereof a new lease should be granted them They paid the 20 l. fine delivered into the Chancery the Letters Patents and discharged the fées there but did not take care that the Letters Patents were â—acated and yet the King was not deceived in his grant but the lease adjudged good For it was a good surrender in Law because albeit the lessées were a corporation aggregate of many and could not make an expresse surrender without déed in writing under their seale yet they may by Act in Law surrender their term without any writing So if the Prior without the consent of the Covent make a lease for yeares rendring Rent if the Prior by déed expressely release the rent and die the Successor shall recover the arrerages but if the Prior out the lessée and die this discharge in law shall discharge the rent that incurred during the Outer against the Successor as appears in 34 H. 6. 21. Co. l. 1â— 80. b. 4 in Lewes Bowles Case 17 The Estate of a Tenant in Taile after possibility Tenant is taile after possibility â— c. ought to be a Râ—maine and residue of an Estate Taile and this by the Act of God and not by the limitation of the party ex dispositione Legis and not ex provisione hominis and therefore if a man make a Gift in Taile upon Condition that if he do such an Act that he shall then have it but for life he is not Tenant in Taile after possibility c. for this is ex provisione hominis and not ex dispositione Legis but it ought to be the remaine and residue of an Estate Taile and that by the Act of God and the Law viz. by the death of one of the Donées without issue And therefore if Tenants in special taile recover in an Assise and after one of them die without issue and afterwards he that survives who is Tenant in taile after possâ—bility is re-disseised he shall have re-disseisin for the francktenement which he had before for it is parcel of the Estate taile Vid. sup Case 4. Co. l. 8. 152 a. 2 Edw. Althams Case 18 If the Disseisée release all Actions to the heire of the disseisor thereby his right is gone in judgment of Law Release of right for when a man hath not any other meane to come by his Land but onely by way of Action if he release all Actions by such release his right is Inclusive in Iudgement of Law gone because by his own Act he hath barred himselfe of all meanes and remedies to recover or attain thereunto but if the heire of the Disseisorâ— make a Lease for life the remainder in fée and the disseisée release to the Tenant for life all actions which he hath against him and after Tenant for life die the disseisée shall have an action notwithstanding such release against him in remainder for he did but release the action and the act in law will never extend the act of the party more largely then his expresse words as if the Lord disseise his Tenant and make a lease for life this release in law shall not entend farther then for the life of the lessée for true it is Fortior potentior est dispositio Legis quà m
and 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
and the other Husband and Wife the other Moiety and no crosse Remainder or other possibilitie for the improbability thereof shall be allowed in Law where it is once setled and takes effect so likewise if Lands be given to a man and two women and the Heires of their bodies begotten in this case they have a joynt Estate for life and each of them a severall Inheritance because they cannot have one Issue of their bodies neither shall there be by any construction a possibility upon a possibility for the Improbability thereof viz. that he shall marry the one first and then the other The same Law it is also when Land is given to two men and one woman and to the heires of their Bodies begotten Co. l. 2. 51. a 4. in Sir Hugh Cholmelies case in Magdalen Colledge case Co. l. 11. 70. b. 3. 2. A remote possibility is never intended by Law Remainders improbable to take effect And therefore where A. was Tenant in Taile Remainder in Taile to B. B. grants all his Estate to C. for the life of A. this Grant is void because it is impossible it should ever take effect and whereas in that case it was objected that A. might enter into Religion and be profest whereupon the Grantee might enter and enjoy the Land during the naturall life of A. it was answered and resolved That that was a Forraigne possibility and not probable nor imaginable in Law for a possibility which makes a Remainder good must be Potentia propinqua a common possibility and not Potentia remota And therefore a Remainder will not vest in a thing or person that is not in Esse at the time of the Grant made unless at the same time there be Potentia propinqua or a pregnant probability that it may take effect as a Remainder granted to a Corporation not in being at the time of the Grant made is void albeit the Corporation be erected afterwards during the particular Estate because that is Potentia remota and improbable But if a Lease be made for life the Remainder to the right Heires of I. S. this is good for by common possibility that I.S. may dye during the life of Tenant for life and untill he dye his Heires are in him Howbeit if at the time of the limitation of the Remainder there be no such person as I.S. but during the life of Tenant for life I.S. is borne and dyes his Heir shall never take it 2 H. 7. 13. 10 E. 3. 46. as it is agreed in 2 H. 7. 13. So likewise in 10 E. 3. 46. upon a Fine levied to R. he grants and renders to I. and Florence his Wife for life the Remainder to G. the Son of I. in taile the Remainder to the right Heires of I. and in truth at the time of the Fine levied I. had not any Son named G. but after had issue named G. and dyed In this case G. could not take the Remainder in Taile because he was not borne at the time of the Fine levied for when I. had not then any Son named G. the Law doth not expect that he shall have a Son named G. after for that is improbable and Potentia remota c. Obligation payable before statutes 3. Debt due by Obligation shall be payd by an Executor before a Statute acknowledged for the performance of Covenants Co. l. 5. 28. b. Harrisons case when none of them are or perhaps will ever be broken but are things in contingency Futuro and therefore such a possibility which peradventure will never happen shall not barre present and due debts by Obligation or other specialties Contingency 4. When a man by Indenture limits Lands to himselfe for life Co. l. 10. 85 a. 2. in Leonard Lovies his case Remainder to another in taile Remainder to his right Heirs with power to make Leases for Life Lives or Yeares without any restraint of Lives or Yeares and further to the uses to be exprest in his last Will or to the use of such person or persons unto whom he shal by his last Will devise any Estate or Estates thereof In this case the Estate in Taile is incontingency for by those or the like words he may devise the Land to any person in Taile or in Fee And therefore because it is very improbable that the Estate tail may ever take effect it shall not in this case presently vest by the statute of 27 H. 8. but shall be said to be in contingency so as if he by such power alter not the Estates so limited it may happen to take effect but if otherwise it will vanish and come to nothing Vide pl. ibidem Bar to an avowry 5. In Bar to an Avowry for Trespasse in 300 acres of common field Land or Downe Dyer 171. 9. 1 2. Eliz. the Plaintiff to frame himselfe a Title alledgeth in his Barr that A. from whom he derived his Estate was seised of the scite of the Mannor of Dale whereof the said 300 acres were parcell and this Barr was adjudged insufficient for the Improbability that so much Land should be parcell of the scite 162. Uncertainties by which the truth may be inveigled Villain 1. If a man do enfranchise a Villain Cum tota sequela sua Co. Inst pars 1. 3. a. 4. that is not sufficient to enfranchise his children borne before for the uncertainty of the word Sequela Heires 2. If a man gives Lands to one to have and hold to him or his heirs Co Ib. 8. b. 3. 22 H. 6. 15. he hath but an Estate for life for the uncertainty so if a man give Land to two to have and to hold to them two Et heredibus omitting Suis they have but an Estate for life for the uncertainty Co. ibid. 9. a. 2. and Co. ibid. 20. b. 1. 3. To avoid uncertainty Vocabula artis which is commonly the Mother of contention and confusion the Law doth appropriate to it selfe certaine words which may be termed Vocabula artis to expresse diverse things which cannot significantly be expressed by any other words or by any Periphrasis or circumlocution without them as the word Heires for the discent of Inheritance which doth not only extend to his immediate heirs but to his heires remote and most remote born and to be borne Sub quibus vocabulis heredibus suis omnes haeredes propinqui remoti nati nascitari And Haeredum appellatione veniunt haeredes haeredum in infinitum saith Fleta lib. 3. cap. 8. So likewise the Law useth peculiar words for Tenures Persons Offences Formes of Originall Writs Warranty Exchange c. and all this to procure certaine expressions and to prevent uncertainty for the reason aforesaid Co. ibid. 20. b. 1. 4. If a man give Lands to A. Et haeredibus de corpore suo A grant void the Remainder to B. In forma predicta this is a good Estate Taile to
