and bounded by the Rule of Law and reason for discretion is a science of discerning truth from falshood right from wrong shadows from substance and betwixt equity and colourable glosses and pretences and not to doe according to their own wills and private affections Co. l. 6. 50. b. 4. in Boswels case 5 If tenant in tail suffer an usurpation and die Tail Usurpation the issue in tail is remedied by the equity of the first branch of Westm 2. cap. 5. because after the Statute of Westm 2. cap. 1. which created the estate tail and was made the same Parliament the issue in tail could not have a writ of right of advowson and therefore shall be aided by the said first branch as it is held 43 E. 1. 24 25. Vide 26 Ass pl. 4. 8 E. 2. Quare Impedit 167. 24 H. 6. 28. Co. l. 8. 40. a. 4. Grieslyes case 6 Amerciaments Amerciaments whether they are to be affeared in Inferiour Courts by the sutors or in Superiour Courts by the Iudges they are all termed Misericordia because whosoever hath the affearance of them ought to use great moderation Co l. 11. 44. a. 2. in Rich. Godfreyes case 7 The Reasonableness of fines in Courts distresses Fines Distress c. amerciaments and fines at the will of the Lord shall be adjudged by the Iustices and if they be outragious and excessive and by consequent injust and against the Law they have power to moderate them F. N. B. 75. a. c. 8 When an amerciament is excessive or outragious in a Court Baron or other Court which is not a Court of Record for trespass Amerciament or any other offence the Law hath ordained the writ of Moderata Misericordia to be directed to the Lord of the same Court or his Bailifs commanding them to take a moderate amerciament according to the quantity of the trespass c. and thereupon the party grieved may have an Alias Pluries and Attachment if he please See the Statutes of Magna Cart. cap. 14. and Westm 2. cap. 6. F. N. B. 103. b. 9 If a man be bound in a statute merchant Statute Merchant and after make feofment of parcel of his lands to one man and of another parcel thereof to another and the recognisée sues execution upon the Statute and hath execution against the one feoffée here this feoffée shall have an Audita querela against the other feoffée to shew cause why the recognisée hath not execution against his lands as well as against the lands which he hath c. Pl. Co. 17 a. 4. c. in Fogassaes case 10 Both the matter and words of penal Laws shall be taken strictly Penal Laws and not extended by Equity in prejudice of them against whom the penalty is to be inflicted As the Statute of Westm 2. cap. 11. ordains that if Accomptants shall be found in arrear before Auditors Arrestentur Corpora eorum et per testimonium Auditorum ejusdem Compoti mittantur et liberentur proximae Gaolae Domini Regis in partibus illis quousque c. Here the Statute is general that they should be imprisoned by the Auditors and saith not at what time so as by the Letter of the Statute the Auditors may imprison the Accomptants when they please after their accompt yet in 27 H. 6. 8. Tit. Barr 44. Br. Accompt 6. In debt upon arrerages of accompt it is adjudged that if the Auditors do not commit the Accomptant to prison presently after the accompt they can never commit him afterwards because the Statute is penal to him that is to be imprisoned c. Pl. Co. 67. a. 1. Dyve and Manâ—ngh 11 At the Comon Law before the Statute of 23 H. 8. 10. the Sherif had commandment and authority to let to bail such as were mainpernable Bail for the Common Law which is Common reason would alwayes have persons taken by writ bill or warrant upon personal actions or Indictments of trespass to be enlarged by sureties for that in a manner it stands indifferent whether they are guilty or no and then if they should not be guilty and yet restrained of their liberty it would be a great inconvenience which the Law would never suffer 12 Hob. 14. Sir Dan. Norton against Simmes 184 Restraineth a general Act or Rule and sometimes also a Particular contract if there be found any mischief or Inconvenience in them Wife no witness â—or her â—uâ—band 1 Regularly any person of competent age and discretion Co. Inst parâ— 1. 6. b. 4. and against whom there is no just exception by reason of perjury conviction of felony or the like may be admitted a witness in any cause yet in 10 Jac. in Com. Banc. in a case upon the Statute of Bankrupts it was adjudged that a wife cannot be produced as a witness either against or for her husband for that it might be a cause of implacable discord and dissention betwéen the husband and wife and a mean of great inconvenience Tender of marriage Co. ibid. 79 a. 3. 2 By the Statute of Westm 1. cap. 22. Tender of Mariage to an heir female before the age of fourtéen is void which is to be understood where the Lord may hold the land the two years after the 14 for within that time the Statute appointeth the tender but where the Lord cannot have the two years he may tender a marriage to the heir female at any time after the age of 12. and before 14. for so he might have done at the Common Law Frankmarriage Frankalmoâ—gn Co. ibid. 97. a. 4. Littl. §. 138. 3 An Argument drawn from inconvenience is forcible in Law and the Law that is the perfection of Reason cannot suffer any thing which is inconvenient And therefore the Law saith It is better to suffer a mischief viz. peculiar to one than an inconvenience that may prejudice many Frankmarriage is so called because it ought to be fréed of all service to the donor until the fourth degree be past yet the tenant in Frankmarriage shall make fealty to the donor for it were inconvenient that he should hold land and do no service at all for it So likewise tenant in Frankalmoign albeit he be fréed from all temporal service yet he shall say divine service for his Lord for it were inconvenient that he should do no service at all for the land he holds of his Lord. All land holden Co. ibid. 98. a. 1. 4 If an Abbot holds in Frankalmoign and he and the Covent under their Common Seal alien the land to a Lay-man In this case the secular man shall make fealty albeit the Alienors held not by fealty nor any terrene service but only by Spiritual services and those uncertain for in such case the Law createth a new Temporal service out of the land to be done by the Alienee wherewith the Abbot was not formerly charged
