the sonne is not remitted for the Statute makes the possession in him as the use was before Howbeit it seemeth also that his issue shall be remitted because he claimes paramount the Statute viz. per formam doni for the estate tail is still in being and was not extinct by the Statute And in this case it is not material whether the sonne when he entred was at full age Dyer 54. b. 22. 34 H 8. or under age for it seems he is not remitted albeit he were then under age for if Tenant in taile make a feofment to the use of himselfe and his heires and the Feoffor dies his issue within age and then comes the Statute here the heire shall not be remitted but it seemes his issue may causa qua suprà Vide suprà 5. Dyer 54 b. 1. 34 and 35 H. 8 33 The Kings Tenant of lands holden in Capite before the Statute of Uses suffers a common recovery to the use of his sonne and heire apparant and his wife and of the heires of the bodie of the sonne Wardship after which Statute the sonne hath issue and dies the issue within age In this case the issue shall not be in ward during the life of the Feme for the ancient use of the Fee simple which was paramuont the Statute remaines still in the father albeit he expressed not any use in Fee simple and then by the Statute the possession was vested in the sonne and the feme as the use was and the Fee simple in the father as he was Donor of the use and not as one in remainder of a new Fee simple for that would have altered the case And in the same case if the father had covenanted that the sonne immediately after his decease should have had in possession or in use all his land according to the same course of Inheritance as they then stood and that all men seised or to be seised should stand seised to the uses and intents aforesaid yet the sonne should not be in ward for it had been but a Covenant which changeth not the estate of the Fee simple which was paramount the Statute as afore is said Emblements sown 34 If Tenant pur auter vie sow the land and Cestuy que vie die Dyer 316. 2. 15. Eliz. the Tenant pur auter vie shall have the crop So if the Baron sow the Femes land and the Feme die the Baron shall reap the crop Likewise if the Baron make feofment in fée to the use of himselfe for life the remainder to the use of the Feme for life with remainders over and the Baron sow the land and die his executors shall have the crop and not the Feme or Heire because death being the Act of God it could not be fore-séen or prevented Howbeit if the Baron make feofment in fée to the use of himselfe and his Feme for their lives with remainders over and the Baron sow the land and die the Feme shall have the crop because she was Ioyn-tenant with her husband and hath it by Title paramount the executor So if the Baron sow the land and die and the third part is assigned to the Feme for Dower she shall have the emblements therewithall because she is in of her husbands estate paramount the Title of the executor and likewise shall be endowed de optima possessione of her husband 31 Things are to be construed Secundam subiectam materiam Account by the Guardian 1 It hath béen a question much controverted in the books of the Law at what age of the heir Co. Inst pars 1 89. a. 1. Stat. of Marlebridge 52 H. 3. 17. a Guardian in Soccage was compellable to render an accompt whether at 14 or at 21. And the causes of that doubt have béen both upon the words of the Statute of Marlebridge cap. 17. and likewise upon the original writ of accompt against such a Guardian The words of the Statute are these Cum ad legitimam aetatem pervenerit sibi respondeat c. a 16 E. 3. Wast 100. c And legitima aetas is 21 yeares Also the writ of accompt reciting the said Statute saith Quare cum de communi concilio c. provisum sit quòd custodes c. in Soccagio haeredibus c. cum ad plenam aetatem pervenerint reddant rationabilem compotum c. c 16 E. 2. account 120. 17 E. 2. ibid. 121. c 2 E. 2. account 14 E. 3. ibid. 3 Mar. 137. Kelway 131. Pl. 16 El. Rot. 436. Littl. § 123. Whereupon it was gathered that no action of accompt did lie against the Guardian in Soccage at the Common Law untill the heire were of his lawfull and full age of 21 yeares But legitima aetas as the Statute hath it or plena aetas as the writ doth render it are to be understood secundam subjectam materiam viz. of the heire of Soccage land whose lawfull or full age as to the Custodie or Wardship is 14 and therefore upon consideration had of the said Statute and of all the Books it was adjudged in the Court of Common Pleas P. 16. El. rot 436. that the heire after the age of 14 yeares shall have an Action of accompt against the Guardian in Soccage when he will at his pleasure and with this agrées Littleton Sect. 123. Age of Infant to make a wil. 2 Because Littleton saith Sect. 123 that the Guardian in Soccage shall render an accompt of the mariage money to the heire or his executors some have inferred Co. Inst pars 1 89. b. 2. that an infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after his mariage he accomplish his age of 18 yeares he may then make a will and constitute executors for his goods and chattells for at that age he hath power by the Law to make a Will and the words are to be understood Secundam subjectam materiam and as they may stand with Law and Reason Vide suprà 15. 21. The Kings Councils 3 The King of England is armed with divers Councils Co. Inst pars 1 110. a. 2. viz. Commune Concilium which is the Court of Parliament Another is called Magnum Concilium and this is sometimes applied to the House of Péeres alone and sometimes out of Parliament to the Péeres of the Realme being Lords of Parliament who are called Magnum Concilium Regis Thirdly the King hath a Privy Council for matters of State Fourthly the King hath another Councel for matters of Law and they are his Iudges of the Law Now therefore when it is spoken generally of the Kings Councel it is to be understood secundum subjectam materiam as if matter of Law be concerned then his Councel at Law viz. his Iudges are to be understood if matter of State his Privy Councel c. Co. Inst pars 1 302. b. 1. 4 If the
Kings licence â—â—shops Court 〈◊〉 Rec. certif 13 A Bishop being an Ecclesiastical Iudge Co. ibib 134. b. 2. and sometimes a Lord of Parliament by reason of the Barony annexed to his Bishopricke the Law giveth much Honor and Reverence unto him And therefore none but the Kings Courts of Record as the Court of Common Pleas the Kings Bench Iustices of Goale-delivery and the like can write to the Bishop to certifie Bastardy Mulierty Loyaltie of Matrimony and the like Ecclesiastical matter For it is a Rule in Law that none but the King can write to the Bishop to certifie And therefore no Inferiour Court â—â—feriour â—ourt as London Norwich Yorke or and other Incorporation can write to the Bishop but in those Cases the Plea must be removed into the Court of Common Pleas and that Court must write to the Bishop â—â—are Impeâ—â— Wales and then remand the Record again and this is the reason why a Quare Impedit did lie of a Church in Wales in the County next adjoyning for that the Lordships Marchers could not write to the Bishop Neither shall Conusance be granted in a Quare Impedit because the Inferior Court cannot write to the Bishop And herewith agréeth Antiquity Bract. l. 3. 106. Fleta l. 5. c. 24. Britton 248. b. Nullus alius praeâ—er Regem potest Episcopo demandare Inquisitionem faciendam And another speaking of Loyalty of Mariage Nec alius quà m Rex super hoc demandaret Episcopo quod inde inquireâ—et Episcopus alterius mandatum quà m Regis non debet obtemperare And herewith also agréeth Britton Co. ibid. 137. b. 3. F. N. B. 79. a. If a Villain remaine in the Ancient Demean of the King a year and a day without clayme or seisure of the Lord Villein Ancient Demesne no 〈◊〉 the Lord cannot have a writ of Nativo habendo or seise him so long as he remains and continues there And the reason of this was in respect of the service he did to the King in Plowing and tillage of the Demeanes and other labours of Husbandry for the Kings benefit Glanv l. 5. c. 5. Fleta l. a. c. 44. Britton fol. 79. Mirr cap. 2. And herewith agrée old books which say that his Immunity was sometimes granted by common consent to the King for his profit and for the helpe and ease of his Villains So likewise Priest Chappel if a Villain be a Priest of the Kings Chappel the Lord cannot seise him in the presence of the King for the Kings presence is a priviledge and protection for him 27 Ass Pl. 49. Co. ibidem 15 If a Villain be professed a Monke or a Wife a Nun Villein the Lord cannot seise them c. Co. ibid. 156. a. 3. 16 If a Peere of the Realme or Lord of Parliament be demandant or Plaintiffe Tenant or Defendant Lord Knight Jury there must a Knight be returned of his Iury or else the Array may be quashed but if he be returned albeit he appeare not yet the Iury may be taken of the residue And if others be joyned with the Lord of Parliament yet if there be no Knight retured the Array shall be quashed against all So also in the like case in Attaint there ought to be a Knight returned of the Iury Note That this present Parliament which commenced Anno 16. Can. Bishops were by Act of Parliament excluded the house of Lords Bishops and therefore Quere whether at this day this Law holds in their Case or no Howbeit it seemes still to hold because they still retaine their Baronies in respect whereof they enjoyed Places and had votes in that house and doublesse shall still retaine divers other Priviledges which of right belong to Temporall Peeres that have Baronies Tamen quaere Co. ibid. 156. l. 6. b. 3. 17 At the Common Law Challenge peremptory any subject under the degrée of a Peere of the Realme upon an Indictment or Appeale of Treason or Felonie against him might in favorem vitae challenge peremptorily viz. 35. or any other number under thrée Iuries But a Lord of Parliament that being a Peere of the Realme is to be tryed by his Peeres shall challenge none of them because they are not sworne as other Iurors be Peere 〈◊〉 Challenge but find the partie guilty or not guilty upon their faith or allegiance to the King and they are Iudges of the fact and every of them doth separately give his Iudgement beginning at the lowest c. How the Common Law hath been altered concerning peremptorie Challenges see Co. ubi in margine Co. ibidem 18 A Péere of the Realme or a Lord of Parliament as a Baron Peere no â—â—ror Viscount Earle Marquesse and Duke propter honoris respectum in respect of honor and Nobility are not to be sworne on Iuries and if neither party will challenge him he may challenge himselfe For by magna Carta it is provided Quòd nec super eam ibimus Lords Commoâ— nec super eam mittemus nisi per legale judicium parium suorum aut per legem terrae Now the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realme Trial per pares The Péeres of the Realme are divided into Barons Viscounts Earles Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrées of Nobility are Péeres to another as if an Earle Marquesse or Duke be to be tryed for treason or felonie a Baron or any other degrée of Nobility is his Péere In like manner a Knight Esquire c. shall be tryed per pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses So as when any of the Commons is to have a triall either at the Kings suit or betwéen partie and partie a Péere of the Realme shall not be impanesseâ— in any Case Words of conâ—â—son bind in â—he Kings case â—nd of a wil. 19 If a man maketh a Feoffment in Fée ad faciendum or faciendum Co. ibid. 204. b. 4. or ea intentione or ad effectum or ad propositum that the Feoffée shall do or not do such an Act none of these words make the State in the Land conditional For in judgement of Law they are no words of Condition and so was it resolved Hill 18 E. in Co. Banco But this is to be understood in the Case of a common person for in the Kings case these or the like words do create a Condition and so it is also in the Case of the will of a Common person c. Condition not â—estroyed in â—â—e Kings case 20 A Common person being grantée of part of a reversion of Land Co. ibid. 21â— a. 3. shall not take advantage of a Condition by force of the Statute of 32 H. 8. cap. 34. As if
right of Inheritance or Frank-tenement which is supposed originally to commence by Livery shall not be transferred or be extinct without some Ceremony as first by re-entry upon the Disseisor and then by giving Livery or by that which doth tant amount viz. by release or confirmation to him 13 H. 7. 13. 20. c. And therefore it is commonly said in our Books that accord with satisfaction is a good Plea in personal Actions where Damages onely are to be recovered but not in Real Actions Co. l. 4. 55. b. 56. a. In the Case of the Sadlers in London 29 Ass 31. Pierce Partifields case 12 In Pierce Partifields case cited in the case of the Sadlers of London in the 4 Report fol. 55. An office found for the King cannot be quasht but by petition matter of record of as high nature b. it was found by office by force of a Diem clausit extremum after the death of one that held houses of the King in London that the Tenant died without heir whereupon the King grants them to Pierce P. for life who sueth a writ to the Major to put him into possession the Major returnes that the Tenant made his Will and gave them to his wife for her life who was yet in life and seised of the said houses together with one Jo. Digle her then husband P. P. outs Digle and his wife who thereupon bring a Scire facias against P. P. who demands Iudgement of the Writ because in as much as he was but Tenant for life and the reversion was in the King they ought to sue the King which they could not do but by petition And it was adjudged by all the Justices assembled in the Chancery that the Writ should abate and that Digle and his wife should sue by petition because for as much as the Kings Title was found by inquest of office upon oath the Title of the Subject ought also to appear by Record of as high nature viz. by like inquest of office upon oath and not by return of the Major onely for albeit that return be matter of Record yet is it not of so high and great regard in the Common Law as an office found by oath Co. l. 4. 55. a The Case of the Sadlers in London 13 At the Common Law The like when the King was seised of any estate of Inheritance or Frank-tenement by any matter of Record were his Title by matter of Record judicial as attainder c. or ministerial as office or by conveyance of Record by assent as fine Déed inrolled c. or by matter in fact and found by office of Record upon oath as alienation in Mortmaine purchase by Alienée the Kings villein escheat by death without heire c. he that had right could not have any traverse whereupon he might also have an Amoveas manum but was alwayes put to his petition of right to be restored to his Frank-tenement and Inheritance Howbeit he might have his Monstrance de droit and was not forced to his petition when the King was intitled by matter in fact as Villein Mortmaine Escheat Alien c. found by office and by the same office the Title of the party did also appeare as if a Disseisor did alien in Mortmain or to an Alienée or to the Kings Villeine or did die without heire in all these cases the party grieved might have his Monstrance de droit at the Common Law And so are the Books to be understood in 9 E. 3. 51. 13 E. 4. 8. a. 4 E. 4. 21. 33 E. 3. title Travers 36. Co. ibid. 14 It was found by office that T. by the Kings Licence married the Kings Niefe The like and that certaine Lands descended to the same Niefe which the Baron had aliened without the Kings leave his wife being the Kings Niefe to another and for that cause the land was seised whereupon the Alienée comes into the Chancery and sheweth all the case as it was found by office And therefore because all the truth of the case viz. the Niefe maried by his Licence the descent to the Niefe after the Coverture c. did appeare in the Office it was awarded that the Baron for that cause should hold by the Curtesie and that the Feme by his alienation should be put to her Action and thereupon by award the Alienée had restitution The like 15 It was found by Office that I. held of the King 30 Ass Pl. 28. Co. ibid. 56. a. and that M. his daughter and heire was of full age and had Livery and by another Office it was also found that the same I. had another daughter K. which was yet within age whereupon a Scire facias went out against M. and her husband c. who said that the land was given to I. and to his first wife the Mother of M. in taile and that K. was his issue of another wife and so M. sole heire but by award of all the Iudges all the land was seised into the Kings hand because the entaile was not found by any Office but onely that M. was general heire A Noble woman by marriage made ignoble 16 If a Woman be noble as Dutchesse Countesse Baronesse Co. l. 4. 118. b 4 Acton case Co. l. 6. 53. b. 2. The Countess of Rutlands Case c. by descent although she marie under the degrée of Nobility yet her birthright remaines For that is annexed to her bloud and is Character inde lebilis But if a Woman attaine Nobility by mariage viz. of a Duke Earle Baron c. and after the death of her first husband take another under the degrée of Nobility by this last mariage with one that is ignoble she hath lost the dignity unto which she attained by her first marying one of the Nobility for eodem modo quo quicquid constituitur dissolvitur And Quando mulier nobilis nupserit ignobili desinit esse nobilis Ecclesiastical Law founded by the Common Law 17 If it be demanded what Canons Constitutions Co. l. 5. Part 1. 32. b. The case of the Kings Ecclesiastical Law Ordinances and Synodals provincial are still in force within this Realme the answer is that it is resolved and enacted by authority of Parliament That such of them 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 Royal are still in force within this Realme as the Kings Ecclesiasticall Lawes of the fame Now therefore as consent and custome hath allowed those Canons c. So no doubt by the general consent of the whole Realme any of the same may be corrected inlarged explained or abrogated Writing annulled by writing 18 Although Indentures being made for the declaring of the uses of a subsequent Fine Co. l. 5. 26. a. The Earle of Rutlands
or other Writing shall be void yet the Law implicitly requires order which ought to be pursued by the Obligor c. As if an Obligation be made to the Sheriffe against the Statute of 23 H. 6. cap. 10. or to one against the Statute of Usury 13 Eliz. cap. 8. in those and the like cases the Defendant ought to conclude Judgement si Action and cannot plead non est factum 7 E. 4 5. 7 E. 6. Br. non est factum 14. against the opinion of Montague in Dyve and Maninghams case in the Commentaries Pl. com 66. Againe when the Obligation or other Writing took at first effect and was once revera his Deed but afterwards before the Action brought became no Déed as by rasure addition alteration breaking of the Seal or the like in these cases albeit it were sometimes his Déed yet may the Defendant safely plead non est factum for doubtlesse at the time of the plea which is in the present tenures it was not his Deed. In Dyer 36 H. 8. 59. In debt the Defendant pleades non est factum and before the day of Apparence of the Inquest the mice had eaten the Label unto which the Seal was fixed by the negligence of the Clerke in whose custodie it was kept whereupon the Iustices commanded the Iury that if they found that it was his Deed at the time of the plea pleaded they should then give a special Verdict which they did accordingly If an Obligation be delivered to another to the use of the Obligée and the Obligée refuseth it upon tender in this case the delivery hath lost its force and the Obligée can never agrée to it afterwards and then also the Obligor may safely plead non est factum against the opinion in Dyer 1 Eliz. 167. So also if an Obligation be made to a Feme Covert and the Baron disagrée to it the Obligor may plead non est factum for by the refusal the Obligation loseth its force and becomes no Déed And by these resolutions the Quaere in Dyer 2. Mar. 112. and the disagreeing opinions in 14 H. 8. 28. Dyve and Maninghams case 66. 1 H. 7. 15. Dyer 1 Eliz. 167. and other places are well reconciled 30 A. Tenant for life the remainder to B. in Fée joyn in a Lease to C. this immediately after the delivery takes effect in this manner Where a Lease enures by grant or confirmatioâ— it is the Lease of A. during his life Co. l. 6. 15. Treports case and the Confirmation of B. and after the death of A. it is the Lease of B. and the Confirmation of A. according to the opinion of Dyer Brown M. 6. and 7 Eliz. 234 235. and therefore in an Ejectione firma brought by C. if he count of a joynt Demise from A. and B. his count is not good And in that case although the Lease be by Déed indented yet shall it not worke any conclusion for when the Déed enures by passing of an interest as in this case it doth it shall not be taken for any conclusion no more than a Lease for yeares of the Tenant for life by Déed indented shall be an Estoppel after his death because at the beginning it took effect by way of passing an Interest Co. l. 6. 74. a. 3. Sir Drue Druries case 31 When Tenant by Knight Service dies his heire within age Marriage dâ— to the Lord. Chattel veâ—â— presently the value of his mariage as a Chattel takes such effect and is so vested in the Lord 24 E. 3. 25. V. N. Br. 27 E. 3. that albeit such an heire within age be made a Knight and to that purpose in Iudgement of Law is estéemed of the full age of 21 yeares yet shall the Lord have the value of his mariage as well as the custodie of his land till his age of 21 yeares which last to remove all doubt was expressely given to the Lord by Magna carta cap. 3. Co. l. 7. 17. b. 3. Calvins case 32 If a King hath a Kingdome by Title of descent where the Laws have taken good effect and rooting The King cannot altâ—â— in as much as by the Laws of that Kingdome he doth inherit it Lawes without Parliament he cannot change those Lawes of himselfe without consent of Parliament So also if a King hath a Christian Kingdome by Conquest as King H. 2. had Ireland after King John had given unto them being under his obedience and subjection the Laws of England for the government of that Country no succéeding King could alter the same without Parliament A Recognisance chargeth a rent after release to the Terre-tenant 33 The Grantée of a rent charge issuing out of land acknowledgeth a Recognisance and afterwards releaseth to the Terre-tenant Co. l. 7. 38. b. 3. c. Lillingstons case the Conusée sueth Execution and extends the rent notwithstanding by the release it is extinguished for the Recognisance took effect to charge the rent before the extinguishment and therefore it shall be liable to the extent in whose hands soever it comes and as to the Conusée shall not be extinct A Chattel vested 34 If the King hath an Advowson in Fée which is void Fitz. 33. N.O. P.a. and during the avoidance the King grants away the Advowson in Fee the King shall not present to this avoidance But if the King hath an Advowson by reason of the temporalties of a Bishoprick which is void and during the avoidance the King restores to the Bishop the temporalties yet he shall present to the Advowson and not the Bishop for this avoidance because the presentation was a Chattel which vested in him before he restored the temporalties So if the heire sue Livery from the King and hath it yet the King shall present to the Advowson which voided during the time that the Advowson and land were in the Kings hand causa qua supra Likewise if a man be seised of an Advowson in Fee in grosse or appendant to a Mannor and the Advowson voides and he dies his Executors shall have the presentation and not the heire because it was a Chattel vested and severed from the Mannor neither shall the heire in taile have the presentation which falls in the life of the Tenant in tail but the Executors of the Tenant in tail c. The like 35 The Termor shall have the presentation Fitz. 34. b. N which happens during the terme albeit during the terme he present not to the Advowson So if a Vicarage happen to be void and before the Parson can present he is made a Bishop c. yet he shall present to that Vicarage because it was a Chatttel vested in him Where the Guardian shall not have ravishment 36 If the Guardian marry the heire after the age of 14 yeares Fitz. 142. h. and after the heire is taken by a stranger yet the Guardian shall not have a Writ of