sometimes in the count and for want of certainty it shall abate as in 3 E. 4. A man retained in Husbandry brings an Action of debt against a Prioresse for his salary and declares that he was retained with his Predecessor and shewes not the person that retained him this count abated for the uncertainty for it might be that one who had not Warranty retained him for the Predecessor Sometimes the Count and Writ also may be generall without certainty as in Assizes but there the certainty ought to be shewed by the Replication sometimes the Writ Count and Replication may be uncertaine but then the certainty ought to appeare by the Verdict as in a Quare Impedit the value appeares not in the Count nor in the Replication but it will appeare by the Verdict for they shall assesse double damages or damages by halfe a yeare according to the value of the Church so in a Writ of Ward the Iury shall find whether the heire be marryed or not and shall assesse damages for it and yet in the Count or Replication no such matter appeares So likewise in a Detinue the value of the goods shall appeare by the Verdict c. so as certainty ought alwayes to appeare to the Court. Jeofaile 72. In debt upon an Obligation for performance of Covenants Dyer 31. 217. 28 H. 8. whereby the Defendant was bound to do and suffer to be done upon request all such things for the Plaintiffs assurance in certaine Lands as should be devised by councell the Defendant saith that he was not requested the Plaintiff replyes that his councell advised that the Defendant should seal a Release which was required to be done and that the Defendnat refused to this the Defendant rejoynes and saith that he did not refuse and that he was ready to do it And the Court said that this re-joynder was a full Jeofaile and therefore insufficient for the uncertainty for that he waved his bar viz. the request which he ought to have maintained as to have said Quod non fuit requisitus Abayance 73. When the right of Fee-simple is perpetually by Iudgment of Law in abeyance without any expectation to come in esse Co. Inst part 1. 343. a. 3. there he that hath the qualified fee and to many purposes is no more then a bare Tenant for life concurrentibus hijs quae in jure requiruntur may charge or alien it as in case of a Parson Vicar c. when the Patron and Ordinary joyne with him in the Charge or Grant for in this case at the common Law when all that had an Interest in the thing did joyne the Charge or Grant might have been thereby made certaine and infallible but where the Fee-simple is in Abeyance and albeit by possibility it may every houre come in esse yet it is altogether uncertaine when or whether ever or never that may happen In such case the Fee-simple cannot be charged untill it come in esse so as it may be certainly charged or aliened As if a Lease for life be made the Remainder to the right Heires of I.S. Here the Fee-simple cannot be charged or aliened before I.S. be dead in case I.S. dye living the Tenant for life Co. ibid 378. a. 3. but if the Tenant for life happen to dye before I.S. then is the Remainder vanished and gone because it cannot immediatly vest after the death of the Tenant for life Second deliverance 74. Vpon a second deliverance the Defendant being a Widow justifies by an estate for life if she so long continue a Widow Dyer 142 51 c. 3 4. P. M. and averreth not that she is the same woman to whom the estate was made nor that she is still a Widow for which uncertainty and others concerning the place where the Cattell were taken the Plaintiff had Iudgentent c. Inquisition 75. Inquisitio capta apud D. of Land in S. Dyer 208 19. 3 4. Eliz. without shewing in what County either D. or S. is was adjudged insufficient for the uncertainty because upon a Traverse it could not be tryed for want of the knowledge where the Venue should be taken Dyer 254. b. 1. 9 El. 76. In debt for rent arreare the Plaintiff counts Debt for rent arreare that his termor devised to the Defendant the terme and dyed and that the Defendant entred and was possessed and that for arreare of rent the Action accrued to this the Defendant demurs 1. because he hath not alleadged that the Devisor made Executors and that the Defendant entred with their agreement 2. For that he saith not vertute cujus legationis the Defendant was possest for which uncertainties the Count was adjudged insufficient for if the Defendant were in of any other estate or title then as Assignee of the Lessee an Action of debt lyeth not against him for want of privity Dyer 264. 39 9. Eliz. 77. A new Assignment was in one Acre New Assignment terrae sive prati in campo vocat N. the Defendant pleads not guilty but for the uncertainty whether Land or Meadow and also because there was no abuttalls the Iury were discharged Hob. 2. Axworths case 78. In an Action upon the case by Thomas against Axworth Slander the words were This is John Thomas his writing innuendo the Plaintiff and he innuendo c. hath forged this Warrant the Sheriffs Warrant at the Suit of M. Hog against the Defendant Innuendo And in this case it was held that the Innuendo would not support the Action the word Warrant alone being of an uncertaine sense and the matter of the Action shall not be enlarged or ascertained by the Innuendo as Pox innuendo the French Pox. Vide Hob. 6. Miles case 45. Harvies case Hob. 38. Dawtries case 79. Office An office was found by Commissioners after the death of William Dawtry whereupon a Melius Inquirendum went forth and recited but thus Cum per quandam Inquisitionem captam apud Chichester c. and doth not say that it was either by Commission or Writ or before whom and it was held void for the uncertainty and the office also that was taken upon the Melius for by the Melius it ought to appeare that the first office was by warrant c. Hob. 89. Rich and Shere 80. In an Ejectione firmae the Plaintiff counts of a Messuage c. Ejectioâ—e firma with Appurtenances called Dizard in Cornewall to hold for five years the Defendant pleads not guilty whereupon the Plaintiff had Iudgement And the Defendant assignes for Error that the Plaintiff had not shewed in what Towne Parish Hamlet or place the Messuage lay but in the generall County and thereupon the Iudgement was reversed in the Exchequer Chamber 13. Jac. for here was a tryall without a Visne Hob. 90. 81. Vide Hob. 90. Keere and Owen upon an Elegit Elegit Error for omitting the Entry
and then shall take their remedy over Detinue for writings 24 Regularly Co. l. 1 2 3 in the Lord Buckhursts case the writings that concern land belong to the owner of the land and are to be kept by him yet if I am infeoffed to me and my heirs and I enfeoff another to him and his heirs with warranty my heir shall have a Detinue for the déed by which I was infeoffed and shall Count specially viz. upon the special matter in respect of the special loss and prejudice which he may have for want of the déed in case he should be vouched upon the warranty which I made to my feoffée Vide 10 E. 4. 9. b. Rent extinct 25 Tenant in tail remainder in tail Co. l. 1. 62. b. Caples case he in remainder grants a rent charge out of the land and then Tenant in tail in possession suffers a recovery In this case the rent is extinct and gone for it were inconvenient that the land should be subject to the charges both of the tenant in possession and of him in remainder also as to be charged with the statutes or recognisances of tenant in tail and also of him in remainder simul et semel whereas tenant in tail in possession having power to dock both his own estate and the estate of him in remainder by possibility it might never come in possession to him in remainder Fraudulent Conveyances 26 Where a man conveyes his land to the use of himself for life Co. l. 3. 82. b. 2. Standen Bullocks case in Twines case per Warmsley Just from Sir Ch. Wray Ch. Just per tot cur and after to the use of divers others of his blood with future power of revocation as after such a feast or after the death of such a man and afterwards and before the power of revocation commenced he for a valuable consideration bargains and sells the land to another and his heirs this bargain and sale is within the remedy of the Statute of 27 Eliz. cap. 4. for albeit the Statute saith The said first conveyance not by him revoked according to the power by him reserved which séems by the literal sence to be meant of a present power of revocation for no revocation can be made of a future power until it come in esse yet it was held that the intent of the Act was that such voluntary conveyance which was originally subject to the power of revocation be it in praesenti or in futuro shall not stand against the purchasor bonâ fide for valuable consideration if any other construction should be made the said Act would serve for little or no purpose for then it would be no hard matter to evade it So likewise if A. reserve a power of revocation by the assent of B. and after A. bargains and sells the land to another this bargain and sale is good and within the remedy of the said Act for otherwise the good provision of the Act by a small addition and knavish invention might be defeated The like 27 In 38 Eliz. in C. B. betwixt Lee and his wife executrix of one Smith plaintif and Mary Colshil executrix of Th. Colshil defendant Co. l. 3. 82. b. 4. Colshils case reported in Twines case in debt upon an obligation of 1000 marks Rot. 1707. The case was this Colshil the testator had the office of a Customer by Letters patents to him and his deputies and by indenture betwixt him and Smith the testator of the plaintif and for 600 l. paid and 100 l. per annum to be payd during the life of Colshil makes deputation of the said office to Smith and Colshil covenants with Smith that if Colshil dye before him that then his executors should repay unto him 300 l. and divers covenants were in the said Indenture concerning the said office and enjoyment thereof and Colshil was bound to Smith in the said obligation to perform covenants and the breach was alleged for the non-payment of the said 300 l. for that Smith survived Colshil And albeit the said covenant to repay the 300 l. was lawfull yet in as much as the residue of the covenants were against the Statute of 5 Ed. 6. cap. 16. the obligation was adjudged voyd because if the addition of a lawfull covenant should make the bond of force as to that the Statute would serve for little or no purpose Vide plus ibid. Co. l. 4. 122. b. 4. in Bustards case 28 The Rule of Law is Exchange that exchanges ought to be of equal estates and yet if A. hath a reversion in fée of an acre of land expectant upon an estate for life and makes an exchange with B. by déed indented and gives this acre by name of an acre of land and not by the name of the reversion in exchange for another acre In this case albeit B. expect to have the acre so given to him in possession yet in as much as nothing passes by the grant of the acre of land but the reversion the warranty or condition in Law annexed to the exchange cannot by the Law extend to more than passed by force of the exchange for they are incident and annexed to the estate which is given and cannot extend to the franktenement which was in the lessée because if the Law should be otherwise great mischief would ensue for if an exchange be made of divers Manors and peradventure divers parcels of them are in lease for life In this case if the exchange should be voyd because it was not made as of a Manor in possession that would avoid all such exchanges which would be mischievous and there can be no mischief on the other part for when the tenants for life are in possession of the Land it will be imputed the laches and folly of the purchasor that he did not discover it by Survey or some other enquiry Co. l. 5. 90. a. 2. in Hoes case 29 Regularly all writs directed to the Sherif ought to be returned Executions for so the Sherif is by them commanded to do if a Capias in process be not returned the arrest is tortious so likewise an Elegit because the extent is to be done by an Inquest and not by the Sherif alone if it be not returned it is not valid nevertheless in all writs of execution when the Sherif alone doth it as Capias ad satisfaciendum habere facias possessionem or seisinam fieri facias Liberate c. if the execution be duly made it is valid albeit the writ be not returned for if the non-return of the writ by the Sherif should cause new execution to be had against the defendant and should leave him to his action against the Sherif that would tend much to the prejudice of the defendant whose goods are already sold by the writ and process of Law for the satisfaction of his debt Again if the sale of the goods by force of
drawes right of property 225. followes the possession 227. may be forfeited 237. preferred before the possession 372. where extinct Et e contr 440. cannot incorporate with wrong 567. favourably expounded 502. cannot dye 504. Present or future may be barred 485 Robbery 110 Return The Court cannot proceed upon a-False returne 272 S. SAles not good upon the Lords day 8. by the Sheriff 707 Scandal magnatum 87 Seisin 668. payment of Rent by a Term or is no seisin 58. 287. 363. 548. 593. Presentment of the grantee a good seisin for the grantor in a Quare Impedit 191. not traversable 287. of a Rent by the Feoffor 421 Scire facias 160 613 690. When shall issue out when not followes the Record 229 Seales 743 Seizure of a villaine 162 Seigniory 263. suspended 361. 443. Sheriffs 244. must take notice who are in Execution 420. Where they may break up a house to deliver Execution or Seisin 678 Sewers 685 49 Socage lands deviseable 35 Subsidies uncertain made certain by circumstances 407 Surrenders 235 603. By Attorney 152 after a grant of a rent 164 intire 260 in Law 472 447 450 Suspence Seigniory suspended not grantable 56 personall things once suspended ever gone 154 Statutes what binde the King 13. subsequent expounded by equity of former 23 220 Interpretation of them 24 142 Of 32 H. 8. of pretenced rights 326 388 That abridge liberty how taken 355 taken by intendment 501 Stewardship 300 Services Intire 262 263 Divine 285 Summons and severance 337 574 T. TAil what things may be intailed 358 Void for incertainty 405 docked by recovery value 414 Tales 507 Terme not extinct by purchase of the Fee 335 not drowned 339 Tempus sem how to be accounted 12 Tender Of marriage 91 687 of amends 259 of mony to a stranger 200 Upon a mortgage 375 Excused 570. of Livery by the heire 610. Tender and refusall 470. â—or the Redemption of a mortgage by the Guardian 497. For an ideot 497. by a straner where saves a forfeiture 485. of the demy marke 677 Of the debt in Court 689 Tenant by the curtesie 41 581 Tenant in tail 313 550 cannot grant any remainder of his estate 57 barred by a common Recovery and how not 130 131 Tenant in Frankalmoigne 149. cannot disclaime 104 is not to be distrained for Arreares 106 Tenant Right 214 Tenants in common 244. shall joyn in Assise 545 where joyne where sever in actions 611 Tenant in tail after possibility c. 450 Tenant for anothers life 578 Tenant at sufferance 453 Tenures In capite 61. 142. In socage 97 136. not extinct by purchase of part of the Land 507 Treason 110 Treasure none can dispose of the Kings treasure without licence 303 304 Trade what it is 139 Traverse not without an office found 72. the place not to be traversed in personall actions 382. Traverse upon a traverse 618 Trespass 268. for oppression in the Common 387 Trees 231 Tryall in a forrain county 224 of villainage 351. of a Peer in Ireland 497. Per medietatem lingue 472 Trover brought by a Lunatick 427 Trusts where they shal go to executors 187 V. VAriance betweene the originall and judgment 637. in circumstances no prejudice 384 Between the writ and the count 636 637 Valore Maritagii 716 Verdict intire 261 in criminall causes not privy 353 where at large 604 708. incertain is insufficient 624. 631. 632. 648. where voided by acts done by the Jurors 697 Et e contr Villain 37 292 337 765 764. may sue his Lord 282 by Confession 419 may give his goods before seisure 666 View of the vouchee 92 Voyage royall 61 Voucher 92 449 of the heir and the younger Son 110 475. Of the assignee 169 in dower 194 Vsurpation 310 318 upon an Infant 444. Vnity of possession doth not extinguish partition 150 Vses 349. Revoked 72 of a recovery after it is suffered declared 109 regarded as E states 202 superstitious draw good uses 231 good and charitable to be preferred 740 741 752. introduced inconveniences 748 Declaration of them 771 good and superstitious how they shall operate 628. W. WAger of Law 429. 644. 697. 714. 716 419. Not by a prisoner for meat and drink 669. Where not in account and where in debt upon a Bond 51. Not by an Infant 94 Wardships 700. 713. the husband after the death of his wife guardian shall loose it 37. The second ward shall not sue Livery 37. Revived 40. No Wardship because the tenure begins in the Sons 61. of an use 111. Where though not dying seised 142. Not during the Fathers life 277 278 Way 377 Warrants 366 Waiver of goods To whom the goods belong 501. 502 Warranty 238. 314. 326. No bar e contra 20 256 340. Collaterall and Lineall 39. 163. 283 402. 648. Which commenceth by disseisin 45. 63. 144. 187. 250. 564. 617. 619. The Heire not bound to warranty where the Ancestor was not 57. Makes a discontinuance 99. Extinct 118. May increase upon an Estate granted 119 Determined 124. What words imply it 124. void 124. Without the word Heires 187. Implyed in Exchange and partition 191. For life only 206. Followes the Land 250. Intire 256. 262. Deraignment of it 535. Annexed to incorporeall things 411. With Assets bindes the King 411. Expresse and implyed 447. By Husband and wife 555. Continues after Partition 577 Warrantia Charta 157. 469. 719. Not after a Recovery in value 410 Waste 37. 141. 143. 334. 574 465 700. 728. 729. 750 751. 582. By him in the remainder maintainable where 39. Et e contra In Cole mines not opened 67. 573. Against Tenant in Dower and by the curtesie 188. Against the Guardian 575. Successor not charged with it 451. Women Not sworne in Leets 318. Withernam 560 Wills Void 74 Of an Infant when 85. Repugnant void 243. Revoked by marriage 465 Witnesses 453 Writings in parchment or in paper 393 Words In Grants needlesse 245. Of inferiour Ranck exclude them of higher 270. Construed in the mildeâ— sense 704. Generall Imply no certainty 635 636 Writs Of Customes and services 18 317. not to be changed without Act of Parliamen 68. De secunda superoneratione 273. Of Right oâ— Advowson 294. Of Mesne 371. 380. 445. Of Entry upon an Advowson 421. Oâ— Disceit 560. To the Bishop 112. Adversaâ—ia amicabilia and their difference 482 Where to be brought 496 Wreck 489. FINIS
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
case and the Earle of Leicesters case Plow 400 c. Quae malo sunt inchoata c. A void presentment Fitz. 35 f. 6. 32 A presentment made by a stranger to an Advowson which is appropriate to an Abbey is void be the presentment in the Abbots time or during the vacation and albeit the Clerke be afterwards admitted instituted and inducted yet that cannot make the presentment which was void at first to take effect For Quod initio non valet c. It is otherwise if the Abbot himselfe present c. Co. l. 1. 15. b. 3. Sir William Pelhams case 33 A tenant for life remainder in tail remainder in fée bargains and sels the land in fée to B. who after the Statute of 32 H. 8. cap. 31. A void recovery and forfeiture by tenant for life and before the Statute of 14 El. cap. 8. suffered a recovery wherein A was vouched and vouched over c. and after Iudgement was entred and execution sued upon that recovery yet was the entry of the tenant in tail adjudged congeable for albeit the recovery was not had immediately against A. yet was it adjudged a forfeiture within that Statute of 32 H. 8. and then the suffering of the recovery being a forfeiture it could not afterwards be salved by entring Iudgement and suing execution thereupon Co. Inst pars 1. 46. a. 4. 34 If the Patron grant the next avoydance and after Parson A void grant of Glebe Patron and Ordinary before the Statute had made a lease of the Glebe for yeares and after the Parson dieth and the grantée of the next avoydance had presented a Clerk to the Church who is admitted instituted and inducted and dieth within the terme the Patron presents a new Clerk who is also admitted instituted and inducted here albeit he commeth in under the Patron that was party to the Lease and was Admitted Instituted and Inducted yet because the Lease had no good beginning but was avoided by the Grantees Incumbent who had the whole estate in him it shall not be againe revived but shall be extinct for ever and shall not be maintained against the last Incumbent Co. Inst pars 1 31. b. 4. 35 If a man be Tenant in general taile The last feme not endowed and take a wife and hath issue by her and she dies and after he taketh another wife and dies the last wife shall be endowed because she may have issue which by possibility may inherit But in this case if the husband during his first wives life alien the land in Fee and takes an estate back to him and his wife and the heires of their two bodies and the wife dies the second wife shall not be endowed because during the Coverture when her Title of Dower should take beginning he was seised of an estate taile special and yet here also the Issue that he may have by the last wife is inheritable Co. ibid. 9. a. 1. 36 B. having divers sonnes and daughters Grant to children before birth not good A. giveth lands to B. liberis suis and to their heires the Father and all his Children do take a Fee simple joyntly by force of these words their heires but if he had no child at the time of the Feofment the Child or Children born afterwards shall not take Dyer 58. a. 4. 35 H. 8. 37 Cestuy que use after the Statute of 1 R. 3. 