a lease for life and after the Lord and the tenant inter-marry and have issue betwéen them a son and the Feme dies and after the father dies the son within age here the executors shall not have the wardship by reason of the Seigniory for the father hath the wardship of his eldest son jure naturae which is inseparable and cannot be waved and he cannot have the wardship of his son by the death of his wife in respect of his Seigniory for that was inseparably vested in him as father immediatly upon the birth of the son jure naturae And Littleton saith that the father during his life shall have the marriage of his son and heir apparent and not the Lord c. 3. Co. l. 6. 22. Ambrosia Gorges Case 10 Viscount Bindon being seised of land in capite had issue The like Douglas his daughter and heir who being married to Sir Arthur Gorge had issue by him Ambrosia a daughter Douglas dies and likewise Viscount Bindon Ambrosia being under age afterwards Sir Arthur Gorge takes another wife and hath Issue a son Ambrosia remaining still under age In this case Ambrosia was not in ward during the time she remained heir apparent to her father but after her father had a son so that she remained no longer heire apparent then had Queen Eliz. the Wardship both of her body and Lands c. Allegiance â—â—ue by nature 11 Faith Co. l. 7. Calv. Case fol. 13. b. obedience and ligeance are one to the Soveraigne by the Law of Nature which cannot be changed or taken away for albeit Iudiciall and Municipall Lawes have inflicted and imposed in several places and at several times divers and several punishments and penalties for breach or not observance of the Law of Nature for that Law onely consisting in commanding or prohibiting without any certaine punishment or penaltie yet the very Law of Nature it self could never be altered or changed And therefore it is certainly true that Jura naturalia sunt immutabilia And here with agréeth Bracton lib. 1. cap. 5. and Doct. and Student cap. 5. 6. For example 33. H. b. 55. 6. If a man hath a Ward by reason of a Seigniory and is out-lawed he forfeiteth the wardship to the King but if a man hath the wardship of his owne Sonne or Daughter which is his heire apparent and then is out-lawed he cannot forfeit that wardship because nature hath annexed it to the person of the Father as it appeareth in 33 H. 6. 55. b. So likewise the Faith Obedience and Ligeance which we owe to our Soveraigne cannot be taken away For bonus Rex nihil a bono patre differt patria dicitur à patre quia habet communem patrem qui est pater patriae In the same manner Maris foeminae conjunctio est de jure naturae 35 H. 6. 57. as Bracton and Doct. Stud. in the places before quoted do hold And therefore if he that is attainted of treason or felonie be slaine by one that hath no authoritie or executed by one that hath authoritie but pursueth not his Warrant In this Case 21 E. 3. 17. b. the eldest sonne can have no appeale for he must bring his appeale as heire which priviledge being ex provisione hominis he loseth by the attainder of his Father Howbeit his Wife if he have any shall have an appeale because she is to have her appeale as Wife which she continueth to be notwithstanding the attainder for that maris foeminae conjunctio is de jure naturae And therefore it being intended to be of true and law-full matrimonie is indissoluble and this is proved by the booke in 35 H. 6. fol. 57. So if there be Mother and Daughter and the Daughter is attainted of felonie now can not she be heire to her Mother for the cause afore said yet after her attainder if she kill her Mother this is parricide and petite treason For still she remaineth her Daughter because that is of nature If a man be attainted of felonie or treason 4 E. 4. 35 H. 6. 57. 2. Ass Pl. 3. he hath lost the Kings Legal protection for he is thereby utterly disabled to sue any Action reall or personal which is a greater disability then an alien in league hath and yet such a Parson so attainted hath not lost that protection which by the Law of Nature is given to the King for that is indelebilis immutabilis and therefore the King may protect and pardon him and if any man kill him without warrant albeit attainted as afore-said he shall be punished by Law as a Man-slayer By the Statute of the 25 E. 3. cap. 22. a man attainted in a Praemunire is by expresse words out of the Kings protection generally and yet this extendeth onely to legal protection as it appeareth by Litt. fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him and therefore notwithstanding that Statute the King may protect and pardon him And although by that Statute it was farther enacted that it should be done with him as with an enemie by which words any man might have slaine such a person as it is holden in 24 H. 8. Coron Br. 197. until the Statute made in 5 E. cap. 1. Yet the King might protect and pardon him A man out-lawed is out of the benefit of the Municipal Law for so saith Fitz. N. B. 161. Ut legatus est quasi extra legem positus And Bracton l. 3. tract 2. cap. 11. saith that caput gerit lupinum c. yet is he not out either of his natural ligeance or of the Kings natural protection for neither of them is tied to municipal lawes but is due by the law of Nature which was long before any judicial or municipal lawes And therefore if a man were out-lawed for felonie yet was he within the Kings natural protection for no man but the Sheriffe could execute him as it is adjudged in 2. Ass Pl. 3. Every subject is by his natural ligeance bound to obey and serve his Soveraigne c. It is enacted by the Parliament in 23 H. 6. cap. 8. that no man should serve the King as Sheriffe of any County above one yeare and that notwithstanding any clause of non obstante to the contrary that is to say notwithstanding that the King should expressy dispence with the said Statute howbeit it is agréed in 2 H. 7. that against the expresse purview of that Act the King may by a special non obstante dispence with that Act for that the Act could not barre the King of the service of his subject which the law of nature did give unto him One of the Chiefest grounds according to which the Case of the post-nati was resolved in 6 Jac. was because obedience and ligeance of the subject to the Soveraigne is due by the law of Nature for if they be due by that law
be in better condition then the subject from whom the claimes and in that case shall have the priority and so shall his grantée also c. as is holden in 24 E. 3. 65. Fitz. tit gard 27 47. Co. l. 5. 91. b. 3. in Semaynes Case 39 In all cases when the King is partie Sheriffe 〈◊〉 open dooreâ— the Sheriffe if no doore be not open may after notice given of the cause of his coming request made to have the door opened break open the house of the partie either to take him or to make other execution of the Kings process if he cannot otherwise enter into it but so it is not in the case of a subject c. So for felonie or suspicion of felonie the Kings officer may breake the house to take the felon because in every felonie the King hath an Interest and where the King hath Interest Felonie the writ is Non omittas propter aliquam libertatem and therefore the libertie or priviledge of an house shall not hold out against the King besides it concernes the Common Wealth that felons be apprehended and in that respect also the King hath a special Interest being the head of that body c. Co. l. 5. 104. a. in Bakers case 40 T. 42 E. in B. R. in Ejectione firmae it was resolved Demurre that if the Plaintiffe shew in evidence any matter in writing Record or Sentence in the Ecclesiastical Court whereupon Question in Law may rise and the defendant offers to demurre c. the Plaintiffe cannot refuse to joyne in demurrer unlesse he will waive his evidence so if the Plaintiffe produce witnesses and the defendant admit their testimonie to be true he may demurre c. So also may the Parliament demurre mutatis mutandis Howbeit upon evidence in an information for the King his Council shall not be compelled to demurre But in that Case the Court may direct the Iury to find the special matter and thereupon they shall adjudge the Law as appeares in 34 H. 8. Dier 53. And this is by reason of the Kings prerogative who may also waive the demurrer and take issue at his pleasure Nota bene Co. lib. 5. 106. a. 4. 108. b. 1. in Sir Henry Constables case 41 Originally the Common Law gave unto the King all such things as were In nullius bonis as Wrecke viz. Goods Things 〈◊〉 liuâ— boâ—i quae naufragio ad terram appelluntur Flotsan viz. When the Ship is drowned or otherwise perished and the Goods flote upon the Sea Wrecke Jetsam as when the Ship is in danger to be drowned and to dis-burden the Ship the Goods are cast into the Sea and after notwithstanding the Ship perisheth Estrayers Lagan vel potius Figan as when the Goods so cast out are so ponderous that they sinke and the Mariners to the end they might find them again fasten a piece of Corke or a Boye to them that will not sinke and therefore this séemes to be called Ligan à Ligando It gave also to the King Estrayes which Bracton calles Animalia vagantia and others Animalia vacantia quia Domino vacari debent Also treasure trove and the like Because by the Rule of the Common Law when none could claime a property in any Goods the King was to have them by his prerogative And therefore Bracton saith Sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wreccum maris Bract. l. 3. c. 3. Grossus Piscis sicut Sturgio Balena aliae res quae Dominum non habent sicut animalia vagantia quae sunt Domini Regis propter privilegium Mare Clausum And note that the King shall have Flotsan Jetsan and Lagan by his prerogative as well as wrecke Albeit they be in or upon the Sea for the Sea is of the Kings Ligeance and parcel of this Crowne of England as it is holden in 6 R. 1. protection 46. and Britton cap. 33. agrées well with the opinion of Bracton that wrecke c. are things in nullius bonis and come into the hands of the subject Originally by Kings grant his words are these Britt c. 33. Et ausi purchas lou per franchise grantee par nous de choses trovves en nulluy biens si come de wrecke de neer bestes estrayantes of Conies Levres pessons Fesants Pertris autres Bestes sauvages par franchise de aver wrecke de meer trouve en son soil waife estray trouve en son fee garrennes en ses demesnes terres c. Lady Peere â—rest 42 A Countesse by descent or mariage cannot be arrested for debt or trespas 1 In respect of her dignity 2 The Law presumes Co. l. 6. 52. b. 3. in the Case of Isabel Countesse of Rutland that she hath sufficient in Lands and Tenements so hereby to be distrained for albeit in respect of her sex she cannot sit in Parliament yet she is a Péere and shall be tried by her Péeres as appeares of 20 H. 6. cap. 9. which was nothing else but a declaration of the Common Law So it is also of a Baron that is a Péere of Parliament 11 H. 4. 15. In homine repligiando against the Lady Spencer it appeares that the said Lady was a Peere of the Realme â—pon account Lady not exâ—ined 43 In 3 H. 6. 48. Co. ibid. 53. a. 1. A Writ of debt upon arrerages of accompt was brought by the Lady of Aburgavenie against another the Defendant pleads Rien luy doit and is ready to make his Law and prayes by force of the Statute of 5 H. 4. cap. 8. that the Parliament might be examined which Act is generall viz. that examination shall be made which is alwayes intended upon oath And there Cokein who gave the Rule said La Dame d'Aburgavenie est un Peere del Realme ne sera bien fait de luy faire venir d'estre examine Car par mesme la reason nous Dames faire venir chescun Duke on Countee d'Angliterre Rolfe Serjeant purquoy nou Sr. Le dit Statute est general est fait pur chescun home haut base A que Cokein dit le ley voit over diversity pur enter Seignior ou Dame c. auter Common Person By which book it may be observed that a Lady which is but the wife of a Baron is a Péere of the Realme and is in equipage as to Nobility and priviledges incident to their dignities with Dukes â—duo Juror Earles c. 44 In 48 E. 3. 30. Co. ibid. 53. a. 3. Sir Ralfe Everden Knight brings a writ to the Chancery and also a writ of the Privy seale to the Iustices rehearsing that he was a Baron and commanding them to discharge him of his oath in juratis accessis recognitionibus quibuscunque because the Barons ought not to be sworne upon Inquests and Recognitions
plead by prochiene amy Finch ibid. Tender upon a Mortgage for an Ideot 45 In Case of a mortage Littl. saith § 334. Co. Inst p. 1. 206. b. 4. if a stranger of his owne head that hath no Interest c. will tender the moneys c. to the feoffée at the day appointed the feoffée is not bound to receive them c. yet if the tender ought to be made by an heire that is and Ideot of what age soever In that Case any man may make the tender for him in respect of his absolute dis-ability and the Law in this Case is grounded upon charity and so in like Cases â—â—â—ant not outâ—â—ed 45 Minor verò Bracton l. 3. fol. 125. r. quia infra aetatem 12 annorum fuerit utlagari non potest nec extra Legem poni quia ante talem aetatem non est sub lege aliqua nec in decemi â—â—ant no acâ—â—â—tant â—or can make â—â—th 46 An infant under the age of 12 yeares shall not be charged in account as Receiver or Bailiffe Co. ibid. 128. Co. Inst p. 1. 172. a. 3. Litt. §. 258. Co. ib. 172. b. 1. because by intendment of Law before his full age he hath not skill and ability to raise or make any improvement or profit of the lands Goods or Chattels committed to his charge Neither shall an infant under that age be sworne of an Inquest for the Rule of Law is Minor jurare non potest And therefore an infant cannot make his Law of non summons neither shall his default in such Case grieve him for séeing the mean to excuse the default is taken away by Law the default it self shall not prejudice him Howbeit an Infant at the age of 12 yeares shall take the oath of Allegiance to the King an this was as Bracton saith Secundum leges Sancti Edwardi but indéed such was the Law in the time of King Arthur Howbeit an Infant cannot wage his Law in an Action of debt no more then make oath of non summons as afore-said 47 In Trespass by Will. de Walton against John Martin judgement was given â—prisonment â—pited that the Parliament should recover damages Co. Inst p. 1. 289. a. 4 quod praedict Joannes capiatur And the Record saith quod praedict Joannes venit coram Domino Rege reddidit se prisonae quia constat Curiae per inspectionem corporis ipsius Joannis quod idem Joannes est talis aetatis quod poenam imprisonamenti subire non potest idem dictum est ei quod eat inde sine die Also Allen Abbot brought an appeale of Robbery against John Boskiseleke Clerk and others who pleaded Not-guilty and were not found guilty whereupon judgement was given that they should go quit praedict Elena pro falso appello suo committatur prisonae c. for by the Statute of Westm 2. cap. 12. she ought to be imprisoned in that Case for a yeare but the Record saith Quia cadem Elena pregnans fuit in periculo mortis ipsa dimittitur per manucaptionem c. ad habendum corpus usque Quind Mich. c. 48 Vide Max. 135. 1. and for Infants sée Dier 104 a. 10 c. and Max. 149. 55. Dier 148. 75. 338. 41. Hob. 137. 49 A Lunatique shall not be charged with meane rates for default of Livery sued or tendered Burchers Case 84 The Law in some Cases tendreth the ignorance of men un-lettered 7 E. 3. 9. Co. Inst P. 1. 301. b. 4. 1 If a man make a lease to A. for yeares Lease for life and after by his déed the Lessor voluit quòd haberet teneret terram pro termino vitae suae this is adjudged by this verbe volo to be a good confirmation for term of his life Benignae enim faciendae sunt interpretationes cartarum propter simplicitatem Laicorum ut res magis valeat quà m pereat Co. lib. 5. 55. b. 2. in Knights Case Co. lib. 2. 3. a. Mansers Case Dier â— 16. El. 337 338. Pl. 39. 2 A man not lettered is not bound to seale and deliver any writing which shall be tendred unto him if there be not some present Not bound tâ— seale a deeâ— unlesse read that can and do first read the déed unto him if he require them so to do and if the déed be in Latin French or any other Language which the partie that should seale the writing understandeth not in that Case if the partie desire one to read it and expound it and there is none present that can or will do it in a language that the party sealing doth understand he may well then refuse to deliver it So likewise albeit a man can read yet if the déed be written in Latin French or some other language that he understand not and he demand to have it expounded but can not have it done accordingly In that Case also he may refuse to deliver it For Ignorantia est duplex viz. facti juris rursum ignorantia facti quoad rem nostram attinet est duplex viz. Lectionis linguae Now ignorance in reading or of the language quae sunt ignorantiae facti may excuse but as it is commonly said ignorantiae Juris non excusat Co. l. b. 2. 9. a. Thorough goods Case Co. l 4. 44. b. 3. in Sanches Case Co. l. 9 51. b. in the Earle of Shroesburys Case 3 A writing read or expounded in another forme then it purports to one not Lettered is not his déed though be seal and deliver it Not bounds 4 An Indictment ought to be full expresse and certaine Inditement and shall not be maintained by argument or implication because it is to be found by the oath of Lay-men 5 Pleading ought to be precise exact and certain Special Veâ—dicts It is otherwise of special verdicts which are to be found by Lay-men for the Law requireth no such precisenesse in them c. In the Earle of Shroesburys Case 6 If three distinct obligations are written upon one and the same piece of Parchement Co. lib. 11. 27. b. 1. in Henry Pigots Case and one of them onely is read to the obligée Several Obâ—â—gations upâ—â— one parchment and he being a man not lettered seals and delivers the whole this is good for that obligation which was read but void for the rest And this Case is agréed by Brudnel and Pollard in 14 H. 8. 26. So if there be two absolute and distinct clauses in a déed and one of them is read to the partie not lettered and the other not it is good for the clause that was read and ab initio void for the other Obligation of xx l. c. for xx s. 7 In 9 H. 5. fol. 15. Co. ibidem One brings a writ of debt of xx l. against another and counts upon an obligation of the same summe the defendant pleads that