1. Cestuy que us◠and before the Statute of Uses makes a Lease for yeares and after during the terme makes Feofment of the land and gives Livery c. In such case nothing passed by such Feofment because he had nothing in Vse or Possession and then the Statute of R. 3. would not aide him 29 Quod non habet principium non habet finem Where there can be no presentment by lapse 1 If the Bishop be named in the Quare impedit Co. Inst pars 1 344. b. 4. he shall never afterwards present by lapse and then shall neither the Metropolitan nor after him the King do it For the Bishops presentment falling which was to be the first step and begining their power of presenting which should successively follow his must néeds also fail according to the Rule Quod non habet principium non habet finem Right without action no remitter contra 2 Regularly a man shall not be remitted to a Right remedilesse Co. ibid. 349. a. 4. for the which he can have no action And therefore Littleton saith Sect. 661. that the principal cause of a Remitter is when the issue hath no person but himselfe against whom he may bring his Action by which it appeareth that he ought to have just cause of Action for neither an Action without a Right nor a Right without an Action can make a Remitter as if Tenant in tail suffer a Common Recovery In which there is error and after the Tenant in tail disseiseth the Recoveror and dieth here the issue in tail hath an action viz. a Writ of Error but so long as the Recovery remaineth in force he hath no Right and therefore in that case cannot be remitted Idem 3 If B. purchase an Advowson Co. ibid. 349. b. 3. and suffereth an usurpation and six Moneths to passe and the usurper granteth the Advowson to B. and his heires B. dieth his heire is not remitted because his Right to the Advowson was remedilesse viz. a Right without an Action 4 Vide infra M. 38. 1. 7. and 162. 49. Co. Inst pars 1 31. a. 4. 30 He that claimeth Paramount a thing shall never take benefit nor hurt by it Dos de dote peti non potest 1 If there be Grandfather Father and Son Co. Inst pars 1 32. a. 4. and the Grandfather is seised of thée acres of land in fée and taketh wife and dieth this land descendeth to the Father who dieth either before or after entry now is the wife of the Father dowable yet shall she have the thirds but of two acres onely and the wife of the Grandfather shall have for her Dower the other acre intirely because the Dower of the Grandmother is Paramount the Title of the Fathers wife and the seisin of the Father which descended to him be it in Law or actual is defeated and now upon the matter the Father had but a Reversion expectant upon a Fréehold and in that case Dos de dote peti non potest although the Grandmother die living the Fathers wife Dower according to the improved value 2 If the wife be entitled to have Dower of thrée acres of March Co. Inst pars 1 32. a. 3. every one of the value of twelve pence per annum the heire by his industry and charge maketh it good meadow viz. every acre worth ten shillings per annum the wife shall have her Dower according to the improved value and not according to the
granted in the time of Quéen Eliz. Quaere whether or no the Extent was returned without warrant Errour 78 In debt the Iudgment was reversed Dyer 130. 58. 6 Eliz. because there was no warrant of Attorny entred and this albeit the Writ of Error was brought the same terme the record remaining still in the breasts of the Iustices and the Plaintiff had prayed entry thereof Note that both the first Action and the Writ of Errour were brought in Banco Regis Lease void 79 The Provost of Wels being Parson imparsonee of the Parsonage of Winsam leaseth the tithes for fifty years rendring rent Dyer 239. 40. 7 Eliz. which was also confirmed by the Deane and Chapter but not by the Patron and Ordinary the Provostship was by Parliament united to the Deanary cum primo vacare contigerit The Provost dies the Deane accepts the rent yet the lease is not affirmed by such acceptance for the Provosts lease was void by his death as it is of a Parson or Prebend It was otherwise of a Bishop Deane Abbot c. which were elective and before the Statute of 1 Eliz. not printed might make discontinuance but if the lease above had béen for life it had not been void before entry Also the acceptance above was to no purpose for the reversion was determined and the name of succession altered As if Tenant in Dower or other particular Tenant make a lease and die and he in reversion or remainder accept the rent this is no affirmation because the reversion is altered 80 Hob. 10 Doctor Leyfield against Tisdale 41 Things incident are adhaerent to their Superiours or Principals Deeds c. in whose custody to remain 1 A man seised of Lands in fee hath divers Charters Deeds Co. inst pars 1. 6. a. 2. The Lord Buckhursts case Co. l. 1. 1 2. and Evidences and maketh a feoffment in fee either without warranty or with warranty onely against him and his heirs In this case the Purchaser shall have all the Charters Deeds and Evidences as incident to the lands ratione terrae to the end he may the better defend the land himself having no warranty to recover in value for the evidences are as it were the sinews of the land and the Feoffor being not bound to warranty hath no use of them But if the Feoffor be bound to warranty so that he is bound to render in value then is the defence of the title at his peril and therefore the Feoffee in that case shall have no deeds that comprehend warranty whereof the Feoffor may take advantage Also he shall have such Charters as may serve him to deraign the warranty paramount Likewise he shall have all Deeds and Evidences which are material for the maintenance of the title of the land but other evidences which concern the possession and not the title of the land as Court Rolls c. the Feoffee shall have them as concomitantia incidentia to the possession Land on the part of the mother 2 If a man seised ol Lands as heire of the part of his Mother Co. Inst pars 1. 12. b. 4. maketh a feoffment in fee reserving a rent to him and to his heirs this rent shall go to the heirs of the part of the Father vide N.B. 40. 70. but if he had made a gift in falle or a lease for life reserving a rent the heire of the part of the Mother shall have the reversion and the rent also as incident thereunto shall passe with it but the heire of the part of the Mother shall not take advantage of a condition annexed to the same because it is not incident to the reversion nor can passe therewith The like for service 3 If a man had been seised of a Mannor Co. ibid. as heire on the part of his Mother and before the Statute of Quia emptores terrarum had made a feoffment in fee of parcell to hold of him by rent and service albeit they be newly created yet for that they are parcell of the Mannor they shall with the rest of the Mannor descend to the heirs of the part of the Mother quia multa transeunt cum universitate quae per se non transeunt Co. ibid. 4 If a man hath a Rent-seck of the part of his Mother The like for distresse and the Tenant of the land granteth a Distresse to him and his heires and the Grantee dieth the Distresse shall go with the rent to the heir of the part of the Mother as incident or appurtenant to the rent for now is the Rent-seck become a Rent-charge Co. ibid. 19. b. 3. 5 By the Statute of Westm 2. The land incident to the tenant in tail the land is as it were appropriated or incident to the Tenant in tail to the heirs of his body and therefore if an estate be made either before or since the Statute of 27 H. 8. cap. 10. to a man and the heirs of his body either to the use of another and his heirs or to the use of himselfe and his heirs this limitation of use is utterly void for before the said Statute of 27 H. 8. he could not have executed the estate to the use P. 14 Jac. in B. R. And so it was adjudged in an Ejectione firmae between Cooper Plaintiff and Franklin c. Defendant Co. ibid. 22. b. 3. 6 The possibility of having heirs to inherit is so inherent and incident to a man as long as he lives A remainder to a mans right heirs is a limitation to himselfe that it cannot by any act of his be severed from him during his life except when his blood is corrupt by attainder T. 23 Eliz. Fenwick and Mitfords case c. And therefore at this day since the Statute of 27 H. 8. cap. 10. If a man seised of lands in fee make a feoffment in fee and depart with his whole estate and limit the use to his daughter for life and after her decease to the use of his sonne in taile and after to the right heirs of the Feoffor In this case although he departed with the whole Fee-simple by the feoffment and limited no use to himselfe yet hath he a reversion for whensoever the Ancestor takes an estate for life and after a limitation is made to his right heirs the right heirs shall not be purchasers And here in this case when the limitation is to his right heirs and right heire he cannot have during his life for non est haeres viventis the Law doth create an use in him during his life untill the future use cometh in esse and consequently the right heirs cannot be purchasers And there is no diversity when the Law creates the estate for life and when the party And if the limitation had béen to the use of himselfe for life and after to the use of another in taile and after to the use
betwixt them Co. ib. 209 a. 2. 132 If a man be bound to A. in an Obligation with condition to enfeoff B. who is a meer stranger before a day The like the Obligor doth offer to enfeoff B. and he refuseth Here the obligation is forfeit for the Obligor hath undertaken to enfeoff B. and there wants privity betwixt him and B. But if the feoffment hâ—d béen to be made to the Obligée himself or to any other for his behoof a tender and refusal shall save the Bond because of the privity betwixt them So likewise if A. be bound to B with condition that C. shall enfeoff B. In this case if C. tender and D. refuse the obligation is saved for it shall be intended that the feoffment should be made for the benefit of the Obligee which implies privity Co. ib. 245. a. 4. 133 A strangers entry of his own head upon the Bastard eigne to the use of the Mulier Bastard â—â—lier entry is not good without the Muliers consent thereunto afterwards Howbeit the entry of the Guardian in soccage or chivalry of their own heads without the Muliers assent is good to avoyd the title of the Bastard eigne because of the privity for they are no strangers Dyer 29 a. 194 28 H. 8. 134 Tenants in Common cannot make partition without deed Partition but Coparceners may because they are privies and as one heir and by consequent have a three-fold privity viz. in estate person and possession Vide suprà 130. 135 Vide Max. 114. c. 58. Hob. 130. Oates and Frith 56 Equal things cannot drown one another contrà Co. Inst pars 1 273. b. 3. 1 If a man make a lease for ten years the remander for 20 years A release of Lessee for years to Leâ— for years he in the remainder releaseth all his right to the Lessee for ten years In this case the Lessee for ten years hath an estate for 30 years for one chattel cannot drown another neither yet can yeares be consumed in years â—estate taile â—not drown 〈◊〉 be extinct 2 If a gift be made to the eldest son and to the heirs of his body Co. ib. 372. a. 4. the remainder to the father and to the heirs of his body the father dieth the eldest son levieth a fine with proclamations and dieth without issue Co. l. 2. 61. a. in Wiscots case this shall barre the second son because the father while the remainder was in him might by levying a fine have barred the youngest son of taking any benefit by it and therefore when the remainder descends to the eldest son a fine levyed by him shall also be of like force to bar the youngest for that an estate tail can neither drown nor be extinct because such an estate was Fee-simple at the Common Law and may by possibility endure for ever â—ease for life â—y uphold a â—se for years 3 If a man letteth lands to another for life Co. Inst pars 1. 54. b. 4. the remainder to him for 21 years he hath both estates in him so distinctly as he may grant away either of them for a greater estate may uphold a lesse in the same person but not è conversò and therefore if a man make a lease to one for 21 years the remainder to him for term of his life the lease for years is drowned c. â—ond annuls â—ontract and Judgment a â—nd 4 A Statute Staple or obligation in nature thereof Co. l. 6. 45. in Higgins case is but an obligation recorded and an obligation be it of record or not of record cannot drown another obligation but if a man hath a debt by simple contract and he takes an obligation for the same debt or any part thereof the contract is determined 3 H. 4. 17. 11 H. 4. 9 E. 3. 50 51. So when a man hath a debt upon an obligation and by ordinary course of Law hath judgement thereupon the contract by specialty which is of a meaner nature is by judgement of Law drowned and changed into a matter of record which is of an higher nature c. Vide 61. 7 8. â—xtinguishâ—ent of a Seigniory 5 If the Lord be Guardian of the land Co. Inst pars 1 367. a. 3. or if the Tenant maketh a lease to the Lord for years or if the Lord be Tenant thereof by Statute Merchant Statute Staple or Elegit and maketh a feoffment in fée of the land to a stranger he doth hereby extinguish his Seigniory because by his own act he hath vested the Seigniory and Tenancy into one hand by which means the tenancy is drowned which before was but in suspence So if there be Lord and Tenant by fealty and rent Co. l. 6. 70. a. 3. in Sir Moyle Finches case and the Lord disseise the Tenant of the land and make feoffment in fee to another hereby the Seigniory is extinct â—here joynâ—ancy may 〈◊〉 merged â—d where â—ot 6 If a man make an estate to thrée and to the heirs of one of them Co. l. 2 61. a. in Wiscots case there the one of them hath Fée-simple yet the Ioynture continues for it is all but one estate created at the same time and therefore the Fée-simple cannot merge the Ioynture which took effect with the creation of the remainder in fée but when 3 are Ioyntenants for life and after one of them purchaseth the fée or the fée descends upon him there the Fée-simple mergeth the estate for life and severeth the joynture for the estate for life was in esse before and may be merged or surrendred but so cannot the estate for life in the first case c. Vide Pl. ibid. â—enure exâ—ct 7 Land was held of the Archbishoprick by Knight-service Dyer 154. 18. 4. 5 P. M. and in the time of E. 3. this land was given by fine to one Strangwayes in tail the remainder in fée to E. 3. the tenant in tail dies his issue within age In this case by Sanders and others if the King will accept of the remainder the issue shall hold of none nor be in ward to any because the tenure and service are goue and extinct by the Kings Fée-simple â—chy of Lanâ—ster 8 After the Duchy of Lancaster came into the Kings hands Dyer 209. 22. 3 Eliz. albeit the revenue were kept several yet per nomen Regis nomen Ducis dimergibatur for he could not be Soveraign and Subject too Vide 3 H. 6. 57 Things are to be construed Secundum aequalitatem rationis Finch 20. Bract. l. 1. c. 3. 1 This Rule in Law imports a logical vertue a kind of equity as Bracton calleth it where he saith Aequitas est rerum convenientia quae paribus in causis paria jura desiderat omnia bene coaequiparat Et dicitur aequitas quasi aequalitas whose nature is to amplifie inlarge and add to the letter of
time of his death and by consequent the determination of the Lease thereupon the Lease is good ab initio Notwithstanding that uncertainty c. Videl 6. fol. 34 35. in the Bishop of Bath and Wels Case Gant to one iâ— time of vaâ—ation good 4 In the time of vacation a Grant made to a Covent is void Littl. § 443. Co. Inst p. 1. 264 a. 1. because the body Politique which is capable is not compleat but wanteth an head yet if during the vacatlou a Lease for life or a Gift in tail be made the remainder to the Abbot and his Successors this remainder is good because it is possible there may be an Abbot before the particular estate be determined There is the like Law of a Mayor and Comminalty c. Aâ—tornment good though â—ncertaine 5 If A. grant the Reversion of black acre or white acre Co. ib. 310. b. 2 and the Lessée attorn to the Grant Here nothing passeth at the time of the Attornment and that also is onely good in execution and by the subsequent election of the Grantée yet is not this a void Grant nor the Attornment fruitlesse because upon the Grantées election they may both be made good c. A remainder â—ay râ—st in a person uncertaine 6 It is regularly true that every remainder Littl. §. 721. Co. ib. 378. a. 2. 3 4. which commenceth by a Déed ought to vest in him to whom it is limited when livery of seisin is made to him that hath the particular estate And yet if the person that is to take the Remainder be not in rerum natura as if a Lease for life be made the remainder to the right heires of I. S. I. S. being then alive it sufficeth that the inheritance passeth presently out of the Lessor but cannot vest in the heir of I. S. For that living his father he is not in rerum natura for non est haeres viventis neverthelesse the remainder is good for the possibility that I. S. may die during the life of the Lessée So if a man make a Lease for life to A. B. and C. and if B. survive C. then the remainder to B. and his heires here albeit the remainder is not at the time of the Livery certainly in B. neverthelesse the remainder is good for the possibility that C. may die before B. it being but a common possibility that one may die before another â—idem 7. If Lands be devised to I. S. for life Co. l. 1. 24. b. 4. in Porters Case upon condition that I. S. shall by the advise of Learned Counsel settle the same Lands within convenient time for certaine Vses which indéed are prohibited by the Statute of 23 H. 8. cap. 10. Albeit such Vses are by that Act prohibited yet if that Condition be not performed I. S. forfeits his estate because they might have béen setled by the advice of Learned Counsel and by purchasing an Incorporation and a licence to settle Lands thereupon c. He may rest in person â—â—certain 8 If I covenant with I. S. that in consideration of fatherly affection and for the advancement of my bloud Co. ibid. l. 1. 176. b. 4. Mildmayes Case I will stand seised to the use of such of my sonnes or such of my kindred as I. S. shall nominate In this Case upon the nomination the use shall be raised For the consideration is certaine and the person by matter ex post facto may be made certaine A possibility 〈◊〉 void â—ough not asâ—â—rable 9 A man possest of a term for divers yeares Co. ibid. L. 4. 66. b 1. in Fulwoods Case deviseth the profits thereof to one for life and after his decease to another for the residue of the yeares and dies the first Devisée enters by assent of the executor and after he in the remainder during the life of the first Devisée assignes it to another and after the first Devisee dies Here albeit during the life of the first Devisée the second Devisée had no estate that he could assigne over for the Devise to the first Devisee was upon the matter of all the term if he should so long live neverthelesse the second Devise is not void for the possibility that the second Devisée might over-live the first Howbeit that possibility he could not assigne over c. â—educement of a Lease to certainty 10 Every lease for yeares ought to have a certain commencement Co. ibid. L. 6. 35. b. 4. The Bishops of Bathes Case but that is to be understood when it is to take effect in interest or possession For if I grant to you that if you pay unto me 20 l. at Michaelmas next that then you shall have my Mannor of D. for 21 years here it is uncertaine whether that Lease shall ever have commencement or no for indéed until the payment of the money it is no Lease yet is it a good Lease in respect of the possibility that the money may be paid for then it will have a certaine commencement So also the continuance of a Lease for yeares ought to be certaine yet if a man lease the Mannor of D. to I. S. for so many yeares as I. N. hath in the Mannor of S. and I. N. hath 10 yeares in S. I. S. shall have so many in D So if a Lease be made to another during the minority of I. D. and he is ten yeares old that is a good Lease for 11 yeares if I. D. so long live for these two last Leases are by reference reduceable to a certainty In like manner if a man make a Lease from St. Michaelmas for so many yeares as I. S. shall name and I. S. names a certaine term in the life of the lessor this is a good lease for the possibility of rendring to a certainty by matter ex post facto viz. by the nomination c. Co. l 10. 50. b. 2 in Lampets ca. 15 H. 7. 10. Pl. Co. 55. a. Colv. and Biv Case 11 If land be given to a married man and a married woman Possibility of Marriage and the heires of their two bodies begotten this is a good estate taile for of necessity death will come and it is a common possibility that one may die before another that then the Marriage may insue c. 106 Id certum est quod certum reddi potest Co. Inst p. 1. 96. a. 2. 1 If a man hold of his Lord by shéering all his Sheep in his Mannor of D when the Lord keeps sometimes a greater number Service uncertaine in one respect certaine in another sometimes a lesse Here the service being referred to the number is uncertaine and if so then the tenant not distrainable for it for it is a Maxime that no distresse can be taken for a service that is not certaine but the service being referred to the Mannor is certaine and so is the tenant
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