Alien that is condemned in an information shall have a writ of Error to relieve himselfe Et sic de similibus â—â—eading 12 If an Alien that is no Alien Enemy Co. ibid. b. 2. in Calv. Case ubi suprà commence a suit the Tenant or Defendant may plead in dis-ability and ought at last to demand Iudgement Si il sera respondue But if an Alien Enemy bring a suit he shall conclude to the Action by saying Judgement si action Co. ib. 156. b. 4 and 129. a. 1. 13 It is a principal Challenge to the Poll Juror that the Iuror is an Alien born and that is propter defectum Patriae or rather ligeanciae as Littleton hath it or Subjectionis as Bracton Co. l. 7. 6. a. 4 in Calvins Case 14 It is to be observed that it is nec Coelum nec Solum Ligeance makes a Subject born neither the Climate nor the Soil but ligeantia obedientia that make a man to be a Subject born for if enemies should come into this Kingdome and possesse a Town or Fort and have issue there that issue is no Subject to the King of England though he be born upon his Soil and under his both Climate and Meridian because he was not born under the ligeance of a Subject nor under the protection of the King Co. ib. 15 If an Alien of a Countrey in league with the King come into this Kingdome and here commit Treason An Alien in league shall be indicted It is otherwise of an alien Enemy who shall be punished by Martial Law c. he shall be indicted for it and procéeded against according to the municipal Law of the land and the indictment shall begin and end as other indictments do viz. the beginning shall be contra Dominum Regem c. and it shall also end thus Contra ligeantiae suae debitum c. Onely in the middle these words shall be omitted naturalem Dominum suum c. as it was resolved in Hill 36. Eliz. in the Case of Stephano Ferrara de Gama and Emanuel Ludovico Tinoco two Portugals born who comming into England under the safe Conduct of Quéen Elizabeth and living here under her protection joyned with Doctor Lopez in treason against her Majesty But if an alien enemy come to invade this Land and be taken in war he cannot be indicted of treason for it because the indictment cannot conclude Contra ligeantiae suae debitum for he never was in the Kings protection nor ever ought any manner of ligeance unto him but malice and enmity and therefore in that Case such an Alien shall be put to death by Martial law And so it was in 15 H. 7. in the Case of Perkin VVarbeck who being an Alien born in Flanders feigned himself one of the sons of E. 4. and invaded this Kingdome with intent to take upon him the Royal Dignity but being taken in war it was resolved by the Iustices that he could not be punished by the Common Law but before the Constable and Marshal according to Martial Law and so he was according to that Law adjudged to be hanged drawn and quartered and was in that manner executed accordingly Co. ibid. 17. a. 16 Every Alien is either a friend that is in league An alien friend and enemy c. or an enemy that is in open war c. Every alien enemy is either so pro tempore a temporary enemy for a time or perpetuus perpetual or specialiter permissus permitted in a special manner An alien friend so long as he so continues to be may acquire by gift or purchase Lands c. but cannot hold them he may also have Leases and Goods for Trade and Commerce sake maintain personal actions c. as is above-said But if such an Alien become an Enemy as all Aliens friends may then is he utterly dis-abled to maintain any action or get any thing within this Realm but a perpetual enemy though there be no Wars by fire and sword between them cannot maintain any Action or get any thing within this Realm such as are all Infidels which are in law estéemed perpetui inimici because the Law presuming that they will not be converted that being remota potentia betwéen them as with Devils whose Subjects they are and the Christian there is perpetual hostility and can be no peace For as the Apostle saith 2 Cor. 6.15 Quae autem concordia Christo cum Beliali aut quae portio fideli cum infideli And the Law saith Judaeo Christianum nullum serviat mancipium Nefas enim est quem Christus redemit Blasphemum Christi in servitutis vinculis detinere Register 282. Infideles sunt Christi Christianorum inimici And herewith agréeth the Book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all And upon this ground there is a diversity betwéen the Conquest of a Kingdome of a Christian King and the Conquest of the Kingdome of an Infidel For if a King come to a Christian Kingdome by Conquest séeing that he hath vitae necis potestatem he may at his pleasure alter and change the Lawes of that Kingdome but untill he doth make an alteration of them the ancient Lawes thereof shall remain Howbeit if a Christian King should conquer a Kingdome of an Infidel and bring them under his subjection there ipso facto the Lawes of the Infidel are abrogated for that they be not onely against Christianity but against the Law of God and Nature contained in the Decalogue And in that Case until certain Lawes be established amongst them the King by himself or such Iudges as he shall appoint shall judge them and their Causes according to natural equity in such sort as Kings in ancient time did within their Kingdomes before any certain municipal Lawes were given But if a King hath a Kingdome by title of Descent there séeing by the Lawes of that Kingdome he doth inherit the Kingdome he cannot change these Lawes himself without consent of Parliament c. As for an Alien Enemy that is inimicus permissus he is an Enemy that comes into the Realme by the Kings Conduct c. Vide 7. 4. The Defendant pleaded an Alien 17 In an Action brought by a Subject against an Alien Co. ibid. 25. a. 4. in Calvins Case the Subject shall plead that the Defendant is an Alien born for the benefit of the King to the end that the King upon Office found may seise that whereof the Alien is seised or possest and also that the tenant may yield the same to the King and not to the Alien because the King hath best right thereunto Flea against an Alien 18 In an Action real against an Alien born Dier 2. 8. 6 H. 8. it is a good plea in dis-ability of the person to say that he is an Alien born otherwise in Actions personal but against an
c. hereupon C. brings a writ of Error c. and for one of the Errors assigns that albeit Ludlow be a Court of Record yet it is not such a Court as is intended by the Statute for causes of that nature for that the antient usage in all such popular actions or informations hath been that albeit the Informer tam pro domina Regina quam pro ipso exhibits the Information yet if the defendant pleads a special plea the Quéens Attorney shall reply alone and it was intended by the makers of the said Act that the sute should be in such a Court where the Kings Attorney may attend for the benefit which the King may have by such a sute and that is in the four Courts at Westminster And thereupon the Iudgement was reversed Vide Dyer 236. 24. Admission and Institution 32 He that comes in by Admission and institution Co. l. 6. 49. b. 1. in Boswels case comes in by a judicial act and the Law presumes that the Bishop who hath the cure of the Souls of all within his diocess for which he shall answer at his fearfull and final account in respect whereof he ought to defend them from all Schismatiques Heretiques and other Instruments of the devil will not do or assent to any wrong to be done to any Parsonage within his diocess but if the Church be litigious will inform himself of the truth de Iure Patronatus and so do right Peer agâ— 33 The person of a Peer of the Realm or a Countess Baroness Co. l. 6. 52. b. 3. in the Countess of Rutlands case c. by marriage or descent ought not to be arrested for debt or trespass because the Law presumes that they have sufficient in lands and tenements whereby they may be distrained and therefore in such cases issues only shall go out against their lands And albeit a Countess Baroness c. in respect of her sex cannot sit in Parliament yet she is a Peer of the Realm and shall be tried by her Peers as appears by the Statute of 20 H. 6. cap. 9. which is but a declaration of the Common Law Vide plus ibidem Cestuy que use 34 If Cestuy que use had granted his use by his will Co. l. 6. 76. a. 3. in Sir Geo. Cursons case no collusion could have been averred upon such a will to obtain the wardship of his heir for Nemo praeâ—umitur esse immemor suae aeternae salutis et maxime in articulo mortis et omne testamentum morte consummatum est And therefore the Statute of 4 H. 7. 10. which gives the wardship of Cestuy que use makes exception when any will is by him declared Vide 27 H. 8. 14. Divorce 35 Ch. and Eliz. were divorced in the Court of Audience ratione aetatis minoâ—is et impubertatis Eliz. after they had lived ten years together and had issue a daughter Co. l. 7. 43. b. Kennes case and afterwards Ch. marrying another woman by another Sentence in the Ecclesiastical Court the first marriage was declared void the second good and liberty given them ad exequenda conjugalia obsequia The second wife dies and Ch. marries a third wife and hath issue another daughter The last daughter is found heir by office the first traverseth the office by bill in the Court of Wards And in this case it was resolved that albeit the first was in truth a lawfull marriage yet the Sentence of divorce being in force no averment could be admitted against it because the Spiritual Iudge having jurisdiction thereof before the Sentence were repealed it was intended by Law to be Iust and our Law gave credence thereunto for Res Judicata pro veritate accipitur See Dyer 13. pl. 62. Co. l 9. 52. b. 4 in Hickmols case 36 If the Obligee confess himself to be discharged of all bonds betwixt him and the Obligor Release of bonds this by intendment of Law is a release or discharge of all bonds betwixt them for albeit the word discharge is not properly said of the part of the Obligee but of the Obligor for the Obligor is to be discharged yet in judgement of Law such an acknowledgement amounts to a discharge of the Obligor of all such duties Co. l. 9. 109. Meriel Treshams case 37 In debt against an executor he cannot plead quod ipse non habet c. aliqua bona c. praeter bona Plea of Executor c. quae non sufficiunt ad satisfacienda debita praedicta but he ought to plead quod non habet c. bona c. praeterquam bona catalla ad valentiam of a certain summ non ultra quae eisdem debitis obligata onerabilia existunt for the first plea is insufficient for the uncertainty vide Max. 162. pl. 61. and the other he ought to plead because he being privy and representing the person of the testator hath by intendment of Law notice of the certainty and certain value of the goods and therefore in such case ought to plead certainly as aforesaid The like Law is of an administrator for the goods of the Intestate Co. l. 11 13. a. 1. in Priddle and Nappâ—rs case 38 Of Impropriations formerly given to Monasteries Appropriations not only those which were truly Impropriate but likewise such as had been and were so in reputation were given to H. 8. by the intendment of the Statutes of Dissolution for albeit in those Statutes there is a saving of rights yet the Founders Donors c. are excepted out of that Saving so as they are bound by the body of the Act. Co l. 11. 16. a 4. in Doct. G anâ—s case 39 A Prescription Tites that every Inhabitant in the parish is to pay 2 s. in the pound according to the value of their houses yearly instead of Tithes is a good prescription because by intendment of Law the commencement thereof might be lawfull for it might be so by composition for the land before the houses were built 40 It is a Principle in Law that a barr is good if it be certain Plea in barr to a common intent good to a common intent Pl. Co. 28. a. 4. Colchrist Bernshin Vide ibid. 31. a. 33 a. 4. â—6 a. 3. as if a Messuage be demised to A. for life the remainder to B. for life si ipse B. vellet inhabitare in messuagio praedicto c. Here in an Action brought by the lessor for the recovery of the Messuage c. upon the condition broken it is a good barr for B. to say that after the death of A. he entred without averring the time of his entry viz. immediately after the death of A. because by intendment of Law it will be presumed he did so enter So if one plead in barr that A. died seised and that B. entred as son and heir to A. this is a good barr
for the advancement and continuance of Commerce and trade which is pro bono publico for the Rule is that Jus accrescendi inter mercatores pro beneficio commercii locum non habet Trade 5 One of the chiefest reasons why a Condition not to alien Co. ibid. 223. a. 2. annexed to a feoffment devise or gift of lands or goods is void is for that it is flatly against trade and traffique bargaining and contracting betwéen man and man Vide infra 9. Monopolies 6 Trin. 44 Eliz. The grant of the sole making of Playing Cards was adjudged void because it restrained trade and traffique Co. l. 8. 125. a. 3. the case of London which are the very life of every Commonwealth and principally of an Island There is the same reason of all other Monopolies Vide Co. l. 11. 87. Guilda 7 In favour of trade and traffique Co. ibid. the Law giveth the King power by his prerogative to erect Guildam Mercatoriam viz. a Fraternity Society or Incorporation of Merchants to the end that good order and government may be by them observed for the increase and advancement of Merchandising and trade and not for the hindrance and diminution thereof Trade Idleness 8 At the Common Law none could be prohibited to work in any lawfull trade Co. l. 11. 53. b. 4. The Taylors of Ipswich for the Law abhorrs Idleness the Mother of all mischief Otium omnium vitiorum mater and principally in young people who ought in their youth which is their séed-time to learn lawfull sciences and trades which are for the advancement of traffique and profitable to the Commonwealth and thereof they ought to reap the fruit in their old age For Jeunesse Oisense Vieillesse disettense And therefore the Law detests Monopolies which prohibit the exercise of lawful trades And this appears in 2 H. 5. b. where a Dyer was bound that he should not use the Dyers trade by the space of two years and there Hall held that the obligation was against the Common Law and added farther Per dien si le plaintife fuit icy il iroit al prison tanque il feroit fine al Roy. Tail 9 Before the Statute of 32 H. 8. 36. it seems to be the better opinion that tenant in tail by a fine might have barred his heir Dyer 32. 28. 29 H. 8. albeit the reversion were in the King because the Law always disfavours restraint of alienation in prejudice of trade and traffique Vide supra 5. 199 Honor and Order Tenant by Curtesie 1 A man shall be tenant by the Curtesie of an house Co. Inst pars 1. 30. b. 2. that is Caput Baroniae or Comitatus because so it may be still preserved intire but it appeareth by 4 H. 3. that a woman shall not be endowed thereof because in such case it should be severed which the Law will not permit for that the Law respecteth Honor and Order Vide Title Dower 180. Villein 2 Amongst the cases where the Villein shall be privileged from the seisure of the Lord albeit he be not absolutely enfranchised Co. ibid. 137. b. 3. this is one viz. Ratione dignitatis as if the Villein be made a Knight the Lord cannot seise him Vide Britton 79. Challenge 3 A Péer of the Realm Co. ibid. 156. b. 3. or Lord of Parliament as a Baron Viscount Earl Marquess or Duke in respect of Honor and Nobility are not to be sworn on Iuries and if neither party will challenge him he may challenge himself for by Magna Carta it is provided Quod nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum aut per legem terrae Now in reference to Honor and Order the Common Law hath divided all the Subjects into Lords of Parliament and into the Commons of the Realm The Peers of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes And the Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses and in judgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tried for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tried per pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a trial either at the Kings sute or between party and party in such case a Peer of the Realm shall not be impannelled Co. ibid. 165. a. 3. 4 Concerning Inheritances of Honor and Dignity there is an antient Book-case in 23 H. 3. Tit. Partition 18. in these words Note Noble women Coparceners if the Earldom of Chester descend to Coparceners it shall be divided between them as well as other lands and the eldest shall not have this Seigniory and Earldom intire to her self Quod Nota adjudged per totam Curiam By this it appeareth that the Earldom viz. the possessions of the Earldom shall be divided and that where there be more daughters than one the eldest shall not have the dignity and power of the Earl that is to be a Countess but in such case the King who is the Soveraign of Honor and Dignity may for the uncertainty conferr the Dignity upon which of the daughters he please And this hath been the usage since the Conquest as is said Vide 3 H. 3. tit Prescription Howbeit if an Earl that hath his dignity to him and his heirs dieth having issue one daughter the dignity shall descend to the daughter and her posterity for there is no incertainty And this appeareth by many presidents and by a late Iudgement given in Sampson Leonards case who maried with Margaret the only sister and heir of Gregory Fines Lord Dacre of the South and in the case of William Lord Ros. Howbeit there is a difference between a dignity or name of Nobility and an office of Honor for if a man hold a Manor of the King to be Constable of England and die having issue two daughters and the eldest daughter taketh husband he shall execute the office solely and before Mariage it shall be exercised by some sufficient Deputy and all this was resolved by all the Iudges of England in the Duke of Buckinghams case 11 Eliz. Dyer 285. But the Dignity of the Crown of England was without all question descendible to the Eldest daughter alone and to her posterity and so it hath béen 25 H. 8. cap. 22. declared by Act of Parliament for Regnum non est divisibile and so likewise was the descent of Troy as appears by Virg. Aeneid 1. Praeterea Sceptrum Ilione quod gesserat olim Maxima natarum Priami Co. l. 1. 24. b. 4. in Porters case 5 Iudges in their resolutions ought to have a special care Goâ—d
like This was termed by the Ancient Philosophers Original Justice which in Adams innocencie was cléere and lightsome but since his fall both in himselfe and his posteritie much darkened and incumbred with original sinne This is also the Law whereof Saint Paul makes mention in his Epistle to the Romans where he saith When the Gentiles which have not the Law Rom. 2.14 15. do by nature the things contained in the Law These having not the Law are a Law unto themselves which shew the work of the Law written in their hearts their conscience also bearing witnesse and their thoughts in the mean while accusing or excusing one another The Law of Reason is that Law which deduceth conclusions from known Principles by ratiocination or discourse of sound reason which Principles are termed Rules or Maximes of Reason Positive Lawes are such Lawes as are framed by the light of the two former for the regular Government of some particular Common wealth And therefore these Lawes are sundry and divers according to the several constitutions of particular places and Countries of this sort is the Common Law of England which being the Municipal Law of this Nation and receiving its light principally from the Law of Reason is many times directed and controuled by the Rules and Maximes thereof Now of these Maximes some are taken out of forreigne Sciences as Theologie Grammar Logique Physiques Moral Philosophy Politicks and Oeconomiques The rest are proper to the Law it self as Law-constructions and Fictions in Law All which will more plainly appear by the Precepts and Examples hereafter following I Maximes of Reason taken out of THEOLOGIE 1 Summa Ratio est quae pro Religione facit It is the highe Reason that makes for Religion Statutes which restrain Alienation of Ecclesiastical livings binde the King though not named 1REgularly Statutes binde not the King Co. l. 8. 14. a. In the case of Ecclesiastical persons Co. l. 11. 70. a Magdalen Colledge Case Co. l. 2. 44. b. In the Bishop of Winchesters Case unlesse he be particularly named yet the King is included within the general words of 13 El. 10. which prohibit Ecclesiasticall persons to make grants of their Livings because the Parliament which made that Statute adjudged such grants to be causes of dilapidations and decay of spirituall livings and hospitality and of the utter impoverishment of successors Incumbents in the same whereupon would necessarily follow decay of true Religion and the spirituall worship of God For it is recorded in History that amongst the ten Persecutions which the Primitive Church suffered there were two the most grievous the one under Dioclesian the other under Julian the Apostate the first endeavoured to destroy all the Professors and Preachers of the Word of God occidit omnes Presbyteros but notwithstanding that Religion still flourished for sanguis Martyrum est semen Ecclesiae yet that was a grievous Persecution But the Persecution under the other viz. Julian was much more grievous and dangerous because as the History saith occidit Presbyterium for it robbed the Church and spoiled spiritual persons of their revenues And thereupon ensues great ignorance in Religion and the service of God and therefore great decay of the Christian profession for none will apply himselfe or his children or any other committed to his charge to the study of Divinity when after long and painfull study they shall have nothing to live upon See more in the Books at large Ecclesiastical livings are in Abeyance 2 The Fee simple of a Parsonage or Vicarage is said to be in Aveyance and this was provided by the providence and wisdom of the Law Co. Inst pars 341. a. for that the Parson and Vicar have curam animarum and were bound to celebrate Divine Service and administer the Sacraments and therefore no act of the predecessor should make a discontinuance to take away the entry of the successor and to drive him to a reall action whereby he should be destitute of maintenance in the mean time Co. ibid. 3 Vpon consideration of all the Books of the Law Ecclesiastical persons cannot injure the Church this diversity is well observed by Sir Edw. Cooke that a Parson or Vicar for the benefit of the Church and his successor is in some cases estéemed in Law to have a Fée simple qualified But to do any thing to the prejudice of his successor in many cases the Law adjudgeth him to have in effect but an estate for life Bract. f. 226. Causae Ecclesiae publicis causis aequiparantur And Ecclesia fungitur vice minoris meliorem facere potest conditionem suam deteriorem nequaquam Brit 143. Vide Co. Inst pars 1 2. b. 4. Littl. §. 146. Co. Inst pars 1. 102. b. 40 E. 3. 27. 5 E. 4. 8. 6 E. 3 51 52. 10 E. 4. 2. a. 21 H. 7. 2◠4 An Abbot Prior Bishop Dean Arch-deacon Prebend Ecclesiastical persons cannot disclaim Parson Vicar or other sole Corporation that is seised in auter droit cannot disclaim because they alone cannot devest any fée which is vested in their house or Church For an Abbot and Prior had their Convent the Bishop his Chapter the Parson and Vicar their Patron and Ordinary and the like of other sole Corporations without whose assent they could passe away no Inheritance And the reason of this was because the wisdome of the Law would never suffer one sole person to be trusted with the disposition of the Inheritance of his house or Church Ecclesiae suae conditionem meliorem facere possunt sine consensu deteriorem non possunt sine consensu Vide infra Max. 178. Pl. 1. Co. l. 6 49. b. Boswels Case Co. Inst pars 1 344. a. Glan l. 13. cap. 18 19 20. Mirror c. 5. § 5. Bract. 238. 240 244 c. 291. Fleta l. 83. c. 11 16 17. Britt 222 223 224. 6 E 3. 28. 39. 52. 39 E. 3. 24. 43 E. 3. 25. 45 E. 3. Quare impedit 39. 31 E. 1. Quare impedit 186. 5 By the Common Law there ought to be in every Parish Persona idonea to serve the Cure The Parson or Vicar ought to be Persona idonea for so it appears by the words of the Quare impedit quod permittat praesentare idoneam personam which Epithete idonea includes abilitie in erudition and doctrine honesty in his conversation and diligence in his function and all this to instruct the People of God in true Religion and good conversation and to avoid contention And to the intent that he who hath so great a charge may effectually and peaceably intend it the Common Law provides that after Institution he shall not be subject to actions and so neglect his duty by losing his time in suits and vexations of Law Not to be removed after institution by a common person nor after induction by the King And therefore at the Common Law if a stranger had presented his Clerke and