transitory causes of Action the Plaintiff might alledge the same in what place or County he would should be subverted which ought not to be suffered and therefore the Iudges of both Courts allowed a Traverse upon a Traverse in that case And the wisdome of the Iudges and Sages of the Law have alwayes suppressed new and oblique inventions in derogation of the common Law whereupon it is said by the Iudges in one Book 38 E. 3. 1. we will not change the Law which hath been alwayes used and another saith 2 H. 4. 18. it is better that it be turned to a default then the Law should be changed or any innovation made Warranty that begins by Disseisin by an oblique grant 3. The Father Tenant for life Co. l. 5. 80. a. 1. Fitzherberts case the Remainder to the Son and Heire apparent in tail Leases to A. for years with purpose that A. should enfeoff B. unto whom the Father should release with Warranty all which is done accordingly this is a Warranty that begins by Disseisin for albeit the Warranty be not made at the time of the Disseisin which was upon the Feoffment to B. yet by construction of Law it shall be adjudged to be Warranty that begins by Disseisin this Warranty binds not because of the covin An oblique Grant of Colledge Lands void 4. The Master and Fellowes of Magdalen Colledge in Cambridge Co. l. 11. 73. b. 1. in Magdalen Colledge case grant an House in London to Queen Eliz. upon Condition that she within three moneths should convey it to Benedict Spinola and his Heirs who doth so accordingly this Grant of the Colledge is void by the Statute of the 13 Eliz. 10. and was not helped by the Statute of Confirmation of the 18 Eliz. 2. for it appeared that the intent of the Master and Fellowes was that they should convey the said House to Benedict Spinola and his heires and therefore that which they could not do de directo they attempt to do ex obliquo to grant it to the Queen and her Successors but upon Condition contained in the same Grant that the Queen within three moneths should grant the House to B. Sp. and his Heires so as it was by this device endeavoured that the Queen who was the Fountaine of Iustice should be made an Instrument of injury and wrong and of the violation of a pious and excellent Law which she her selfe had made for the maintenance of Religion advancement of learning and sustenance of poore people The like In 17 E. 3. fo 59. Co. ibid. b. 4. The Fryers Carmelites who had not then any place of habitation obtaine of one John Merite who was seised of ten Acres of Meadow holden of the Bishop of Winchester to have the said ten Acres of Meadow for a place of habitation for them and because John Merite could not grant unto them the ten Acres by reason of the Statute of Mortmaine by covin contrived betwixt Merite and the Fryers to oust the Bishop of his Seigniory Merite to evade the Statute of Mortmaine grants the ten Acres to the King his Heirs and Successors whereby the Bishops Seigniory might be extinct to the end that the King should grant them over to the Fryers which he did accordingly Howbeit because here there was a practice betwixt Merite and the Fryers to take away the Bishops Seigniory it was adjudged that the Charter should be repealed and that the Carmelites should be distrained to deliver it to be cancelled Lands purchased with the Kings money 6. In Term. Trin 24. E. 3. Rot. 4. in the Exchequer Co. l. 11. 92. b. 4. in the Earle of Devonshires case one Walter Chirton the Kings Customer had purchased certaine Lands with the Kings money and by covin had caused the Vendor to enfeoff his freinds in fee to defraud the King and yet neverthelesse took the Issues and profits of the Land to his own use and those Lands were by inquisition returned with the values into the Exchequer and there by Iudgement were seised into the Kings hands untill c. for albeit the estate of the Land was never in Chirton yet the taking of the estate in the name of others and he in the meane time receiving the profits thereof was all one as if he had taken the estate in his own name especially in the Kings case and the lands being bought with the Kings money Fraudulent Indictment 7. One Verney in the 34 H. 6. Dyer 245. 65. 8. Eliz. being in execution in the Fleet for divers debts as also for Fines to the King returned into the Exchequer caused himselfe to be indicted of Felony with an intent to confesse it and to have his Clergy and so to be out of the temporall Law and then to have his purgation and all this with purpose to defraud his Creditors c. And upon a Corpus cum causa all was removed into the Kings Bench Howbeit the King having notice of the Fraud by a privy Seale commands the Iustices to stay the Araignment c. 160. Rectum est index sui Obliqui Co. l. 10. 24. b. 2. 1. In the Case of Suttons Hospitall Sir Edward Coke excuseth himselfe from answering the Objections in that case at large being Excuse to answer objections as he saith for the most part of no great moment by producing manifest and fallible proofs of the validity of that Incorporation alleadging this Maxime for the ground thereof Rectum index sui obliqui Dyer 234. 16. 7. El. 2. In a Formedon in Descender Formedon a Fine with Proclamations levied in 30 H. 8. was pleaded in Bar and the issue being upon Nul tiel Record at the day the Tenant had the Record but in the Proclamations viz. 5 6 7 8. made in Trin. Terme the yeare of the King was omitted Howbeit because in Easter Terme before and Michaelmas Terme after 30 H. 8. was exprest of necessity it did follow that the said foure Proclamations were also made in the same yeare for they being right by consequence the others were right also And thereupon it was held that he had not failed of the Record 161. It disfavoureth Improbabilities Co. Inst p. 1. 25. b. 4. Co. l. 10. 50. b. 1. in Lampets case 1. If Lands be given to a man and a woman being not his wife Lands intailed and to the Heires males of their two bodies they have an Estate Taile albeit they be not married at that time so it is also where Lands are given to a man which hath a wife and to a woman which hath a husband and the Heires of their two Bodies they also have presently an Estate Taile for the possibility that they may marry But if Lands be given to two Husbands and their Wives and to the Heires of their Bodies begotten they shall have a joynt Estate for life and severall Inheritances viz The one Husband and Wife the one Moiety
defendant pleads Judgement barr to the bond That the plaintif hath recovered upon the same bond and that the judgement thereupon is removed by Error into the Kings Bench and was not yet reversed And this was adjudged a good plea because the judgement takes away the strength of the bond and if after judgement he might sue the same party upon the same bond he might do it infinitely and consequently the defendant might be infinitely amerced for upon every Iudgement the defendant shall be amerced and if he be a Peer of the Realm the amerciament is 100 s. and so the defendant might be infinitely amerced upon one and the same obligation which would be mischievous Et interest Reipublicae ut sit finis litium Co. l. 7. 43. Kenns case 17 A bill of reviver upon a bill of reviver shall not be suffered for the infiniteness Bill of reviver no more than a writ by Iourneys accompts upon a former writ of the same nature for so they might be had infinitely Barrettry 18 A Barrettor is in judgement of Law accounted one of the most dangerous and pernicious vermin in the Commonwealth Co. l. 8. 37. in the case of Barretry because whereas the Law endeavoureth to settle peace and amity and to suppress discord and contention he is seminator litium oppressor vicinorum suorum either by force and open Maintenance of possessions or the like or by fraud and malice under colour of Law as by multiplicity of unjust and feigned sutes Informations or the like to the end he may by that means enforce poor people ad redimendum vexationem to give him money or otherwise to compound with him c. A bitrement 19 Vpon an award albeit the parties do not discover all their differences to the Arbitrators so as they determine some C. l. 8. 98. a. 4. in Baspoles case and leave the rest undetermined yet the award is good because otherwise many Arbitrements might be avoided for the one or the other of the parties may conceal a trespass done to him or some other secret cause of action and so avoid the Arbitrement which were inconvenient for Expedit reipublicae c. Accord 20 Accords are much favoured in Law Co. l. 9. 79. b. 4. in Peytoes case because they prevent and compose sutes and controversies amongst neighbours Et concordiâ parvae res crescunt discordiâ maximae dilabuntur And therefore it was adjudged P. 3 sac rot 1033. that an Accord with satisfaction was a good plea in barr in Eden and Blakes case Fines 21 The general Statute of 32 H. 8. 36. Co. l. 11. 75. a. 1. of Fines shall bind the King though he be not named because it was ordained for the setling and quieting of estates and the prevention of debates and controversies in the Commonwealth in Magdalen College case Assets descended a barr 21 The Statute of Glocester in 6 E. 1. cap. 3. ordains Co. l. 52. b. 4. in Syms case Pl. Co. 110. Fulmerstons case that where tenant by the curtesie aliens his wives inheritance with warranty if assets descend from the heir he shall be barred for the value of the inheritance so descended and if lands after descend that then the tenant shall recover against the heir of the seisin of his mother viz. out of the residu of his mothers lands so much as the assets afterwads descended shall amount unto Here albeit at the making of this Act being in 6 E. 1. there were no intailed lands for all Inheritance was then viz. before Westm ◠being 13 E. 1. feesimple absolute or conditional yet intailed lands are since taken to be within the equity of the said Act of Gloc. but not to retain or recover the lands intailed but only the lands which should so descend because otherwise there would be occasion of new sutes and contention which the Law hates and abhorrs for if the tenant after assets descended might retain or recover the lands intailed then if the assets were aliened the issues inheritable to the estate tail might by writ of Formedon in descender recover the intailed lands again which would beget a new sute and no way answer the Intention of the said Act being indéed a good provision for féesimple lands but not for lands entailed without such a construction by equity as aforesaid And therefore in case of entailed lands so aliened with warranty the tenant shall have a Scire facias out of the Rolls of the Iustices before whom the sute depends to recover the lands descended according to the provision of the said Act of Glocester which in just and proportionable equity agrées with the case of the feesimple lands and the Intention of the same Act. Vide supra 15. 9. infra 186. 8. 179 Circuit of Action Co. Inst part 1. 265. a. 3. 1 Littleton saith § 446. If the father be disseised Rebutter and the son having only a possibility release to the disseisor without warranty such release is void Howbeit if there be a warranty annexed to the release then the son shall be barred for albeit the release cannot barr the right because the son had no right in the land in the life of the father yet the warranty may rebut and barr him and his heirs of a future right which was not in him at that time And the reason which in all cases is to be sought out wherefore a warranty being a covenant real shall barr a future right is for avoiding of circuit of action which is not favoured in Law viz. That he who made the warranty should recover the the land against Terre-tenant and then the Terre-tenant by force of the warranty should have as much land in value against the warrantor which course would occasion Circuit of action and more trouble than needs Mauxels case 7. b. Finch 2 Where the father enfeoffeth his son and heir apparent with warranty and dieth Voucher the son in a praecipe brought against him may immediately vouch his fathers feoffor for the Law will not suffer him to vouch himself according to Max. 54. and so when he comes in as vouchee he may darraign the first warranty to avoid Circuit of Action Finch fol. 14. Fr. Edit F. N. B. 18. f. 3 In false Iudgement against an Abbot the plaintif was non-sute False Judgement and the Abot had a Scire facias against the plaintif to shew cause why he should not have execution returnable quindena Paschae at which day the plaintif appears and assigns his errors and tenders security to sue cum effectu and prays a Scire facias against the Abbot ad audiendum errores and the opinion of the Court was that he might assign his errors against the Abbot without suing out any Scire facias against him Finch pag. 55. 4 In an action of waste upon a lease for years by déed Waste wherein the lessor granteth to the
by such defeasible title admit any of the Tenants upon surrender made to the use of another or gives admittance to the heire upon descent such admittances are good because grounded upon the custome of the Mannor and therefore such acts are lawfull and quodam modo judicial which he may be forced to do in a Court of Equity and for that cause such admittances will binde those that right have c. Copihold â—ce leased â—e custome is â—estroyed 41 If a Copihold estate be forfeit or escheat Co. l. 4. 3. 1. a. 3. Frenches case or otherwise fall into the Lords hands if the Lord make a lease for years thereof or for life or any other estate by déed or without déed or suffer if before any new grant thereof to be extended upon a Statute recognizance or the like or if the Feme of the Lord have it assigned unto her in dower c. In all these cases and the like the custome which supports the Copihold tenure being destroyed the tenure it selfe is also destroyed so that it shall never after be granted by Copie or holden by Copie of Court Roll Howbeit after it is so forfeited or escheated as aforesaid the Lord may kéep it as long as he please in his hands before he makes any voluntary grant of it and yet the Custome shall be preserved because it is all that while demised or demisable and so it ought to be by the Custome c. â—ease void â—on a void â—nsideration 42 The Kings patentée for years assigns divers parcells of the land to other severall persons still reserving to himselfe part thereof Co. l. 5. 94. a. 1. Barwicks case and takes another lease in reversion for 21 years the principall consideration whereof was the surrender of the old lease whereof he had assigned divers parcels to others as aforesaid And after 3 years of the last lease were expired in consideration of the surrender of the same last lease the King grants him another of all the same land for thrée lives In this case the last grant of the lease for lives was adjudged void because when the Patentee took the second lease the consideration thereof was the surrender of the first lease which could not be any good consideration for that he had before assigned divers parcels of the land to others and then the King was deceived in his Grant and by consequent the second lease was void Now therefore the surrender of the second lease which was void being the consideration of granting the last lease for lives that last lease being granted upon a consideration which was not valuable must néeds be void also â—meys acâ—ats 43 If a Writ abate for Non-tenure of all Co. l. 6. 10. a. 4. Spencers case the Demandant shall not have a new writ by Journeys accounts because the first writ was taken out without cause or ground 33 H. 6. but a praecipe of a Mannor being abated for non-tenure of parcell the Demandant shall have a Writ by Journeyes accounts because the Tenant is Tenant of the residue for which the Writ is brought and it were hard to force the Demandant to discover in whom the estate of every parcell of the Mannor stands 4 E. 3. 159. â—dable leaâ— 44 When voidable leases being void for a time Co. l. 7. 8. a. 2. The Earl of Bedfords case shall be ever after avoided and when not this difference is taken viz. when the interest of him that makes the avoydance is but for part of the terme so that after his interest determined a residue of the terme doth still remain and when he that makes the avoydance so avoyds the whole interest that no part of the terme at all doth remain after such avoidance As if Tenant in taile of Lands in Capite make leases not warranted by the Statute of 32 H. 8. 28. and die his heire being under age In this case although the King in right of the heir may avoid those leases for his time yet if after the Kings interest determined the heir accepts the rent they shall be thereby made good again But if the Patron of the Church of D. grant the prochein avoidance to another and after and before the Statute of 13 Eliz. the Parson Patron and Ordinary had made a lease for years rendring rent and the Parson had died and the Grantée had presented a Clerk who had béen admitted instituted c. in this case that lease had béen absolutely destroyed and the Successor although the Patron that was party to the lease present him shall avoid it c. Co. l. 8. 43. b. 4. in Whittinghams case 4 H. 6. fol. 2. 45 A man seized of certain Lands in right of his wife Deseasable 〈◊〉 states makes feoffment by déed indented of it to certain persons upon condition that they shall let the Land again unto the Baron and Feme for their lives with divers remainders over in taile the remainder to the right heirs of the Baron and after the Baron dies the Feoffées let the Land to the Feme for life the remainders over in taile the remainder to the right heirs of the Feme whereas it should have béen to the right heirs of the Baron In this case when the heir of the Baron enters for the condition broken by his entry the feoffment that made the discontinuance is defeated and so by consequence the discontinuance it self is defeated also so that the Feme may enter and shall be in as of her former estate Co. l. 8. 75. a. 3. in the Lord Staffords case per Coke chief Iustice 46 When one estate is to increase upon another estate by force of a condition precedent the first estate ought to be permanent Estates by â—â—cruer which may serve as a firme foundation whereon to build the future estate and not removeable at the will of the Grantor or Lessor And therefore if a man grant an Advowson to another at will upon condition that if he do such an act he shall have fée In this case the estate at will is no such foundation as the Law requires to support the encrease of an estate of Franktenement or Inheritance for the Grantor may determine his will before the performance of the condition and so avoid his owne grant and a Lease at Will cannot support a remainder over So likewise if a man grant an Advowson Rent c. for years upon condition if the Lessée within a yeare pay 10 s. he shall have for life and if he pay 20 s. within another yeare after he shall have fée the Lessée performs both conditions yet shall he have but for life for the estate for life at the time of the Grant was but in contingency which is no foundation upon which a greater estate may encrease because a possibility cannot encrease upon a possibility and the estate of Fee-simple cannot encrease upon the estate for years for that is drowned by the
accession of the estate for life Co. l. 8. 142. b. 1. in Doctor Druries case 47 If a man hath judgement in a Quare Imepedit Quare Iâ—â—dit Errour and hath a Writ to the Bishop and the Bishop refuseth to admit his Clerk Here the Plaintiff upon this collateral matter of refusall may have a Writ of Quare non admisit but if the Defendant reverse the Iudgement by a Writ of Error and after the Plaintiff in the Quare Impedit brings his Quare non admisit the Defendant may plead no such record and so bar the Plaintiff of bringing that Writ Vide 26 E. 3. fol. 75. per Wilby and Hill In like manner Execution Errour Escape if A. be taken by the Sheriffe in execution at the suit of B. upon an erroneous Iudgement and after make an escape and after the judgement is reversed by a Writ of Error the action upon the escape is lost c. Ibid. the principall case 48 If the return of an Exigent be erroneous Exigent â—â—neous the Outlawry which is grounded thereupon is erroneous also because the Writ of Exigent is the warrant by which they proceed to the Outlawry Vide Proctors case 5 Eliz. Dyer 223. Ibid. 143. b. 2. 38 H. 6. 4. 12. 49 One that had cause of priviledge in Banco is arrested in London Priviledge Supersedeâ— and delivers a Supersedias notwithstanding which the Recorder gives judgement and he is taken in execution and is thereupon removed in Banco by a Corpus cum causa And here because after the Supersedeas delivered there was a Nullity in the proceeding and judgement the Court without Writ of Error awarded that he should be discharged of the Execution c. Ibid. 143. a. 1. 50 If two Iudgements are given Two judgements The first dâ—feated and the last depends meerly upon the first as upon his foundation there if the first fundamental judgement be reversed by Writ of Error or Attaint the last which appears in the Record to depend upon it shall be reversed also as in Assise and Redisseisin so of a judgement upon the original and another judgment in a Scire facias so also of a judgement against the Tenant and another against a Vouchee and the like c. Conusee of a Statute 51 The Conusee of a Statute Staple in a writ of Detinue of the same Statute upon garnishment recovers by erroneous Iudgement against the Garnisee and hath the Statute delivered unto him Ibid. 142. b. 7 H. 6. 