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
contraria voluntate c. Co. l. 8 48. a. John Webbes case Co. Inst pars 1 131. a. 4. Ibid. See more authorities 2 If after a Protection is allowed by Innotescimus A Protection must be disallowed by the Chancellor the Defendant tarry in the Countrey without going to the service for which he was retained above a convenient time after he had the Protection or otherwise repaire from the same service upon information thereof to the Lord Chancellor he shall repeale the Protection in that case by another Innotescimus but a Protection shall not be avoided by a bare averment of the party in that case because the record of the Protection must be avoided by matter of as high nature Co. Inst pars 1 204. a. 4. 3 E. 6. Dyer 65 66. 4 Mar. 138. 3 If a man maketh a feofment in fée or for life ad faciendum or faciendo or ea intentione or ad effectum or ad propositum What words make a condition and what not that the Feoffée shall do or shall not do such an act none of these words make the estate of the land conditional for in judgement of Law they are no words of Condition to make an estate of inheritance or Freehold defeâ—sible which took effect by Livery except it be in the Kings case or in the case of a will But if a Lease for yeares be made with such a clause or thus Quod non licebat to the Lessee dare vendere vel concedere statum sub poena forisfacturae H. 40. Elizabeth Brown Ayers case Plowd Co. 142 Browning and Bestons case Co. ibid 214. b 3. 1. ibid. per auth this amounts to make the Lease for yeares defeasible and so was it adjudged in Queen Elizabeths time in the Court of Co. Pl. and the reason of the Court was That a Lease for yeares was but a contract which may begin by word and may also by word be dissolved 4 If a man make a gift in taile or a Lease for life upon Condition Where an estate shall cease upon condition where not that if the Donee or Lessee goeth not to Rome before such a day the Gift or Lease shall cease or be void the Grantee of the reversion shall never take advantage of this Condition because the estate cannot cease before an entry but if the Lease had been but for yeares there the Grantee might have taken advantage of the like Condition because the Lease for yeares ipso facto by the breach of the Condition without any entry was void for a Lease for yeares may begin without Ceremony and so may end without Ceremony but an estate of Freehold can neither begin nor end without Ceremony Co. l. 3. 64. b. 4. and 65. a. 1. Pennants case Things that lie in grant not surrendred without deed 5 Rents Advowsons Conditions Reversions Remainders Co. ibid. 338. a. 3. and all other things that lie in grant as they cannot be granted without Deed so shall they not be surrendred without Deed. 6 An Obligation or other matter in writing cannot be discharged by an agreement by word Finch 11. Doct. and Stud. li. 1. cap. 12. 19 E. 4. 1. b. Vide infrà 25. An annuity by prescription 7 In an Annuity growing by prescription rien arrere is a good plea for this prescription is a matter in fait 5 H 7. 33. Finch 12. 4 H. 7. 7. b. but in an Annuity by Deed it is no good plea without shewing an Acquittance Matter pleaded against the King 8 When a man avoides the Kings Title by as high a matter of Record as the King claimeth he may have it by way of Plea without being driven to his Petition though the King be intitled by double matter of Record As one is attainted of Treason by Parliament and an office finds his lands whereby the King seiseth them the party may alleadge restitution by Parliament and a repeale of the former Act. Finch 12. Co. l. 4. 57. a. 4. In the Sadlers of Londons Case Power of revocation annulled by feofment or release 7 A. by Indenture enfeoffs B. of two acres to the use of A. for life remainder in taile to C. remainder to D. in fee with proviso Co. l. 1. 113. a. Albanies case that if E. die without issue A. by Indenture sealed c. in the presence of 4 witnesses may alter the uses c. A. of one acre enfeoffes F. and for the other acre A. by Indenture renounceth surrenders releaseth c. unto B. C. and D. the said Power Condition Authority c. E. dies without issue A. by Indenture revokes the first uses and limits new ones And it was resolved that A. had by the said feofment and release barred himselfe of limiting other uses for as the Proviso and Covent aforesaid did commence by Deed so by Deed may they be annulled and defeated because in all cases when any thing executory is created by a Deed the same thing by consent of all persons which were parties to the creation of it may be againe by their Deed annulled And therefore Warranties Recognisances Rent-charge Annuities Covenants Leases for yeares uses at the Common Law and the like may by a Deed of Defeasance with the mutual consent of all those that were parties to the creation of them be annulled discharged and defeated for it would be strange and unreasonable that a thing which is created by the act of the parties shall not be againe by their act with their mutual consent dissolved Bloud no valuable consideration against the Statute of 13 El 5. 10 Nature and bloud are not valuable considerations to satisfie the Statute of 13 El. 5. Co. l. 3. 81. a. 4. Twines case and therefore if he that is indebted to five several persons to each of them in 20 l. in consideration of natural affection gives all his goods to his sonne or cofin in this case in as much as the other shall lose their due debts c. which are things of value the intention of the act was that the consideration in such case should be valuable for equity requires that such a gift which shall defeat others of their due debts shall be upon as high and as good a consideration as those debts are which are so to be defeated A right cannot be transferred 11 By the Rule of the Common Law a right or title Co. l. 4. 1. a. Vernonâ— case which any hath to any Lands or Tenements of inheritance or Frank-tenement cannot be barred by acceptance of any manner of collaterall satisfaction or recompence As if A. disseise B. Tenant for life or in fée of the Mannor of Dale and after gives the Mannor of Sale to B. and his heirs in full satisfaction of all his right in the Mannor of Dale which B. accepts yet B. may neverthelesse enter into the Mannor of Dale or recover it in any real action for the
Ravishment because he hath had the effect of his mariage A Chattel vested 37 If a man be Guardian in right of his Wife Fitz. 142. i. although his Wife die yet he shall have the Wardship because it is a Chattel vested in him Feoffee upon condition not disabled 38 If the Feoffee upon Condition be disseised Co. Inst pars 1 222. a. 3. and after bind himselfe in a Statute Staple or Merchant or in a Recognisance or take wife this is no disability in him of performing the Condition for that during the disseisin the land is not charged therewith neither is the land in the hands of the Disseisor liable thereunto because in that case if the wife die or the Conusee release the Statute or Recognisance and after the Disseisee doth enter he may performe the Condition in the same plight and freedome as when the land was conveyed unto him Accceptance cannot make a void Lease good 39 Where an Estate or Lease is ipso facto void by a Condition or Limitation Co. ibid. 215. a. 1. no acceptance of the rent after can make it to have a continuance Otherwise it is of an Estate or Lease voidable by entry 35. He that cannot have or performe the effect or consequence of a thing shall not have the thing it selfe Co. Inst pars 1 16. b. 2. 1 If a man be called by Writ to the Parliament No Peer unlesse he sit and the Writ is delivered unto him and he sit in Parliament by force of that Writ he is for ever after a Baron or Péer of the Parliament and thereby his bloud is ennobled to him and his lineal heires but if he die before he sits in Parliament he is no Baron or Péer neither shall he or his reap any benefit of the Writ because being prevented by death he cannot performe the effect or consequence of the Writ which is personaliter interesse cum Rege cum Prelatis magnatibus c. Super arduis urgentibus negotiis c. consilium suum impensurum c. Co. ibid. 8. b. 1. Bract. l. 2. fo 88. Fleta l. 1. cap. 10. 2 An Infant within age that is not in custody of another An Infant 〈◊〉 cannot be Guardian cannot be Guardian in Soccage because no Writ of account can lie against an Infant For as Bracton saith Alium regere non potest qui seipsum regere non novit Or as Fleta Minor minorem custodire non debet alios enim presumiter male regere qui seipsuÌ„ regere nescit And by the like reason An man non compos mentis a Lunatick a man caecus mutus or surdus mutus or a Leper removed by a Writ de leproso amovendo cannot be Guardian in Soccage Co. ibid. 89. a. 1. 3 A Guardian in Soccage shall not present to a Benefice in the right of the heire because he cannot be accomptable therefore A Guardian cannot present to a Benefice for that he can make no benefit thereof for the Law doth abhor Simony or any corrupt contract for Benefices And therefore in that case the heire shall present himselfe Co ibid. 100. a. 4. 4 If two Ioyn-tenants bring a Writ of Mesne One Joyn-tâ—nant cannot forejudge and the one is summoned and severed the other cannot fore-judge the Mesne for he ought to be attendant to the Lord Paramount as the Mesne was and that can he not be alone without his companion So it is also if there be two Ioyn-tenants Mesnes and in a Writ of Mesne brought against them one maketh default and the other appeares there can be no fore-judger Co. Ibid. 102. a. 3. 5 If Tenant in Frank-almoigne bring a Writ of Mesne against his Lord the Lord cannot disclaime in the Seigniory No Disclaimâ—â— in Frankalmoigne because he cannot hold of any man in Frank-almoigne but of the Donor and his heirs 6 If the Lord mayhim his Villaine No appeale by Lord against his Villaine he shall be indicted for it at the Kings suit but he shall not have an Appeal of mayhim against his Lord Littl. §. 194. Co. ibid. 126. a. 4. because he cannot in that case enjoy the damages recovered for that upon recovery and execution for the damages the Lord may immediately take them from him againe Vide infra 38. 1. 7 In a Quid juris clamat brought by two Executors Non-suit of one executor is of both the non-suit of the one is the non-suit of both because the Tenant cannot attorne according to the grant Co. ibid. 139. a. 4. 8 Regularly when any man will take advantage of a Condition if he may enter he must enter In some cases neither entry nor claime necessary and when he cannot enter he must make a claime Co. ibid. 218. a. 3 4. And his claime is to procéed and as it were to make way for his entry And the reason of this is because a Fréehold and Inheritance shall not cease without entry or claime yet in some cases when he cannot enter by reason of some presentin-interest which the Tenant hath in the land neither shall he then make his claime because he cannot enjoy the effect of his claime viz. to enter into the land As in the case of Littleton Sect. 350. If land be granted to a man for 5 yeares upon Condition that if he pay unto the Grantor within two yeares 40 marks that then he shall have Fee or otherwise but for the terme of 5 yeares if in this case the Grantee do not pay unto the Grantor the 40 marks within the first two yeaaes then immediately after those two yeares past the Fée and Frank-tenement is in the Grantor without entry or claime c. Vide 34. 11. and 55. 109. â—ersity of â—ctione and â—ise 9 If an Ejectione firma be brought Co. ibid 285. a. 3. and the terme incurreth hanging the Action yet the Action shall proceed for damages onely because an Ejectione doth lie after the terme for damages onely but if Tenant pur auter vie bring an Assise and Cesty que vie dieth hanging the Writ albeit the Writ were well commenced yet the Writ shall aâ—ate because he cannot have the effect of a recovery in an Assise which is to have as well the Land as the Damages and not Damages onely as in the case of an Ejectione firma â—o writ of Erâ— atter reâ—se 10 If Tenant in a real Action release unto the Demandant after recovery all his right in the land Co. ibid. 289. a. 1. 9 H. 6. 47. he shall not afterwards have a Writ of Error because he cannot have the effect of that Writ which is to be restored to the land â—o attaint afâ— release 11 If Debt or Damages be recovered in a personal Action by false verdict Co. ibid. 26 H. 8. 3. b. 13 E. 4. 1 2. and the Defendant releaseth unto the Plaintife all Actions
temps Eliz. Co. l. 4. 89. b. 4. Druries case 3 If a Countesse retain two Chaplains The first Diâ—pensations Wast void those two are onely capable of dispensation according to the Statute of 21 H. 8. cap. 13. And therefore if the Countesse retains a third that cannot devest the capacity of dispensation which was vested in the two first For albeit the Countesse may entertain as many Chaplains as she will at the Common Law yet can she not have more then two capable of Dispensations by force of the Statute and reason requires that he which hath longest served shall be first preferred For qui prior est tempore potior est jure F.N.B. 142. f. 4 If a man purchase divers lands by one feoffment Priority of wardship which are holden severally of divers Lords by Knight-service and after he dies his heire within age that Lord which shall first hap the Ward shall have him because there is no priority But if he purchase land which is holden by Knight-service of one Lord and after purchase other land holden of another Lord by the like service and after die his heire within age In this case that Lord shall have the Ward of the heire of whom the land which be first purchased is holden for that he held of him by a more ancient feoffment viz. by priority then he held of the other Lord of whom he held by posteriory c. Co. l. 4. 66. b. 3. Fulwoods case 5 If a man be bound in two Statutes A former â—â—â—tute first foâ—â— and the last Statute is first extended and put in execution Yet the first Conusée upon extent shall be first served and the last Conusée shall stay till the first be satisfied Dyer 32. 2. 28 29 H. 8. 6 In debt against Executors who plead fully administred Debt agaâ—â—â—â— Executors and it was given in evidence by the Defendants that they had paid divers debts upon contracts made by their Testator and shewed not that they were paid before the Plaintiffs writ purchased whereupon the Plaintiff demurres and that was the chiefe reason why Iudgement was given for the Plaintiff Dyer 133. a. 1. 3 4 P.M. 7 A man being Patron of a Benefice in right of his wife grants proximam advocationem to another Grant of the next avoydance after which grant the Incumbent makes a lease of the Benefice for 60 yeares reserving rent to him and his Successors under the value in the Kings books afterwards the Patron Grantor and his wife together with the Ordinary confirme the Lease and then the Incumbent is deprived for marriage and the Grantée presents his Clerk who enters upon the Lessée to avoid the lease In this case it séems his entry is congeable because the Grant preceded the lease Dyer 232. 5. 7 Eliz. 8 If debt be brought against the Ordinary for the debt of the intestate after notice he cannot dispose of any of the goods to others Ordinary before he hath satisfied that debt for which the action was brought against him Dyer 276. 52. 10 Eliz. 9 A Scire facias was brought by Basset against the Corporation of Torrington in Com. Devon to repeal their Patent of Faires and Markets But it was held Scire faciaâ— that a Puisne Patentée shall not have a Scire facias to repeal a more ancient Patent but è contrà 10 Vide Hob. 7. Spendlowes and Burket concerning the grant of an avoydance and a lease of a Prebendary in Lincoln 50 According to the diversity of the same person Co. Inst pars 1. 8. a. 1. in Calvins case Co. ib. 129. a. 3. 1 A man seised of lands in fée hath issue an Alien Alien not 〈◊〉 heritable viz. born out of the Kings ligeance that issue cannot be his heire propter defectum subjectionis albeit he be born within lawful marriage neither yet shall he inherit to his Father or any other although he be made Denizen by the Kings letters Patents Neverthelesse if the same man be naturalized by act of Parliament he shall not then be accounted in Law alienigena but indigena and shall be capable of inheriting c. â—uption of â—d for a 〈◊〉 2 The same man may have some children capable of inheriting his land after him and others incapable Co. ib. 8. a. 2. according to the several conditions in which he stood at the several times when he had those children Co. ib. 129. a. 3 As if an Alien be made Denizen the issue which he hath after the denization shall be his heire and not the issue which he had before So also if a man hath issue a sonne before his attainder and obtaineth his pardon and after the pardon hath issue another sonne here at the time of the attainder the bloud of the eldest was corrupted and therefore he cannot be heire but if he die living his father the younger sonne shall be heire for he was not in esse at the time of the Attainder and the pardon restored the bloud as to all issues begotten afterwards c. â—lain free 〈◊〉 a time 3 If Villenage be pleaded by the Lord in an action reall mixt Co. ib. 127. b. 4 or personal and it is found that he is no Villein the bringing of a Writ of Errour is no enfranchisement because thereby he is to defeat the former judgement and if in the mean time the Villain bring an action against the Lord the Lord néed make no protestation so long as the record remains in force for at that time he is frée c. â—â—â—is utrum â—â—rranty 4 If a Juris Utrum be brought by a Parson of a Church Co. ib. 370. a. 4 the collateral waranty of his Ancestor is no barre for that he demanded the land in the right of his Church in his politique capacity and the warranty descendeth on him in his natural capacity c. â—â—rranty â—fession 5 If a collateral Ancestor release with warranty Co. ib. 392. b. 3 and enter into religion now doth the warranty binde but if afterwards he be deraigned then is the warranty defeated â—nt extinâ—shed 6 One that hath a rent charge going out of the wives land 14 H. 8. 6. Finch 18. releaseth it to the husband and his heires Yet in this case the husband shall not have the rent but the release shall enure unto him by way of extinguishment onely as seised in right of his wife â—â—ant and â—firmation 7 The Parson of Weston in Com. Glocest An. 9 El. demised his Rectory to W. Hodges then Patron of the same Rectory for 50 years Co. l. 5. 15. a. 3 Mewcomes case Trin. 30 Eliz. in the Exchequer who Anno 14 Eliz. by his déed assigned it over to Sir John Throgmorton the Bishop confirms the lease Anno 17 Eliz. in the life of the Lessor And in this case it was resolved that the assignment of