4â— a. the Garnisée brings a writ of Error Garnishment and the Conusee sues execution upon the Statute and hath it Here albeit the Garnisee reverse the judgement yet inasmuch as the Statute was executed that execution shall not be avoided by the reversall of the judgement because the judgement was onely to have the Statute delivered Judgement Execution and the Execution upon the Statute is a thing executed not at all depending upon the judgement And yet in this case by the opinion of Coke Chiefe Iustice the Garnisee shall have remedy upon the reversal of the judgement by an Audita quaerela Audita Quaerela because the cause and ground of the Collateral Action is disproved and annulled by the reversall of the first judgement and the first Plaintiff restored to his first action upon which he may have his first and due remedie Executors have execution The Will annulled 52 Executors have judgement in account Ibid. 143. b. 4. per Coke chief Justice and for the arrerages have the Defendant in execution and afterwards the Testament was annulled because the Testator was an Idiot and the Record spirituall was removed into the Chancery by Writ and then sent into the Kings Bench where the Action was brought And hereupon the Defendant brought an Audita quaerela Audita Quaerela for that the Testament was disproved and it was resolved in the Exchequer Chamber an 35 H. 8. that the Audita quaerela would well lie A Melius Inquirend erroneous 53 It was found by Mandamus 2 Jac. that P. S. held the Mannor of O. in Soccage of Qu Co. l. 8. 168. a. Paris Slaughters case Eliz. as of her Mannor of N. In 7 Jac. a Melius Inquirendum was awarded reciting the former office to enquire whether the Mannor of O. at the time of the death of P. S. was holden of the King in Capite c. whereupon an office was found that at the time of the death of P. S. the said Mannor of O. was holden of Qu Eliz. by Knight service as of her Mannor of N. and that at the taking of the inquisition it was holden of the King c. In this case the Melius was repugnant in it selfe because it was impossible for the Iury to finde the Mannor holden of King James at the death of P. S. which was in the fourth year of Qu Eliz. for then it must needs be holden of the Queen King James being then King of Scotland c. Now therefore albeit the Iury by the Inquisition had rightly found the tenure of the Mannor and that their finding thereof in that respect was good and according to the truth of the case yet because it was not warranted by the Melius which was the ground of their Inquisition all was adjudged insufficient and void and a new Melius inquirendum was awarded An Idiot examined in Chancery 54 A man that is found an Idiot from his nativity by office Co. l. 9. 31. b. 4 in the case of the Abbot of Strata Mercella may come into the Chancery and pray to be examined or by his friends he may pray to be brought thither and if it be found upon examination that he is no Idiot the office thereof found and all the examination which was by force of the Writ or Commission are utterly void without any traverse monstrance de Droit or any other suit Assumpsit deâ—eaâ—â—d 55 An Executrix in consideration Co. lib. 9. 94. a. 4. Will. Banes case that the Plaintiff will forbeare till Michaelmas to sue for a debt due by the Testator to the Plaintiff upon lone promiseth to pay it at Michaelmas and in an Action upon the case brought against her upon that promise pleads non assumpsit here the consideration of forbearance is good because although it be no benefit to the promiser yet is it damage to the Plaintiff And yet in this case if in rei veritate the debt were not due debt Per Coke chief Justice or the Executrix had not assets at the time of the promise she may give that in evidence and shall be thereupon ayded for then in truth there was not any consideration upon which the assumpsit might be grounded because to forbeare a debt which was not due or wherewith she was not chargeable could be neither benefit to the Defendant nor damage to the Plaintiff Co. l. 9. 139. a. 3.
being heir in appearance and he is not bound to dis-able himselfe â—â—ministratiâ—â—â—oid and â—â—able 6 If an Ordinary of a Diocesse commits Administration of Goods Co. l. 5. 29. b. 4. in Princes Case Were and Jefferies Case when they are bona notabilia such Administration is méerly void but Administration committed by the Metropolitan when the defunct had not bona notabilia is onely voidable because he hath Iurisdiction in all the Diocesses within the Province and therefore hath sufficient colour to do it Co. l. 6. 65. a. 3. in Sir Moile Finches Case 7 In 41 E. 3. 19. Rich. Tompson had Issue by Joan before mariage one Agnes and after he marries Joan and makes feofment in fée A Bastard takes by yâ— chase and retakes the Estate to himselfe for life remanere inde Agnetae filiae praedict Rich. Johanne and it was agréed that this was a good remainder without any averment that she was known to be their Daughter for albeit by the Common Law she was not their Daughter yet in as much as she had colour by the Ecclesiastical law which saith subsequens matrimonium tollit peccatum procedens this colour is sufficient in Case of a conveyance to make the remainder good and so note the diversity betwixt descent and purchase c. Co. l. 8. 101. per tout in Sir R. Lechfords Case The better opinion per Coke 8 If there be Bastard eigne and Mulier puisne Mulier beyonâ— sea c. and the Father die seised the Mulier being beyond Sea within age in Prison or of non sanae memoriae and the Bastard enter and continue in peacable possession of the Lands and hath Issue and dies and the lands descend to his Issue here the right of the Mulier is for ever bound because he hath colour of legitimation by the Law of Holy Church and the Common Law respects legitimation before the above-said Imperfections Vide plus ibid. Co. l. 10. 76. b. in the Case of the Marshalsea 9 If a Sheriffe holding his Torne after Michaelmas moneth takes there an Indictment of Robbery it is utterly void Things done by warrant contra being coram non judice But if the Court of the Common Bench in a plea of Debt award a Capias against a Duke Earle or c. which by the Law lyeth not against them and that appeares in the writ it selfe here if the Sheriffe arrest them upon the Capias albeit the writ be against Law yet because that Court hath jurisdiction of the cause the Sheriffe hath colour to do it and shall be excused and herewith accords Dier 60. b. 38 H. 8. So also if a Iustice of Peace make a warrant to arrest one for Felony who is not indicted albeit the Iustice erre in granting the warrant yet he that makes the arrest by force of that warrant shall not be panished by writ of false imprisonment because the Iustice is Iudge of the Cause Plow 83. b. 1. in Strange and Crokers Case 10 In 9 H. 6. it is said that if I grant to B. Maintenance that if my Tenant for life die during my life that then B. shall have the Land for 10 yeares Here if my Tenant be impleaded B. may lawfully maintaine in respect of the Colour of title he hath to the Land Co. Inst p. 1. 148. b. 4. 11 Entry into Religion and profession of a Disseisor shall not cause a descent to toll the entry of the Disseisée Bastard Mulier because it is the Disseisors owne Act and not the Act of God as death is yet if there be Bastard eigne and Mulier puisne and the Bastard before claime enter into Religion it is said such a discent shall toll the entry of the Mulier by reason of the colour of title that the Bastard had to the land and such an heire shall also have his age 114 It prizeth the Acts of God and of the Law more then those that are done by the party Co. Inst p. 1. 18. a. 4. 1 Fée-simple being as Littleton saith the largest Estate of inheritance that is Two Fee-simples one Fée-simple cannot depend upon another by the grant of the party as if Lands be given to A. so long as B. hath heires of his body the Remainder over in Fée here the Remainder is void yet in several persons by Act in Law a reversion may be in Fée-simple in one and a Fée-simple determinable in another by matter ex post facto as if a Gift in taile be made to a Villein and the Lord enter the Lord hath a Fée-simple qualified and the Donor a reversion in Fée but if the Lord enfeoffe the Donor now both Fée-simples are united and he hath but one Fée-simple in him â—â—ires female â—ill not take 2 When a man giveth lands to another man and the heirs female of his body dieth having issue a son a daughte◠〈◊〉 daughter shall inherit for the will of the donor the Stat. working 〈◊〉 it Co. ib. 24. b. 3 25. b. 3. 26. b. 4. which is upon the matter an act in law shall be observed but in case of a purchase it is otherwise for if A. have issue a son a daughter a lease for life is made the remainder to the heirs females of the body of A. A. dieth the heire female can take nothing because she is not heire for she must be both heire heire female which she is not because the brother is heire and therefore the will of the giver cannot be observed because here is no gift and therefore the Statute cannot work thereupon so it is if a man hath a son and a daughter and dieth lands are given to the daughter and the heirs female of the body of her father the daughter shall take nothing but an Estate for life because there is no such person she being not heire but where a gift is made to a man and to the heirs female of his body there the Donée being the first taker is capable by purchase and the heire female by discent secundam formam doni â—â—tes may 〈◊〉 altered 3 Regularly Estates cannot be altered from one to another Litt. §. 33. Co. ib. 28. a. unlesse all that have interest joine in the alteration thereof but by the Act of God estates may be changed without any act done by the parties that are interessed as if lands be given to a man and the heirs that he shall engender of the body of his wife here the wife hath nothing and the man is Tenant in special taile therefore in this Case if the Feme die without issue on her body begotten by the Baron the estate in special tail is by the act of God charged into tenancy in tail after possibility of issue extinct â—â—ging of â—â—tes 4 If a feofment in fee be made to the use of a man and his wife for the term
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