properly called a Rent For saith he if it should be a Rent it ought to be either Rent-service Rent-charge or Rent-secke but it is not any of those For if the stranger be once seised of it and after be denyed it he shall not have an Assise for it because it is not issuing out of any Tenements c. So that if it be arreare the stranger hath no other remedie but that the Feoffor or his heirs may enter and yet if they do enter then is the Rent gone for ever And therefore he concludes that such a charge upon the Landis not a Rent but onely a paine layed upon the Tenant of the Land and his heires that in Case payment be not made according to the Indenture they shall lose the Land by the entry of the Feoffor and his heires c. An Estate during coverture 2 Another example hereof you shall find Sect. 380 381. Co. ibid. 235. b. 1. Where to prove that an Estate made to Baron and Feme during the Coverture is an Estate unto them for their two lives he useth this argument Every man saith he that hath an Estate of Frank-tenement in Lands or tenements hath an Estate in them either in Fée or Fée taile or for his owne life or pur auter vie But the Baron and Feme have not by such a Grant Fée nor Fée taile nor an Estate pur auter vie Ergo they have an Estate for the term of their lives Howbeit that is upon a Condition in Law viz. If one of them die or a divorce be sued betwixt them that then it shall be Lawfull for the Lessor or his heires to enter c. And in this Case if they make wast the Feoffor and his heires shall have a writ of wast against them supposing by his writ Quod tenet ad terminum vitae c. But in his Count he shall declare the special manner of the Lease Common ratione commorantiae void 3 In Trespass the Defendant justifies Co. lib. 6. 60. a. 2. in Gatewands Case that all Inhabitants in any ancient mesuage within the Towne of Dale have used to have Common in the place where c. in Sale ratione condonantiae c. And this Custome was adjudged to be against Law Because there are onely four kinds of Commons viz. Appendant appurtenant in grosse and for vicinage and Common Ratione commorantiae is none of them c. 80. 18. The Estate of the Duke of Cornwall 4 Edward 3. Co. lib. 8. 27. a. 2. in the Princes Case gave unto the Blacke Prince the Dukedome of Cornwall c. Habendum tenendum eidem Duci ipsius haeredum suorum Regum Angliae filiis primogenitis dicti loci Ducibus in Regno Angliae haereditariè successoris c. And it was resolved in 3 Jac. in the Princes Case that that the Prince had an estate of Fée-simple in that Dukedome because every Estate of Inheritance is either Fée-simple or Fee-taile but that Estate could not be Fée-taile for it is not limited or restrained either by expresse words or by words which do tout amount to the heires of the body of the Prince because he that is to inherit that Dukedome ought to be the first borne Sonne of the heires of the Blacke Prince be it heir Lineall or Collateral and such heire ought also to the King of England c. Vide infrà 192. 3. 72 The Generals must go before and the Specials must follow after â—enerals beâ—e Specials 1 In a write the General shall be put in demand and in Plaint before the special as Land before Pree Pasture Wood Iuncarie The Rule of the Register Marish c. Wood before Alders Willowes c. Finch 24. 73 The more worthy shall be set before the lesser worthy â—grees of â—hiness of â—d c. 1 An intire thing shall be demanded before the moitie part or parts Co. Inst p. 1. 4. a. 2. Co l. 11. 82. a. 4. Bowles Case the thing of greater dignitie before that which is of lesse as a mesnage before Land for albeit Land be of more esteeme then any of the other elements because it was principally made for man to rest on which he cannot do in any of the other elements yet Land builded upon is more worthy then any other Land because it is for the habitation of man and in that respect hath the precedencie to be demanded in the first place in a praecipe howbeit a Castle shall be demanded before a mesuage or Mannor because it is more worthy then they being ordinarily an habitable for a Noble personage c. Finch 24. and the Rule in the Register Finch 25. 2 In a Replevin if it be of two chattels one quicke Of Chattels and the other dead the living thing shall be first demanded Finch 25. and the Rule in the Register Finch ibidem 3 Where one hath the presentment to a Church two turnes Of present Action to a benefice and another the third turne he that had the third turne bringing a Quare Impedit shall not begin with his owne turne first but with the other two turnes Co. Inst part 18. a. 3. 4 My Lord Cooke well observes Fee-simple the most worthy Estate that Littleton did worthily begin his Booke with an Estate in Fée-simple because all other Estates being derived from that it must needs be the most worthy for saith he A principalioribus dignioribus est inchoandum Co. lib. 2. 46. b. 1. in the Arch Bishop of Canterb Case 5 By the Statute of 31 H. 8. cap. 13. It was enacted Words of inferior rank eâ—clude them of higher degree that all Monasteries c. Colledges c. which after that Act should happen to be dissolved renounced relinquished forfeited given up c. or by any other mean should come to the Kings highness c. should be vested deemed and judged by authoritie of Parliament in the very actual and real possession of the King c. And afterwards by the Act of 1 E. 6. cap. 14. The Colledge of Maid-stone in Kent was given to E. 6. Now the Question was whether by the General words of the Statute of 31 H. 8. That Colledge was not to be deemed in the Actual possession of E. 6. because the Edict of 1 E. 6. was a mean by which it came to the Kings hands and therefore fulfilled these words of that Statute by any other mean But it was resolved per totam Curiam that the Statute of 31 H. 8. could not be so understood For when the Statute speaks of dissolution renouncing relinquishing forfeiture giving up c. which are inferiour meanes by which such Religious houses came to the King then the said last words by any other mean cannot be intended of an Act of Parliament which is the highest manner of conveyance that may be And therefore the makers of that
against their wills and by good advise he was cleerly discharged thereof See more examples to the same purpose ubi in marg Co. l. 7. 25. b. 1. in Calvins Case 45 Foedera percutere to make Leagues Peace warâ— Denization doth onely and wholy pertaine to the King and not to the subject so also doth Bellum indicere Likewise the King onely without the subject may make not onely letters of safe conduct but letters patents of Denization to whom and how many he please and may enable them at his pleasure to sue any of his subjects in any action whatsoever real or personal which the King could not do without the subject if the subject had any Interest given unto him by the Law in any thing concerning an Alien borne Nay the Law is more precise herein then in a number of other Cases of higher Nature For the King cannot grant to any other to make of strangers born Denizens it is by the Law it self so inseparably and individually annexed to his Royal Person as the Book is in 20 H. 7. 8. because the Law esteemeth it a point of high prerogative Jus majestatis inter insignia summae potestatis to make Aliens borne subjects of the Realme and capable of the Lands and Inheritances of England in such sort as any natural borne subject is And therefore by the Statute of the 27 H. 8. cap. 24. many of the most ancient prerogatives and Royal Flowers of the Crowne as Authority to pardon Treason Murder Man-slaughter and Felonie Power to make Iustices in Eyre Iustices of Assise Iustices of Peace and Gaol-delivery and the like having béen severed and divided from the Crowne were again remitted to the same But authority to make Letters of Denization was never mentioned therein to be resumed because there was never any that claymed the same by any pretext whatsoever being a matter of so high a point of prerogative c. Co. l. 7. 14. a. 4. in Englefeilds Case 46 A. Seised of the Mannor of Dale in Fée A Covenâ—â— Power of Revocation Covenants with B. to stand seised to the use of himselfe for life the remainder to B. in tail the remainder to B. in Fée with proviso that upon delivery or tender of a ring to B. by himselfe or another as the Estates shall be void A. is out-lawed for treason the King seiseth the Land and lets a Lease to D. for 40 yeares Treason Seisure and after the King gives a Commission under the Great Seale to E. to tender the ring to B. according to the Condition In this Case if a Common Person had enjoyned the Kings Estate by making such a Lease of 40 yeares Demise by thâ— Kings power Revocation remaines he had utterly deprived himself of revoking the Estate and of taking advantage of the Condition because his Act shall be most interpreted against himselfe But in that Case the Kings demise shall not enure to his special prejudice to two intents viz. To a demise of Land and also to a suspension of his Condition whereby he might defeat the Estate for life and the other Estates that depend upon it or to a demise in respect of his present Estate pur auter vie and also to a Confirmation in respect of his Condition whereby otherwise he might defeat all as shall be also in Case of a Common Person For the Kings grant shall always be taken according to his expresse intention comprehended in his grant and shall not extend to any other thing by Construction or Implication when it appeares not by his grant that his Intent extended unto it and therefore in such Cases the King ought to be truly informed and he ought to make a special and particular grant which by expresse words may enure to all such several intents as are desired c. Co. l. 7. 16. a. 4. in the Case of Swasn 47 All White Swans not marked Swans wilde which have gained their liberty and swim in an open and common River may be seised to the use of the King by his prerogative Because Volatilium quae sunt ferae naturae alia sunt regalia alia Communia Now a Swan is a Royal bird and therefore if the propertie thereof be not knowne it belongs to the King by his prerogative And there was always an ancient Officer of the King called Magister deductus Cignorum who continues even to this day Neverthelesse the subject may also have property in white Swans not marked Swans not marked in private waters as some may have Swans not marked in their private waters the property whereof belongs unto them and not unto the King And albeit they escape out of their private waters yet they may take them and convey them home again And with this agrées Bracton lib. 2. cap. 1. fol. 9. Si autem animalia fera fuerint mansueta ex consuetudine eunt redeunt volant revolant ut sunt Cervi Cigni Pavones Columbae hujusmodi eo usque nostra intelligantur quamdiu habuerint animum revertendi But if they once gain their natural liberty and do swim in open and common Rivers the Kings Officer may seise them in the open and common River for the King because one white Swan without such pursuit as is aforesaid cannot be known from another And when the property of a Swan cannot be known it being of its nature a Royal Fowl it belongs to the King c. Duke of Cornâ—al 48 In the Princes Case Co. l. 8. fol. 28. a. It was resolved Co. lib. 8. 28. a. 3. in the Princes Case that the Act of 11 E. 3. by force whereof the Kings eldest son was made Duke of Cornwall was such an Act. whereof the Iudges and all the Realm ought to take Conusance because it concerned the King and his first-born son and heir apparent to the Crown for the time being perpetuis futuris temporibus Conusance of an Act of Parliament for every subject hath interest in the King and none of his subjects who are under his Laws are divided from him being their Head and Soveraign So that the Kings affairs concern the whole Kingdome and especially when the Prince the first begotten son of the King and his Heir apparent to the Crown is therein concerned Corruscat enim Princeps radiis Regis Patris sui censetur una persona cum ipso Rege Treason against the Prince as it is declared in the Act of Parliament of 38 H. 6. And therefore if any shall intend the death of the Prince and shall make declaration thereof by some overt Act that is Crimen laesae Majestatis high Treason by the ancient Common Lawes of England and is so declared by the Statute of 25 E. 3. c. Prince 49 1 H. 5. fol. 7. If the Prince as Prince of Wales Co. ib. b. 2. hath judgment to recover and afterwards the Crown descends to him he
Also if issue be taken whether the Plaintiffe be an Earl or no it shall not be tried by the Countrey but the Kings writ Also the Defendant shall not have a day of grace against a Lord of the Parliament because he is conceived to attend the publique And all these and many other do appear in our Books 48 E. 3. 30. Regist 179. F. N. B. 247. 48. Ass Pl. c. 23. Ass Pl. 24. 32 H. 6. 27. 35 H. 6. 46. So that as when such an Office descends to an infant or to a man de non sanae memoriae they of necessity ought to exercise it by Deputy so likewise an Earl for the necessity of his attendence which the Law intends upon the King and the Common-wealth that Stewardship of a base Court shall be executed by Deputy Also if a Parkership be granted to an Earl without words to make a Deputy yet he may keep it by his servants And if a Duke have licence to hunt in a Park the Law will allow him attendance suitable to his condition c. Marshalsie Seisure Office Scire facias 56 It was found by Office in 9 Jac. that Sir George Reynel had forfeited the Office of Marshal of the Marshalsie Co. l. 9 95. b. 3. in Sir George Reynels Case by divers voluntary escapes and it was resolved that the King might seise that Office without suing out a Scire facias And in that Case it was observed 1 That the King in some cases shall be in possession by seisure without Office as in 21 H. 7. and Stamf. in case of temporalties of a Bishop and of Priors aliens because the certainty of them appears in the Exchequer 2 He shall sometimes be in possession by Office without seisure as of Lands Tenements Offices c. which are local oâ— whereof continual profit may be taken as upon condition attainder wardship c. Vide 2 H. 7. 8. Stamf. 55. Dowries case in Rep. 3. and the Sadlers Rep. 5. And the Office albeit false yet cannot be avoided without traverse for he cannot traverse the Kings title in the information Traverse Advowson c. 20 E. 4. 10. 3 The King shall be in possession by Office and seisure of an Advowson and thereof he is not in possession until presentment admission and institution And if the King upon refusal bring a Quare Impedit the owner may traverse the Kings title in that Action without traverse of the Office because it is not a manual but an incorporal hereditament also the right to present is casual and not continual 4 The King shall be in possession without office where his tenant died without heir 9 H. 7. 2. 5 When distinct matters amount to an office in that case there ought to be a Scire facias before the King can seise 6 When a common person is put to his Action In that Case the King upon office is put to his Scire facias c. â—o tenure reâ—erved Capite 57 When the King grants any land without reservation of any tenure or absque aliquo inde reddendo or the like Co. l. 9. 123. b. 3. in Anthony Lowes Case the Land by operation of Law shall be holden of the King in capite by knights-service according to the rate and proportion of Land holden by knights-service viz. more or lesse according to the quantity of the Land c. 58 When any thing is due to the King Co. l. 9. 132. a. in Holis Case he ought to have the full and compleat effect of the thing so due unto him As if there be Grandfather Father and Son of Lands whereof some are holden of the King in capite by Knight-service in capite and the residue of other Lords c. And the Grandfather conveys all the Lands holden of other Lords and part of the capite Lands to the Father for life the remainder to the Son in tail the remainder to the right heirs of the Grandfather And the residue of the capite Lands to four younger Sons successively for life the remainer to the right Heirs of the Grandfather the Grandfather dies the Father tenders his livery and dies before livery sued or office found the Son being of full age and all this is found by office and the Son continues the livery the four younger Sons being still in life In this Case albeit by the death of the father before livery sued the King hath lost the priviledge of having primer seisin after the death of the Grandfather as it was adjudged in Northcots case and in Hales case in the 8 Rep. c. for here the Son shall not sue livery nor pay primer seisin because they were due by the Father after the death of the Grandfather and the Son living the Father is not within the Statutes of 32 34 H. 8. for the Lands conveyed unto him Neverthelesse in the same Case the King shall have primer seisin for the Lands conveyed to the younger Sons because they are within the thrée Cases in which wardship and primer seisin are given unto the King by the said Acts viz. Advancement of his wife preferment of his children and payment of his debts And the reason hereof is because when the said Acts give unto the King primer seisin it is intended of an actual and effectual primer seisin and not of one which is onely Mathematical and Imaginary for as before is said the King ought alwayes to have a full and compleat effect of the thing which is due unto him So also if the King hath title to present by lapse hâc vice and he present and his Clerk is admitted and instituted but dies before induction In this Case the King shall present again for he had not the full and compleat effect of his presentation as it was resolved by Sir James Dyer rotam Curiam in Gyles his Case 18 Eliz. in Co. Ba. Likewise if the King marry a daughter Marriage again which he hath inward infra annos nubiles and before the age of consent the Baron dies the King shall have the marriage of the Heir again because the first marriage was not compleat as it was resolved in Ambrosia Gores case in the 6 Rep. fol. 22. King donor not barred And the King donor in tail before the Statute of West 2. de donis c. was not barred by the alienation of the Donée post prolem suscitatam without Assets albeit there were collateral warranty Howbeit in all these Cases a common person shall be barred c. Co. l. 10. 113. b 1. in Legats Case 59 When the King grants any thing upon a false insinuation Grant upon false suggestions void or suggestion such a grant of the Kings is void for in that Case there is a diversity betwéen the King a common person For a Subject that may intend his private affairs shall not in such Case avoid his Grant but the King who intends the Publique good shall avoid
his Jure Regio as it was said in 21 E. 3. 47. in the Earl of Kents Case And this is an high and great Prerogative which the King hath that when he makes any Grant upon such false suggestions those Grants are void in Law So also when upon false insinuations and pretexts he makes any grant as of a Monopoly Monopolies c. which in truth is in the prejudice of the King and Common-wealth the King Jure Regio shall avoid such Grants and such Letters Patents shall be by judgment of Law cancelled And therefore in Legats Case in the 10 Rep. it is wittily said of Perpetuities Monopolies and Patents of concealment Concealmenâ— that they were born under an unfortunate Constellation because as soon as they were drawn in question Perpetuities Iudgment was alwayes given against them and never for them they having alwayes two inseparable qualilies incident unto them viz. to be troublesome and fruitlesse â—ent 60 If rent be payable at the Feast of Easter Co. l. 10. 127. b. 4. in Cluns Case and the tenant pay the rent in the morning and the Lessor die before noon this payment is voluntary and good satisfaction against the Heir but not against the King 44 E. 3. 3. â—he King not â—â—rred by Acts â—f Parliament 61 When the King hath any Prerogative Estate Right Title Co. l. 10. 74. b. 4. in Magd. Coll. Case or Interest by the general words of an Act of Parliament he shall not be barred of them as in case of reasonable aid the King hath an Estate and Interest in it and therefore the general words of the Statute of West 1. cap. 35. shall not extend unto it Also the King hath a Prerogative quod nullum tempus occurrit Regi and therefore the general Acts of Limitations or of Plenarty shall not extend unto him F. N. B. 7. b. 32. c. Likewise the King by his Prerogative may sue in what Court be will and of that Prerogative he is not barred by the general purview of the Statute of Magna Charta cap. 11. Et sic de similibus â—arks â—icence 62 None can make a Park Chase or Warren Co. l. 11. 87. b. 1. in the Case of Monopolies without the Kings licence because that were quodam modo to appropriate such things as are ferae naturae in nullius bonis to himself and to restrain them of their natural liberty which he cannot do without the Kings licence c. â—ossessors of â—â—e Kings â—oods and â—â—eir execuâ—â— c. acâ—â—ptable 63 The Earl of Devonshire being Master of the Ordnance Co. l. 11. 90. a. in the Earl of Devonshire's Case obtained a Privie Seal to convert to his own use c. All the unserviceable Ordnance exprest in a Book in regard the King was informed that the Masters did use to claim and enjoy them as fées and avails belonging to their Office whereupon he sold them made his executors and died And in this Case it was resolved that albeit the Earl claimed them to his own use yet in regard the grant was made upon a false suggestion he was in his life-time accountable to the King for them because in the Kings Case the Law makes a privity for if any take the Kings goods or enter into his Lands by wrong the King may charge him in account 33 H. 6. 2. 4 H. 7. 6. 7 H. 7. 10. 15 H. 7. 17. 1 Eliz. 149. Breretons case and 40 Ass Pl. 75 If goods be devised to the King in whose hands soever they come the possessor shall be charged in accompt to the King and the King shall not be put to his Action of Trespasse for then by the death of the party the King should be without remedy but the King by his Prerogative may have an Action of accompt against the executors of the party as appears in Littleton fol. 28. And the King is not constrained to charge the Defendant as Bailiff or Receiver as a common person ought but the King may alledge in his Information generally that he ad compotum Domino Regi reddend tempore mortis suae tenebatur in such sums of money due to the King c. as appears by many presidents in the Exchequer and in the Kings Bench And therefore if the Earl was in his life-time bound to render an accompt unto the King his executors shall do it after his decease c. If one by Letters Patents or by vertue of his Office hath power to assesse Fines upon grants or admittances made to Copiholders within such a Mannor of the Kings and he assesseth little fines for the King and under-hand takes great summes or other rewards of the Copiholders to his own use in deceit and prejudice of the King In this case he shall be charged to the King in accompt for all for in truth all was due to the King and if he die his executors in the Kings Case shall be charged for it is holden in 39 Ass Pl. 18. that the Officers and Ministers of the King may advantage him but can never do any thing to his dis-advantage Co. l. 11. 90. b. 4. in the Earl of Devonshires Case 64 M. 37. 38 Eliz. None can â—â—pose of the Kings treaâ—â—â—â— without hâ—â— licence An Information was preferred in the Exchequer against Carey and Dodington executors of Sir Walter Mildmay Knight Chancellor of that Court to render an accompt of 1525 l. of the Quéens treasure by him converted to his own use c. the Defendants plead that Sir VValter Mildmay non recepit c. ad computandum nec die mortis tenebatur Reginae in Compoto c. And the special Verdict was that the Treasurer and Vnder-treasurer of the Exchequer made a warrant to four Tellors or two to pay to Sir Walter Mildmay 100 l. per annum for his diet and 40 l. per annum for his Attendance in the Vacation by reason that by the annexing of the Court of first-fruits and Augmentation the Chancellor was constrained to attend more than other Chancellors had formerly done And in 2 Eliz. the Quéen directs a Privy Seal to the Treasurer Chamberlaines and Vnder-treasurer of the Exehequer commanding them or some of them to pay to such as should be imployed by her c. for their labours and expences at their discretions according to their merits in as large manner as any Treasurer Chamberlains or Vnder-treasurer had done before And in this Case it was resolved that no Officer nor all of them together can ex officio dispose of the Kings treasure without the Kings warrant although it be for the honour and profit of the King because the Kings treasure is the ligament of peace and the sinews of war and of so high a nature that the imbezeling of treasure trove although not found in the Kings Coffers was treason And treasure and other valuable chattels are so necessary and incident to the
Crown that in the Kings Case they shall go with the Crown to the successor and not to executors as in case of common persons as appears in 7 H. 4. 43. and 44 E. 3. 42. Neither yet doth every warrant serve for the issuing of the Kings treasure for it cannot be done by Parol or by the privy Signet but ought to be done under the Great Seal or Privy Seal It was also further resolved in this Case that albeit Sir VValter had thus received the Quéens treasure to his own use yet inasmuch as he received it without lawful warrant he knowing that it was the Quéens treasure the Law makes privity in the Quéens Case and therefore she might charge him as an Accomptant And so it was also adjudged in the Exchequer in Jurdens Case P. 31. Eliz. Rot. 150. Neither yet is it of necessity that the Kings money or goods should come into the hands of the Testator for if he were onely a mean or Instrument whereby the King was put to loss or damage he shall be charged with so much as he hath so endamaged the King and shall be compelled at the Kings Suit reddere rationem thereof which is in nature of an Accompt for which there is a notable president in M. 30. E. 3. Rot. 6. Porters Case which sée in Co. l. 11. 92. b. in the Earl of Devonshires Case And therefore it was also resolved in Sir VValter Mildmayes Case that the Quéen might either charge the executors of Sir VValter or those that made such unlawful warrant at her election And if they were dead their executors c. for in as much as they were in their life-time chargeable by the Law in that Case if they die before judgement against them without question their executors shall be charged because where the Testator is by the Law chargeable to satisfie the King for losse or dammage done unto him his death shall not dispence therewith but that his Executors shall be also chargeable to the King c. F. N. B. 5. l. 65 In a Praecipe in Capite the Tenant shall not plead Protestaâ—â— that the Tenements are not holden of the King albeit the writ supposeth as much but he ought to take it by protestation and to plead other matter in barre if he have any matter to plead â—ender Di. â—ark 66 In a writ of Right F. N. B. 5. m. the Demandant ought to count of his own seisin or the seisin of his Ancestor c. yet the seisin is not traversable but the tenant may tender a Di. mark to enquire of that seisin c. and if it be found with the tenant that the Ancestor was not seised the Demandant shall be barred Howbeit if the King be party Demandant the Tenant shall not tender a Demy Mark to enquire of the seisin but he ought to plead in bar and there the tenant shall not imparâ— without the assent of the Kings servants The King may â—â—cuse appeaâ—â—nce 67 The King by a writ de warrantia diei may command the Iustices to excuse the Defendant of appearing at the day F. N. B. 17. b. whereunto he was adjourned to appear in proper person And whether the Cause alledged in the writ be true or false it is not material when the King certifies that he is in his service for it séems by the words of the writ that the King by his Prerogative may warrant that default for a day And so also it séemes that if the tenant in a Praecipe quod reddat at the great Cape or petit Cape returned make default that before judgment upon that default the King may command such a writ to the Iustices rehearsing that the tenant was in his service c. and commanding them that his default should not turn to his prejudice And it stands with reason that the King may do it because every one is bound to serve the King in his affairs c. â—â—nipresence 〈◊〉 his Courts 68 If false Iudgment be given for the King in any Action or Suit F. N. B. 21. b. 107. q. Finch 81. the party grieved shall have a writ of Error and assign Errours without suing any Scire facias against the King ad audiend errores because the King is alwayes present in Court and that is the cause that the form of Entry in all Suits for the King is Edvardus Herbert Miles Attornatus Domini Regis generalis qui pro domino Rege sequitur venit hic in Curia c. And doth not say Dominus Rex per Edvardum Herbert Attornatum suum c. And therefore it is also that the King cannot be Non-suit that all Acts of Parliaments that concern him are general and the Court must take notice of them without pleading them for he is in all and all have their part in him c. â—ake Attorâ—ys 69 It séems that before the Statutes which ordain F. N. B. 25. c. e. â— 26. a. that a man may make Attorneys c. the Iustices neither would nor could suffer the Plaintiffe or Defendant Demandant or tenant to make Attorneys in any Action or Court whatsoever yet the King by his Prerogative even before those Statutes might grant to a man power to make Attorneys and by his Writs or Letters might command the Iudges to admit and receive them c. and that without any cause shewed in the writ c. â—â—e King canâ—â—t be Jointâ—ant 70 In the Register there is the form of a writ F. N. B. 32. g. wherein a common person is joyned with the King in a Quare Impedit which runs thus Rex vice comiti c. praecipe R. de C. quod justè c. permittat nos P. de T. praesentare c. But Fitz. saith in his N. B. that the common opinion in his time was that the King should have the whole presentment sole and should have a sole Action c. although he séems to hold the contrary himself Ideò quaere â—sent again 71 If the King recover by a Quare Impedit F. N. B. 34. f. and after ratifie the Estate of the Incumbent yet at the next avoidance the King shall present because the Recovery and Iudgement for him were not executed â—â—â—sent by 〈◊〉 72 In a Frée Chappel of the Kings F. N. B. 34. â— where the Dean ought to give the Prebends if he make not collation within six moneths unto them then shall the King present unto them by Laps as Ordinary F. N. B. 34. k. 73 If the Bishop make collation and die before induction Not inducted or instalment and the King seise the temporalties he shall have that presentment because the Church is not full against the King until the Parson or Prebend be inducted or installed F. N. B. 35. a. 74 If the Kings tenant hath title to present to an Advowson Advowson Ward Present which is void
Quare vi armis and since that by sundry Statutes in divers other Actions viz. in Accompt debt detinue annuity Covenant Action upon the Statute of 5 R. 2. Action upon the Case c. Co. ibid. 201. b. 2 4 Villenage is such an exception in any plea brought by the Villein against the Lord that it shall make the writ abate Dis-ability persons so that he shall not have a resummons or Re-attachment as in Case of the Excommunication c. Co. ibid. 158. a. 1. 5 If a man be out-lawed in Trespass debt No Juror or any other Action he is thereby disabled to serve of a Iury for that is a principal Challenge to the Poll viz. propter delictum because he is Exlex and therefore is not legalis homo Co. ibid. 132. b. 4. 6 A man exiled or banished beyond Sea viz. by authority of Parliament Exiled Abjured Dead The Feme may sue or in Case of abjuration upon an Ordinary procéeding of Law is in the nature of a dead man in Law And therefore in such Case his Wife may sue or be sued without him as in Case when a man enters in Religion and is profest a Monk c. Thus it was in the Case of the Wife of Sir Robert Belknap 2 H. 4. 7. a. one of the Iustices of the Court of Common Pleas for during his banishment being yet alive she brought a writ in her owne name whereupon one said Ecce modò mirum quòd foemina fert breve Regis Non nominando virum conjunctim robore Legis So likewise E. 3. 10 E. 3. 53. 1 H. 4. 1. b. Pl. in Parl. 19 E. 1. brought a Quare Impedit against the Lady Maltravers and after that H. 4. brought a writ of Ward against Sibill B. during the exile of her Husband The like was also adjudged at the Parliament holden in Crastinum Epiphanum Ann. 19 E. 1. in the Case of Margery de Mose Wife of Th. of Weyland being the yeare before abjured the Realme for felony c. Howbeit if the Husband by Act of Parliament have judgement to be exiled but for a time which some call a Relegation that is no civil death but abjuration in 8 E. 2. Coron 425. is called a divorce betwéen the Husband and the Wife And therefore in that Case the Wife may sue and be sued c. Co. ib. 2. a. 4. Co. l. 7. 17. a. 2. in Calvins Case 25. a. 4. Calv. Case 7 If an Alien Christian or Infidel purchases houses lands Aliens purchase is the Kings tenements or hereditaments to him and his heires albeit he can have no heires yet he is of capacity to take a fée-simple but not to hold for upon an Office found the King shall have them by his prerogative of whomsoever the land is holden and in that Case the Lord shall lose his Seigniory So it is also if he purchase land and die for in that likewise the Law casteth the fréehold and inheritance upon the King If an Alien purchase any Estate of frée-hold in lands c. upon Office found the King shall have them If an Alien be made denizen and purchase lands and die without issue the Lord of the fée shall have the escheate and not the King If an Alien purchase a lease for yeares upon Office found the King shall have it unlesse it be of an house for habitation to the end he may use Merchandize and Commerce Howbeit such an house also if he return home and leave or die the King shall have it and not his Executors c. â—ne born out 〈◊〉 the Kings â—geance 8 A man seised of land in fée hath issue an Alien Co. ib. 8. a. 1. that is borne out of the Kings Ligeance he cannot be heire propter defectum subjectionis albeit he is borne within lawfull marriage And if he be made Denizen by the Kings letters patents yet cannot he inherit to his father or any other But it is otherwise if he be naturalized by Act of Parliament for he is not then accounted in law Alienigena but Indigena â—ue not inâ—â—ritable 9 When an Alien is made Denizen the issue Co. ib. Co. l. 7. 7. a. 4. in Calvins Casâ— 36 H. 8. dâ—nizen Br. 9 that he hath afterwards shall be heire to him but no issue that he had before So likewise if an Alien commeth into England and hath issue two Sonnes these two Sonnes are Indigenae subjects borne because they are borne within the Realme and yet if one of them purchase lands in Fée and dieth without issue his Brother shall not be his heire for there was never any Inheritable bloud betwéen the Father and them and where the Sonnes by no possibility can be heires to the Father the one of them shall not be heire to another Co. ibid. 129. a. 3. It is otherwise of naturalization by Act of Parliament for if the Father he naturalized by Parliament the Issue had before c. shall Inherit So if an Issue of an English-man be borne beyond Sea and the Issue be naturalized by Parliament he shall Inherit his Fathers Land but so he shall not although made Denizen because no Alien naturalized by Act of Parliament is to all intents and purposes as a naturall borne subject but so is not a Denizen Dower â—enant by Courtesie 10 If a man be seised af an Estate of frée-hold and inheritance in lands c. and take an Alien to Wife and dieth Co. ib. 31. b. 4. Co. l. 7. 25. a. 4. Calv. Case she shall not be endowed neither shall the Baron be Tenant by the courtesie Howbeit it is otherwise in the Kings Case c. And Edmond the Brother of E. 1. married the Quéen of Navarre and died And it was resolved by all the Iudges that she should be endowed of the third part of all the lands whereof her husband was seised fée â—is-ability of â—ing 11 It is a good plea in dis-ability of the person Litt. §. 189. Co. ib. 129. b. 1. Co. l. 7. 16. a. 4. in Calv. Case Co. ib. 17. a. 3. Calv. Case that the Demandant or Plaintiffe is an Alien vee and this exception holds good in all Actions both reall and personal against an Alien enemy but not absolutely against other Aliens for the Law doth distinguish betwéen an Alien that is a subject to one who is an enemy to the King and one that is subject to one who is in league with the King And true it is that an Alien Enemy shall maintaine neither Reall nor Personal Action Donec terrae fuerint communes viz. till both Nations be in peace But an Alien that is in league shall maintain personal Actions For such an Alien may trade and traficke buy and sell And then of necessity he must be of ability to have personal Actions but he cannot maintaine either reall or mixt actions So also an
and the title of the Tenant at will is of little or no consideration in Law and also vanisheth because derived from A. who had no interest because granted in futuro and therefore void yet both of them are estopt to say Quod partes finis nihil habuerunt And of such estoppels which are by matter of Record and trench to the wrong and disherision of those in Remainder or Reversion they shall take advantage albeit they are not parties thereunto as of an Ayde prier of a stranger or by acceptance of a Fine Sur conusans de droit come ceo c. albeit the Reversioner or Remainder be not partie to the Record yet he is privy in estate to take advantage of a Forfeiture by any matter of Record done to his disherison Co. l. 5. 13. b. in the Countess of Shrewsburies case Dyer 122. b. 15. Tenant at will is not chargeable with permissive waste Tenant at will chargeable with voluntary waste as negligently suffering the house to be burnt or the like but if Tenant at will commit voluntary waste viz. in distroying the houses felling the wood or the like in such case a generall Action of Trespasse lyeth against him Vide Litt. fol. 15. for when Tenant at will takes upon him to do unlawfull Acts and such as none may do but the owner of the Land they amount to a determination of the will and of his possession and the Lessor in such case shall have a generall Action of Trespasse without any Entry 15. E. 4. 26. So if the Bailee of goods as a horse c. kill them the Bailor shall have a generall Action of Trespass for by the killing the privity is determined And in some cases when confidence is put in the party if any wrong be done an Action upon the Case may also lye for negligence albeit the Defendant come to the Possession by the Act of the Plaintiff as where a man delivers a Horse to another to be safely kept 12 E. 4. 13. and the Defendant equum illum tam negligenter custodirit quid ob defectum bonae custodiae Interijt here an Action upon the case will lye So it is also against a Shepheard that keepes any Sheep so negligently that some of them are thereby drowned or otherwise destroyed Co. l. 5. 14. b. 2. in the cases of Ecclesiasticall persons 16. Regularly the King shall not be bound by an Act of Parliament Statutes to present fraud bind the King unlesse he be therein particularly named and yet all Statutes which are made to suppress wrong and to take away fraud shall bind the King albeit he be not named in them by express words for Religion Justice and Truth are the sure supporters of the Diadems of Kings And therefore it is agreed in 35 H. 6. 60. that the King shall be bound by the Statute of West 2. cap. 5. which makes provision against tortious usurpations although the King be not named in the Act So in the Lord Barkleys case reported by Master Plowden if a gift in tail be made to the King he shall not alien to defraud him in the Reversion or his Issues but is bound by the Statute of West 2. de donis conditionalibus Co. l. 5. 27. b. 2. in Russels case 17. An Infant Executor brings an Action of Trover and Conversion for a Chest with divers summes of money and Iuels in it A release of an Infant Executor the Defendant pleads a release of the Plaintiff In this case albeit a release by him upon payment of money or delivery of a Legacy and all Acts in pursuance of his office of Executor are strong and good yet a release in this case is adjudged not valid to bind him because first it would amount to a devastavit and then the infant should be chargeable to answer it of his own goods and secondly it would be a wrong which an infant by his release can never do Restraint by condition if there be a tort 18. If a man make a gift in tail Co. l. 6. 41. b. 1. in Sir Anthony Mildmays cases Co. Inst pars 1. 223. b. 4. upon condition that he shall not alien this condition to some intent is good and to other some void for if he make a Feoffment in fee or any other estate whereby the Reversion is discontinued tortiously the Donor shall enter for the condition broken for every act that is prohibited by Law or maketh a tort a man may prohibit by condition Vide 10 H. 7. 11. Howbeit if in such case the Donee suffer a common Recovery the condition cannot by the Law extend to it because that is lawfull whereas the other is tortious and against Law So if Feoffment be made to Baron and Feme in fee upon condition that they shall not alien in this case they are not thereby restrained to alien by levying a Fine both of them together because that is lawfull and incident to their estate but they cannot alien by Deed because that is tortious and against Law likewise if a man enfeoff an Infant in fee upon condition that he shall not alien this shall not restraine him to alien at his full age for that were repugnant to the liberty that the Law gives in case of Fee-simple according to Litt. fo 84. a. Howbeit such a condition shall restraine him from aliening during his non-age for that is tortious and against Law and thereupon the Feoffor shall enter c. Co. l 6. 70. a. 1. in Sir Moyle Finches case Right cannot incorporate with wrong 19. There is such an extreame enmity betwixt an estate gained by wrong and the ancient right that the right cannot possibly incorporate it selfe with an estate gained by wrong but it will rather suffer extinguishment then passe with it And therefore if the Donee be disseised and the Donor disseise the Disseisor and make Feoffment in fee and the Donee make regresse the Donor shall not have the Reversion but the Disseisor for there is a diversity betwixt an estate and a right as where the Reversioner disseiseth the Donee or Lessee for life and then makes Feoffment in fee upon regresse of the Donee or Lessee the Reversion is left in the Feoffee and this is by force of the Feoffment but where the Donee or Lessee is disseised here the Reversioner hath but a right which he cannot transfer to another and therefore when he disseiseth the Disseisor and makes Feoffment this passeth the estate which he gained by Disseisin and extinguisheth his ancient right which he could not transfer to another and then the first Disseisor hath the first possession and a better right then the Feoffee of the Reversioner because he comes in under him who disseised the first Disseisor and hereby the ancient right is extinct for the Reversioner cannot have it because that would be repugnant to his own grant neither can the Feoffee have it because a right cannot be
and put to a right because he that hath the estate in him cannot be put to his Action Entry or Claime for that he hath already that which Action Entry or Claime can vest in him or give him And therefore in vaine was the bargaine and sale and Fine when they could not alter the estates of them in Remainder Co. l. 10. 90. a. 4. in Doctor Leyfields case 19. Colour shall not be given in any Action Colour to the Plaintiff where the Plea goes in bar of the right for it were in vaine to give colour of right and to bar it after As in Assize or Writ of Entry in nature of an Assize if collaterall Warranty be pleaded and the Defendant relye upon it or if an Estoppell be pleaded or Fine levyed with Proclamations c. there is no need of any colour to be given because the Plaintiff is barred albeit he had right So it is also where the Plaintiff conveys the title unto him by Letters Patents of the King or by Act of Parliament for that bars the right c. it is otherwise where the Possession is onely barred c. vide pl. ibid. P. C. 8. b. 3. in Fogassaes case 20. When a man is not bound to doe a thing Not tyed to answer in a Plea concerning it he need not make answer thereunto as in Fogassaes case exception was taken for that the suerty was not named that was bound for answering the custome and it was said that because the Statute speaks of no surety and the agreement might be good without surety it had been in vain to speak of it or to make answer thereunto and thereupon that exception quasht Death not traversable 21. In a Formedon in Reverter or Remainder P. C. 32. b. 1. Colthrist versus Bevishin a man shall not shew the death of the particular Tenant because it is but a Conveyance and not traversable nor issuable So in Colthrist and Bevishins case the Defendant shall not shew the deaths of Henry and Elenor Bevishin because the Plaintiff Colthrist should have traversed it and said that they were alive he should confesse that he had not title to the Land before their lives and would have destroyed his own Action And therefore in regard their deaths were not traversable it was in vaine for the Defendant to shew it by consequent he shall not be compelled to do it Covin 22. A man need not shew any speciall cause of Covin when it is apparent P. C. 49. b. 2. in Wimbish and Talboies case Ibid. 55. b. 3. as when Feme Tenant in tail for her Ioynture by Covin appeares in a Formedon in Remainder brought against her by one that pretends title in Remainder and she appeares the first day without Essoine View c. and Iudgement is had against her by nihil dicit here the Covin is apparent and need not be specially shewed for it is in vaine to shew that which is apparent of it selfe So it is a vaine thing to aver that an Horse bought which wants eyes is blind when it is apparent that he must be blind when he wants eyes If the Tenant enfeoff his Son within age by collusion the Lord shall seise him for his Ward and shall not be forced to shew this Collusion in speciall causa qua supra Pretenced titles 23. In an Action upon the Statute of 32 H. 8. 9. against buying pretenced titles P. C. 81. a. 4. in Partridges case against Strange and Croker the Plaintiff need not aver the title or right to be pretenced because the Statute declares and intends the title to be pretenced when neither his Ancestors nor those from whom he claimes have injoyed the Land in Possession Reversion or Remainder nor received the rents or profits thereof for a yeare before the purchase thereof and therefore because it were in vain for him to aver the pretenced title because the Statute makes it so he shall not doe it 153. Non licet quod dispendio licet Surrenders 1. M. Leases for twenty one years to S. and is bound to make a new Lease to S. upon surrender of the old Co. l. 5. 21. a. 4. in Sir Antohny Maines case M. Leases to another for eighty years by Fine and S. brings an Action of debt upon the Bond In this case albeit S. may surrender and ought to do the first act viz. to surrender yet M. hath forfeited his Bond although S. never surrender for S. shall not now be forced to surrender because if he should surrender M. cannot now make him a new Lease which w s the effect and end of the Surrender for by such Surrender S. will lose his old terme without possibility of having a new one And Non licet quod dispendio licet Parson not to â—esigne 2. I. Parson of the Church of G. was bound in an Obligation to the Prior of E. to resigne his Church to the Prior for a certaine Pension Co. l. 5. 21. b. 1. ibid. 14 H. 4. 19. a. as it should be agreed the Parson and Prior agree for a Pension of C. s. yet the Parson refused to resigne And 14 H. 4. 19. a. it was the opinion of all the Court that albeit they were agreed of the Pension yet the Parson was not bound to resigne untill he might be sure of his Pension and that could not be without Deed And therefore in such case the Parson was not bound to resigne untill the Prior should â—ender a Deed of the Pension whereby he might be sure 〈◊〉 it 154. It favoreth Truth Faith and Certainty Vide Max. 41. â—9 Co. Inst pars 1. 139. a. 3. 1. Regularly upon a nonsuit the Demandant or Plaintiff may againe commence an action of like nature c. Howbeit in an Attaint Nonsuit in Attaint peremptoria if the Plaintiff after apparance be nonsuit it is peremtorie and he is thereby barred from ever bringing an attaint against the first iury againe and the reason is for the faith that the Law gives to the verdict and for the terrible and fearefull judgment that should be given against the first jury if they should be convicted and therefore upon the nonsuit the Plaintiff shall be imprisoned and the pledges amercied Vide infra 11. Co. ibid 227. b. 3. Co. ibid b. 4. L. S. 366. 2. A speciall verdict or at large may be given in any action A speciall verdict and upon any issue be the issue generall or speciall because the truth of the cases may be the better discovered and discussed and justice and right donâ— so if a man seised of lands in fee le ts them for life without Deed rendring rent upon condition of re-entry upon non-payment of the rent whereupon if the lessor enter and the lessee bring an assise of Novel Disseisin the jurors may find the matter at large and the Iudges ought to adjudge it for the tenant albeit
the King by the Charter of the 11 of E. 3. or by Act of Parliament confirming that Charter was because there were divers priviledges granted him which could not possibly be granted by Charter but must of necessity be by Act of Parliament Vide. pl. ibid. Melius inquiâ—â—d 18. A Melius Inquirendum to find what Land I. S. held of King James at the time of his death Co. l. 8. 168. a. 4. in Paris Sloughters case being in the 40 year of Queen Eliz. shall be quasht for the impossibility thereof for it is impossible that I. S. should hold any Land of King James in the 40 yeare of Queen Eliz. he being then King of Scotland 156. Non cogit ad Impossibilia Impotentia excusat Legem Shewing a Deed. 1. If a Deed remaine in one Court it may be pleaded in another Court without shewing it forth Co. Inst pars 1. 231. b. 4. because he cannot have it out of the other Court and Lex non cogit ad impossibilia vide Co. l. 5. 74. b. 4. in Wymarks case Claime 2. Regularly Litt. S. 434. Co. ibid. 258. a. 3. where a man doth lesse then the commandment or authority committed to him there the commandment or authority being not pursued the Act is void and where a man doth that which he is authorized to doe and more there it is good for that which is warranted and void for the rest yet both these rules have divers exceptions and amongst the rest this for one that if a man be sick that he cannot go to the Land nor any part thereof to make his claime and he commands his Servant to do it and the Servant dare not go to the Land for feare of some bodily hurt in this case if the Servant go as neere the Land as he dare and there make claime for his Master that shall suffice albeit his Master bade him go to the Land because Impotentia excusat legem for seeing the Master cannot and the Servant dare not enter into the Land it sufficeth that he come as neere the Land as he dare Descent 3. Descent shall not take away Entry of a man in Prison at the time of the Descent cast because he could not make continuall claime Litt. S. 436. Co. ibid. 259. a. 2. when he was in Prison being there kept as it is presumed in Law in salva arcta custodia without intelligence of things abroad Descent 4. A Descent cast during the vacation of an Abbey Litt. S. 443. Co. ibid. 263. b. 2 shall not take away the Entry of the next Successor because seeing by the death of the Abbot which is the Act of God no person is able to make continuall claime therefore a Descent during that time shall not prejudice the Successor for Impotentia excusat legem Co. l. 5. 22. a. 3. in Laughters case 5. Where the Condition of an obligation is in the disjunctive Condition disjunctive viz. for the Obligor either to do one thing or another and both the things possible at the time of the delivery and afterwards one of them becomes impossible by the Act of God in this case the Obligor is not bound to perform the other for Impotentia excusat legem Co. l. 5. 115. a. 3. in Wades case 6. If a man be bound to pay 40000 l. at such a day Tender of money if he tender it in baggs it is sufficient for it is not possible it should be numbred within the compasse of one day Co. l. 6. 21. b. in Butler and Goodalls case 7. Lawfull Imprisonment without Covin Non-residence the want of a Parsonage House and sicknesse without fraud when the Incumbent by the advice of his Phisitian removes for better aire or the like are good excuses for non-residence against the statute of 21 H. 8. cap. Co. l. 8. 172. Hales case 8. If the Heire holding of the King by Knights Service tender his Livery that includes tender of Homage Tender of Livery and therefore after such tender he may sell any part of his Land and if he dye after tender and before Livery sued out the King shall not have the profits of his Lands longer then to the time of the Tender because by his death which is the Act of God the shewing out of his Livery is become impossible and Impotentia excusat legem Co. l. 3. 73. a. 1. in Doctor Husseyes case 9. A Feme Covert is not within the Statute of Westminst 2. cap. 39. Ravishment of Gard VV. 2. c. 39. concerning Ravishment of Ward for the Law that disables her to have any thing wherewithall to satisfie the value of the Marriage doth also free her from the punishment of Banishment and Imprisonment because it is impossible she should satisfie it when she hath nothing to do it withall for Lex non cogit ad impossibilia c. vide Max. 34. Co. l. 10. 139. b. 3. in Knightlies case 10. If a man be bound to repaire a Wall against the flowing of the Sea if it fall into decay by his default and negligence Wast a wall of the sea he shall be solely charged with the repaire thereof but if it be overthrown or endamaged by the violence of the water without his fault by the Stat. of 23 H. 8. they are to be equally charged who have losse by it for Impotentia excusat Legem vide Pl. ibid. 157. It disfavoureth Falshood Fraud and Covin Vide Dyer 294. 8. Co. Inst p. 1. 17. b. 3. 1. A man hath as absolute ownership and property in an Advowson Advowson how pleaded as he hath in Lands or Rents yet he shall not plead that he is seised thereof In Dominico ut feodo because that Inheritance savouring not De domo cannot either serve for the sustentation of him or his Houshold neither can any thing be received for the same for defraying of charges and therefore he cannot say that he is seised thereof In Dominico suo de feodo Whereby it appeareth how the Common Law doth detest Symmony and all corrupt Bargaines for Presentation to any Benefice but that Idonea persona for the discharge of the cure should be presented freely without Expectation of any thing nay the Common Law is so cautelous in this point that the Plaintiff in a Quare Impedit should recover no Damages for the losse of his Presentation untill the Statute of Westminster 2. cap. 5. And that is the reason that Guardian in Soccage shall not present to an Advowson because he can take nothing for it whereof to make Account for by the Law he can meddle with nothing that he cannot account for So in a Writ of Right of Advowson the Patron shall not alledge the Explees in himselfe but in the Incumbent For which Reasons of an Advowson a man shall plead that he is seised De advocatione ut de feodo jure
saved for that would be repugnant and make the expresse gift void and vaine Act of Parliament repugnant 20. It appeares in our Books that a saving in an Act of Parliament which is repugnant to the body of the Act is void Co. l. 1. 47. in Alton Woods case as in Plowdens Commentaries fol. 563. b. where the supposed Attainder of the Duke of Norfolke was by Act of Parliament in primo Mariae declared to be void and null ab initio saving the Estates and Leases made by E. 6. This saving was void for when the Attainder was declared to be void the said saving was against the body of the Act and therefore repugnant and void The like 21. It is enacted by the Statute of 31 H. 8. cap. 13. that all Houses of Religion Co. ibid. a. 3. and their Possessions then or afterwards to be dissolved shall be the Kings in the same estate and condition as they were at the time of the making of the said Act saving to all strangers their Interests c. After the said Act the Abbot of Ramsey grants the next avoydance of a Church of his Patronage and after the Abbey is dissolved and it was adjudged Mich. 6. 7. Eliz. Dyer 231. that the Grant was void and the saving repugnant to the body of the Act for if the Advowson were in the King in the same estate and condition as it was at the time of the making of the Act then a Grant made after cannot be saved 22. If Land escheat to the King by Forfeiture of Treason Co. ibid. Co. l. 8. 118. b. 3. Doctor Bonhams case and after this Land is given to another by Act of Parliament The like saving to all others their Rents Services c. This saving is repugnant and void for they were extinct by the Forfeiture 14 Eliz. Dyer 313. The like 23. By the Statute of 1 E. 6. of Chanteries all Services Rents Co. Inst ibid. a. 4. c. are saved yet this saving as to Services is repugnant and void for the King cannot hold of any as it is held 14 Eliz. Dyer 313. a. 24. In the case of Alton Woods Co ibid. 52. b. 1. the Mannor of Abbottesley being expressely given to the King by the Statute of 28 H. 8. the generall saving cannot extend to save the estate The like c. of him that was seised of the Land for that would be repugnant to the body of the Act and would make the Act vaine and idle Co. l. 1. 84. a. 3. Corbets case Co. l. 6. 40 b. Sir Anthony Mildmayes case 25. C. covenants to stand seised to his own use for life Perpetuities the Remainder to R. in tail the Remainder to A. in tail c. upon this Condition or Proviso that if any of these shal resolve to bar the said estate that then his estate shall cease as if he were naturally dead and be to the next Remainder Here this Proviso is repugnant and against Law for an estate taile cannot cease by the onely death of the Tenant in tail but by his death without Issue and death naturall or civill is requisite to every Descent Reversion or Remainder upon the determination of an estate taile Vide pl. ibid. Co. ibid. b. 3. 26. In 8 Assis Pl. 33. A man gives Land to Mary and Johan his Sisters Joynt estate repugnant Et haeredibus de corporibus earum legitime procreatis whereby they had a joynt estate for life and severall Inheritances and the Donor intending that neither of them should breake the Ioynture but that the Survivor should have all per jus accrescendi added this clause Sub hac forma quod illa quae illarum diutius vixerit tenebit terram illam integram Howbeit in as much as his intent is contrary to Law if the Ioynture were severed by Fine levyed the Survivor shall not have the part so severed by the said clause which he had so inserted of his owne cenceit and imagination repugnant to Law and reason Co. ibid. b. 4. 27. In Plesintons case in 6 R. 2. which see tit Quid juris clamat Condition repugnant 20. A man makes a Lease upon Condition that if the Lessor grants the Reversion that then the Lessee shall have fee In this case if the Lessor grant the Reversion by Fine the Lessee shall not have fee for the Condition is repugnant and void Vide Pl. Com. 32. a. 4. Colthirst and Bevish Co. l. 1. 176. b. 1. Mildmayes case 28. When an use is raised in consideration of Fatherly love Proviso repugnant c. with a Proviso to make Leases the Proviso is repugnant and void because when the Indenture is once sealed and delivered his power of making Leases is taken away it is otherwise where uses are raised upon a Fine Recovery or Feoffment for there needs no consideration Co. l. 2. 23. b. 4. in Baldwins case 29. In Baldwins case in the 2 Report Premisses and Habendum repugnant these Resolutions were agreed for Law 1. As to things which take their essence and effect by the Delivery of the Deed without other ceremony and which lye in Grant when there is variance between the Premisses and the Habendum In such case the estate which so passeth by the Delivery of the Deed and is most advantagious to the Grantee shall stand and the other shall be void for the repugnancy So if a man grants rent on Condition c. out of his Land by the Premisses of the Deed to a man and his Heirs Habendum to the Grantee for years or life in this case the Habendum is repugnant for fee passed in the Premisses by the delivery of the Deed and therefore the Habendum for years or life is repugnant and void 2. If a man by Deed grant a Rent in esse or a Seigniory in the Premisses to one and his Heires Habendum to the Grantee for years or for life albeit it another thing or ceremony is requisite viz. Attornement besides the delivery of the Deed yet in as much as the thing lyes in Grant and both the estates viz. as well the estate in fee as the estate for years or for life ought to have one and the same ceremony viz. Attornement to passe it for that cause in such case the Habendum is also repugnant and void 3. When a man gives in fee by the Premisses Habendum to the Lessee for life in this case the Hebendum is repugnant and void for one and the same ceremony viz. Livery is requisite to both the estates and therefore when Livery is made according to the forme and effect of the Deed it shall be taken most forcibly against the Feoffor and most for the advantage of the Feoffee and the Habendum in such case is repugnant and void and untill Livery the Feoffee hath but an estate at will 4. When to an estate limited by the Premisses a
uses that the honor of the Law be not prejudiced nor any way blemished And therfore in Porters case in the 1. Rep. one of the reasons why good charitable uses ought not to be expounded to be within the Statute of 23 H. 8. cap. 10. was because it would be dishonourable to the Law of the Land to make such good uses void and to restrain well-minded people to give lands to good and charitable uses And if that or any other Statute should be made directly against the Law of God Doct. Stud. lib. 1. cap. 6. as if it should be ordanied that none should give Alms to any in what necessity soever they were or the like the Iudges in point of Honor to the Law ought to adjudge such a Statute void Libel 6 In a setled state of Government if an injury be offered Co. l. 4. 125. b. 1. In the câ—ses of Libels the party grieved ought not to revenge himself by the odious Course of libelling or otherwise but ought to make complaint thereof to the Magistrate in an ordinary Course of Law Kings grant 7 It hath been alwayes the gravity of the antient Sages of the Law to construe the Kings grants beneficially for his Honor Co. l 6 6. a. Sir John Molins case Co. l. 9. 131. a. in Bewleys case and the relief of the Subject and not to make any strict or literal construction in subversion thereof And therefore E. 3. being Lord an Abbot Mesne and the Tenant attainted of Treason the King grants to I. M. to be held of us and other chief Lords of the fee by the services c. In this case the Mesnalty was adjudged to be revived for that the words were sufficient to create a tenure in the Mesne as it was before the Treason because that seemed to be the Kings intention and was also consonant to equity viz. that the Mesne who offended not should not lose his services And therefore in such case the grant shall be taken beneficially for the Honor of the King and for the relief of the Mesne neither yet can the words Tenendum c. have any other reasonable construction Arrest of Peers 8 The person of one who is in Law a Countess by mariage Co. l. 6. 52. b 3. The Countess of Rutl. case or by descent is not to be arrested for debt or treâ—pass for albeit in respect of her sex she cannot sit in Parliament yet is she a Péer of the realm and shall be tried by her Péers as appears by the Statute of 20 H. 6. 9. which was but a declaration of the Common Law And there are two reasons why her person shall not be arrested in such cases the one in respect of her dignity and the other in respect that the Law presumes that she hath sufficient lands and tenements in which she may be distrained There is the same reason for a Lord that is a Péer of Parliament Oath of Allegeance 9 To preserve the Kings Honor and Safety Co. l. 7. 6. b. 3 in Calvins case and good order in the Government of the Commonwealth the Oath of Allegiance was invented and enjoyned as it is said in Lamb. 135 136. by King Arthur to be taken in Folkmotes now called Turns and Leets Hujus legis authoritate expulit Arthurus Rex Saracenos et inimicos a Regno c. Et hujus legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos occidit Homage fealty 10 Homage and Fealty Co. l. 10. 108. b. 2. in Humfry Lofields case were at first ordained for the preservation of order in the Common wealth and being servicces of fidelity do require multiplication And therefore if a man seised of two acres the one at the Common Law and the other in Borough English and make a gift in tail of both and the donée having issue two sons dies both the sons shall make fealty There is the same Law also of Homage whether it be reserved by the party or created by the Law so likewise if the donor die having two sons both the s os shall have homage and fealty King 11 In a writ de Cautione admittenda these words F.N.B. 66. a. De gratia nostra speciali are not words of necessity but of form only for the Honor of the King for he ought of right to make restitution of the goods of the Clerk before seised by the Sheriff Fines in Courts 12 For the better preserving of order in the Commonwealth Co. l. 8 38 b. 3. in Grieslyes case if any contempt or disturbance be committed in any Court of record the Law giveth the Iudge or Iudges thereof power to impose upon the offenders a reasonable fine And this holds not only for the Superiour Courts at Westm but likewise for all inferiour Courts which are of Record And therefore in a Léet being a Court of Record and the Steward Iudge there if any contempt or disturbance to the Court be committed before the Steward there he may impose a reasonable fine upon the offendors as if the Bailiff there refuse to execute his office the Steward may assess upon him a reasonable fine and with this agrées 7 H. 6. 12. b. So if a Tithingman refuse to make presentment in a Leet the Steward may impose a reasonable fine upon him as it was held 10 H. 6. fo 7. Also if one of the Iury in a Léet depart without giving up his verdict he shall be fined by the Steward as appears in the book of Entries fol. 149. Et sic de similibus Dyer 107. b. 27. 13 When a Peer of the Realm is party to a sute Challenge there ought to be one Knight at least impannelled of the Iury otherwise it is a good Challenge for the Peer 200 Publique quiet Co. Inst pars 1. 5. a. 3. 1 No Subject can build a Castle or house of strength imbattelled Fortresses c. or other fortress defensible without the Kings license for the danger which might ensue in disturbance of the peace and quiet of the Realm if every one at his pleasure might do the like Co. ibid. 72. a. 4. 2 Albeit Escuage incertain was due by tenure Escuage yet because the assesment concerned so many and so great a number of the Subjects of the Realm lest it might disturb the publique quiet thereof it could not be assessed by the King or any other but by the Parliament only Co. ibid. 130. b. 3. 3 Britton treating of an Essoin beyond the Grecian Sea amongst other things saith thus None shall go beyond sea Nul grand Seignior ne Chivalier de nostre Realm ne doit prender chemin sans nostre conge car issint poet le realm remainer disgarny de fort gente because if many others should do the like and by that means the Realm be left unfurnished of able and powerfull
certain of their friends to make partition between them who make partition of the Rooms and Chambers of the Castle assigning some to one and some to another c. this Partition is void because a Castle which is to be kept intire pro bono publico and for the safeguard of the Commonwealth will not admit of any such division albeit such a partition of other lands that are partable had been good in Law and binding to the Coparceners after election of their several Parts Co. ibid. 31. b. 3. Dower Neither shall such a Castle be assigned for Dower albeit the parties consent thereunto because the publique shall be preferred before the privat Co. l. 7. 23. a. 3. Buts case 2 A. seised of black acre in fee Rent out of a lease for years and also possessed of white acre for years grants a rent charge out of both to B. for his life with Clause of Distress c. In this case the estate of the rent being a Franktenement according to the purport of the deed cannot issue out of the term for years but out of the land only which the grantor had in fee-simple because the Franktenement of the rent cannot issue out of a Chattel and the intire rent cannot be Franktenement out of black acre and a chattel out of white acre and to make two rents when one only is granted would be injurious Neither yet can the contract and mutual agreement of the parties charge such a thing with a rent which is not chargeable by Law as out of an Hundred or Advowson 30 Ass Pl. 5. or out of a Fair 14 E. 3. Scire facias 122. The Earl of Kents case Neither can a rent be granted or reserved of any estate of Franktenement out of any other Franktenement which is not mainourable either in possession reversion or by possibility but is only haereditamentum incorporeum for Pacta privata non derogant juri communi And in an Assise they cannot be put in view neither can any distress be taken in them And in the case above albeit white acre be haereditamentum corporeum and mainourable yet in respect of the exility and incapacity of the interest which the grantor hath in it that rent of Franktenement cannot issue out of it but out of the land in fee simple And in that case also in an Assise brought for the rent the land in fee shall be only put in view And if the Grantee should accept a lease or grant of white acre that will not suspend his rent Co. l. 9. 128. a. 4. in Sondayes case 3. Term. Hill 8. Iac. it was resolved by the two Chief Iustices Recovery Title the Chief Baron and the Court of Wards that no condition or limitation be it by act execute or limitation and use or by devise in a last will can barr tenant in tail to alien by a Common recovery for the causes and reasons reported at large in Sir Anthony Mildmayes case in the 6. Report Co. l. 9. 141. b 3. in Beaumonts case 4 If there be Lord and tenant of a Carue of land Confirmation and the tenant hath issue and is attainted of felony and the King pardons him and after the Lord confirms the estate of the tenant and the tenant dies In this case the Lord shall have the land against his own confirmation for the confirmation cannot add to the estate of the tenant a descendible quality to him who was disabled to take the land by descent For Pacta privata juri publico derogare non possunt The like 5 Baron and feme being tenants in special tail Co. ibid. 138. b. 141. b 4. the remainder to the heirs of the Baron the Baron levies a fine to E. 6. who grants to the Earl of Hunt in fee the Baron dies and the Feme enters and the E. of H. confirms her estate Habendum to her and the heirs of the body of the Baron then the Feme dies having issue a son In this case the confirmation is void for it cannot add a descendible quality to the issue in tail who was disabled by the fine to take by descent Again if that confirmation should add to the estate of the feme a descendible quality it would in effect as to that point repeal no less than two Acts of Parliament viz. 4 H. 7. 24. and 32 H. 8. 36. by which the estate in tail is barred as to the issues and the issues are disabled to claim the Land by force of the said estate tail Sed Pacta privata c. Common Recovery 6 Tenant in tail cannot be prohibited by any condition or limitation to barr the issues in tail as also the reversions or remainders Co. l. 10. 38. b. 1. 4. Mary Portingtons case by suffering a Common Recovery much less can he be prohibited to prevent by any such condition or limitation a going about conclusion or agréement to suffer such a recovery for to suffer such a recovery to the purposes aforesaid is an incident so inseparably annexed to an estate tail that it cannot possibly be prohibited by any such condition limitation or other agréement whatsover between the Parties Conventio privatorum non potest c. So likewise Dower or tenancy by the Curtesie cannot be restrained by condition because they are annexed to the estate tail by Law no more than a tenant by the Curtesie or tenant in tail after possibility can be by condition made punishable for waste Also things ordained by Statute cannot be restrained by condition c. as that the tenant in tail shall make no leases according to the Statute of 32 H. 8. 28. or levy a fine according to the Statutes of 4 H. 7. 24. 32 H. 8. 36. to barr the issues for none of these which are incident to his estate by Act of Parliament can be restrained by condition or limitation Auditors of the Wards 7 The King himself cannot do any thing against an Act of Parliament when the subject hath also an interest in it Co. l. 11. 3. b. 4 in Auditor Curles case And therefore albeit the words of the grant to the two persons ordained by the Statute of 32 H. 8. 46. to be Auditors of the Court of Wards be conjunctim divisim et alterius eorum diutius viventis yet that being an office of trust there shall be no survivor thereof for that it being enacted by that Statute that there should be two persons c. which should have a judicial voice the King cannot constitute one only for the Subject by the Act hath interest therein Et securius expediuntur negotia commissa pluribus Howbeit the King may constitute one at one time by one patent and another at another time by another patent And albeit he may so do yet he who is first constituted hath not any judicial voice until the other be constituted also for it is provided by the Statute
in the Case of a common person Co. ib. 31. b. 4. 2 If a Common Person take an Alien to Wife and die An alien albeit he were seised of Lands in Fée or Fée taile yet shall not his Wife be endowed but if the King take an Alien borne and die she shall be endowed by the Law of the Crowne And yet Edmund brother to E. 1. married the Quéen of Navarre Rot. Parl. 26 E. 1. Rot. 1. and died And it was resolved by all the Iudges that she should be endowed of the third part of all the Lands whereof her husband was seised in fee. Co. ib. 90. a. 4. F. N. B. 33. p. q. r. 3 If a Bishop hath an Advowson and the Church becomes void Bishop Advowson and the Bishop dies neither the Successor nor the Executors shall present but the King because it is but a Chose in action Co. ib. 388. a. 2. F. N. B. 33. p. q. r. 4 A man holds the mannor of D. whereunto an Advowson is appendant of the King by Knights-service the Church becomes void Advowson Wardship Eâ—ecutors and then the Tenant dies his heire under age in this Case the King shall present and not the Executors of the Tenant And this is by reason of a prerogative that belongeth to the King to provide for the Church being void for where the tenure by Knight-service is of a Common Person the Executors of the Tenant shall present c. Co. ib. 108. b. 2. 5 Tenure by rendring yearly to the Lord a Bow a Sword Petty Serjeancie Soccage a Dagger a Gantlet or such other small things belonging to warre in Case of a Common Person is nothing else but plain soccage ab effectu because it had such effects and incidents as belong to soccage and neither ward nor marriage c. But in the Kings Case in respect of the dignity of the Kings Person it obtaineth the Name of Petie Serjeancie c. Co. ib. 118. a. 2. Litt § 177 178. 6 If a Villain purchase Land and alien it before the Lord enter Villein pâ—â—chas Land 〈◊〉 goods seisâ—â— the Lord is barred for ever For before the Lord enters he hath neither jus jure nec jus ad rem but onely a possibilitie of an Estate which Estate he must gaine by his entry And therefore if the Villain doth by way of prevention alien before the Lord doth enter the Lord is for ever barred of the possibilitie which he had to enjoy the Land Si autem servus vendiderit feodum Fleta l. 3. c. 13 Britt fol. 98. a. 19 E. 2. Dow. 171. quod sibi haeredibus perquisiverit antequam Dominus seisinam inde caeperit valet donatio Dominus sibi ipsi imputer quod tantum expectavit saith Fleta Howbeit if the Kings Villain purchaseth Land and alieneth before the King upon an Office found for him doth enter yet the King after Office found shall have the Land Quia nullum tempus occurrit Regi And yet after Office found the King shall not have the mean profits because the title commenceth by the seisure Litt. §. 178. It is otherwise of Goods in the Kings Case For if the Kings Villain acquire any Goods or Chattels the property of them is in the King before any seisure or Office And it is well said of an Ancient Author Mirr cap. 3. Britt fol. 88. Al Roy quant al droit de la Corone on á franch Estate ne poet nul temps accurre and another speaking in the Person of the King saith Nul temps nest limit quant á mes droits c. â—â—narty 7 Where a Church is presentative Co. ibid. 119. b. 4. 344 a. 4. it is full by admission and institution against any common Person but against the King it is not full before Induction â—â—een purâ—â—s sue 8 By the Common Law the Wife of the King of England is an exempt Person from the King Co. ibid. 132. a. 4. Co. l. 4. 23. b. 2. Clerke Pennyfathers Case and is capable of Lands and tenements of the gift of the King as no other Feme covert is and may sue and he sued without the King for the wisedome of the Common Law would not have the King whose continuall care and study is for the Publique circa ardua Regni to be troubled and disquited for such private and petty causes So as the wife of the King of England is of ability and capacity to grant and to take to sue and to be sued as a Feme sole by the Common Law Also the Quéen of England hath many other prerogatives viz. She shall find no pledges for such is her dignity as she shall not be amerced â—â—ince Neither she nor the Kings Son are restrained by the Statute of 1 H. 4. c. 6. concerning grants by the King In a Quare Impedit brought by her some say that plenarty is no plea no more then in the Case of the King â—â—enarty Baiâ—â—â—e Hundred If any Bailiffe of the Quéenes bring an Action concerning the Hundred he shall say In contemptum Domini Regis Regiâ—ae The Quéen shall pay no toll c. â—enancie part â—â—iened diâ—â—â—ain in all 9 If the Quéenes Tenant alien a certain part of his tenancie to one Co. ibid. 133. b. 1. and another part to another the Quéen may distraine in any one part for the whole as the King may do but other Lords shall distraine but for the rate Ane therefore where the Quéen so distraineth there lyeth a writ de onerando per rata portione â—rit of right â—â—rected Also the writ of right shall not be directed to the Quéen no more then to the King but to her Bailif otherwise it is when any other is Lord. â—yde counterâ—leaded 10 In case of Ayde prayer of the Quéen Co. ibidem it is Domina Regina inconsulta and the cause of the Ayde prayer shall not be counterpleaded no more then in the Kings Case And see where the ayde shall be granted of the King and Quéen and where of the Quéen onely and she of the King 14 E. 3. Voucher 110. 21 E. 3. 53. 22 E. 3. 3. b. 17 E. 3. 65. 10 E. 3. 17. 5 E. 3. 4. 15 E. 3. Ayde del Roy 66. 10 E. 3. 18. 26 H. 6. Ayde le Roy 24. â—â—otect Marleâ—â— distresse 11 A protection shall be allowed against the Queen Co. ibidem but not against the King neither shall the Quéen be sued by petition but by a praecipe The Quéen is not bound by the Statute of Marlebridge for driving a distresse into another County â—eath treason â—â—wag 12 If any do compas the death of the Quéen Co. ibid. 133. b. 2. and declare it by any over fact the very intent is treason as in the Case of the King No man may marry the Quéen Dowager without the
that a man may grant a Rent charge newly created out of Lands to a man and his Heires upon such a Condition and that in such case it shall be good because the Rent is of his own Creation but this is against the reason and opinion of Littleton Sect. 360. and also against the height and purity of a Fee simple Howbeit the examples aforesaid are to be understood of Conditions annexed to the Grant or Sale it self Condition not repugnant in respect of the Repugnancy and not to any collaterall thing As if A. be seised of Black acre in fee and B. enfeoffeth him of white Acre upon Condition that A. shall not alien black acre the Condition is good because the Condition is annexed to other Land and ousteth not the Feoffee of his power to alien the Land whereof the Feoffment is made and so no Repugnancy to the State passed by the Feoffment And so it is of gifts or Sales of Chattells reall or personall Again A man before the Statute of Quia Emptores terraum might have made a Feoffment in Fee and added further that if hee or his Heires did alien without Licence that then he should pay a Fine this had been good And it is said that then the Lord might have restrained the Alienation of his Tenant by Condition because the Lord had a possibility of Reverter so it is in the Kings case at this day because he may reserve a Tenure to himself Co. ib. 223. b 4. Co. l. 10. 38. b. 4. Mary Portingtons case Co. l. 5. 40. Sir Anthony Mildmayes case 11. If a gift in Taile be made upon Condition that the Donee c. Condition repugnant upon grant of an estate in taile shall not alien this Condition is good to some intents and void to other some for as to all those alienations which amount to any discontinuance of the Estate Taile as Littleton speaketh Sect. 362. or are against the Statute of Westminster 2. the Condition is good without question but as to a common Recovery the Condition is voyd because this is no discontinuance but a Bar and this common Recovery is not restrained by the said Statute of Westminster 2. and therefore such a Condition is repugnant to the Estate Taile for it is to be observed That to this Estate Taile there be diverse incidents First To be dispunishable of Wast Secondly The Wife of the Donee in Taile shall be endowed Thirdly That the Husband of the Feme Donee after Issue shall be Tenant by the Curtesie Fourthly That Tenant in Taile may suffer a common Recovery And therefore if a man make a gift in Taile upon condition to restraine him of any of these incidents the condition is repugnant and void in Law And it is further to be observed That a collaterall Warranty or lineall without assets in respect of the recompence is not restrained by the Statute De donis no more is a common Recovery in respect ot the intended recompence And Littleton ubi supra to the intent to exclude the Common Recovery saith Tiel alienation discontinuance joyning them together Inst pars 1. Co. 224. a. 2. 12. If a man before the Statute Do donis had made a gift to a man The like and to the Heires of his Body upon Condition that after Issue he should not have power to sell this Condition had beene repugnant and void Pari ratione after the Statute a man makes a gift in Taile the Law Tacite gives him power to suffer a common Recovery therefore to add a Condition that he shall have no power to suffer a common Recovery is repugnant and void Co. ibidem 13. If a man make a Feoffment to Baron and Feme in Fee Feoffment to Baron and Feme upon Condition that they shall not alien to some intent this is good and to some other intent it is void for to restraine an alienation by Feoffment or alienation by Deed it is good because such an alienation is tortious and voidable But to restraine their alienation by Fine is repugnant and void because it is lawfull and unavoidable 14. It is sayd that if a man enfeoff an Infant in Fee upon condition Infant that he shall not alien Co. ibid. this is good to restraine alienations during his minority but not after his full age Co. ibid. 15. It is likewise sayd Spirit Corpor. that a man by Licence may give Land to a Bishop and his Successors or to an Abbot and his Successors and add a Condition to it that they shall not without the consent of their Chapter or Covent alien because it was intended a Mortmain that is that it should for ever continue in that Sea or House for that they had it En autor droit for religious and good dses And note That whatsoever is prohibited by the intent of any Act of Parliament may be prohibited by Condition and shall cause no repugnancy Confirmation 16. A Disseisor makes a Lease for one hundred years Co. ibid. 297 a. 2. and the Disseisee confirmes the estate of the Lessee for fifty of those years this is a confirmation of the whole terme for when he had once confirmed the Lessees estate the whole estate was thereby confirmed and therefore afterwards to limit the terme to fifty years onely when the whole terme was confirmed before is repugnant and void but the Confirmation ought to have been of the Land for part of the terme so likewise might the Disseisee confirme part of the Land for part of the terme c. Vide infra 32. Habendum 17. In a Deed or other Conveyance of Land Co. ibid. 299. a. 2. when the Habendum doth either agree in substance with the Premisses or enlarge them the Habendum is good but when it abridgeth the Premisses it is repugnant and void Vide Dyer 272. 30. Repugnant covenant 18. John de Marre made a Charter to John de Burford of Fee-simple and the same day it was covenanted between them Co. ibid. 217. b. 3. 12 E. 2. Voucher 265. that John de Burford should hold the same Tenements for eight years and if Jo. de Marre did not pay to Jo. de Burford one hundred markes at the end of the terme that then the Land should remaine to Jo. de Burford and his heires In this case the subsequent Covenant was repugnant and void for first the Charter of the Fee-simple was absolute and the Covenant being made after the Charter could neither alter the absolute Charter nor upon a Condition precedent give him a Fee-simple that had a Fee-simple before A saving Repugnant 19. I.S. being seised of certaine Land in Fee Co. l. 1. 47. a. in Alton Woods case the same Land is given by Act of Parliament to the King in Fee saving the Estates Rights c. of all persons In this case the Estate of I. S the owner of the Land is not