Montjoys case 5 Donée in taile is restrained by a particular Act of Parliament Warranty no barre quòd non faceret aliquid in nocumentum c. haered c. nisi pro juntur uxor c. reddend verum antiquum reddit c. Here if the ancient reservation was of gold he cannot reserve silver if two farmes were anciently let to several tenants for several rents he cannot let them both to one man for one intire rent nor demise parcel of the farme rendring rent pro rata nor reserve it payable at two feasts when it was before payable at four Howbeit he may reserve eight bushels of wheat instead of a quarter reserved before for they are all one in qualitie value and nature Co. l. 6 65. b. Sir Moile Finches case 6 The change of the name of a thing cannot alter the thing it selfe Reservation of rent but the new name may be used by the owner in conveyances praecipes c. without prejudice And therefore in Sir Moile Finches case in the 6. Rep. it was agréed that Exceter-house in the Strand and Dorset-house in Fleet-street having then within thrée yeares before gained those names might be well enough known to their neighbours by the same names and distinguished from all other houses and might also by those names be demanded in praecipes c. so in a praecipe brought of a Mannor in com Bedd by the name of the Mannor of Asple whereas it had béene formerly and was still called Asple guise here the tenant after the view demanded judgement of the writ unto which the demandant said the Mannor put in view was also known by the name of Asple 41 E. 3. tit Maint de briefe 49. 8 H. 6. 32. and it was adjudged that such a name gotten by the knowledge of the Country is sufficent Change of names without the true and proper name for in this sense it is true De nomine proprio non est curandum dum in substantia non erretur quia nomine mutabilia sunt res autem immobiles Co. l. 9. 110. b. in Meriel â—reshams case 7 Albeit Covina of it selfe and ex vi termini Corin. ought to be betwixt two yet when it is coupled with fraud which may be committed by one alone the Court shall adjudge upon the matter and not upon the strict Etymologie of the word for Plerunquè dum proprietas verborum attenditur sensus verborum amittitur Co. l. 11. 34. a. in Alexander Powlters case 8 The Statute of 23 H. 8. 1. House-burniâ— takes away Clergie from the House-burner the Statute of 1 E. 6. 12. gives the benefit of Clergie to all felons save onely for Murder Poysoning Burglary Robberie Horse-stealing and Sacriledge so as House-burning being in this Statute casus omissus such an offender séemeth thereby to be allowed his Clergie Neverthelesse because the Statute of 25 H. 8. 3. takes away Clergie from the House-burner that standeth mute challengeth above 20 or answereth not directly albeit the offence be committed in another County then where the offender is tried And likewise because the Statute of 4. and 5. P. and M. 4. takes away Clergie from the accessories of that offence it is adjudged that according to the intention of the makers of the Statute of 1 E. 6 House-burning is included within the meaning of that Act although it is a penal Law and quite left out of the letter of the same Act. Letters omitted 9 In 17 El. Dyer 342. a. Co. l. 9 48. a. The Earl of Shrewsburies case Co. l. 2. 17. a. Lauds case The four first letters in the name and stile of H. 7. viz. H. R. A. F. for Henricus Rex Angliae Franciae c. were left out of his Letters patents made to Simon Digby yet adjudged good And in the 38 H. 6. 33. A count in which it was alleadged that T. W. resignavit c. in manus J. Episcopi c. loci illius Ordinarii And exception was taken because it was not in manus Johannis Episcopi séeing the Letter J. signified nothing but yet the Count was adjudged good Wast 10 The Statute of Glocester cap. 5. Co. Inst 1. 54. b which gives an action of wast against the Lessée for life or yeares which lay not against them at the Common Law speaketh of one that holdeth for terme of yeares in the Plural number and yet it appeareth by Littleton Sect. 67. that although it be a penal Law whereby treble damages and the place wasted shall be recovered yet a tenant for halfe a yeare being within the same mischiefe shall also be within the same remedie although it be out of the letter of that Law 11 Vide Pl. Co. 109. b. sequent Indictment 11 False latin shall not quash an Indictment or a Count Col. l. 5. 121. a. 4. in Longs case for albeit an original writ shall abate for false Latin as it is holden in 9 H. 7. 16. 2 H. 4. 8. 44. E. 3 18. 10 E. 3. 1. yet Iudicial writs or a fine shall not be impeached for false Latin as is held in 9 E. 3. The same Law of an Indictment as praefato reginae for praefatae mamilla for mammilla c. Vide suprà 13 4. False Latine 12 In the 14 of E. 3. the King grants licence to found in Oxford Co. l. 11. 8. b. Doctor Ayries case an Hall under the name of the Hall of the Scholars of Oxford the Founder calls it the Hall of the Queen They present to a Church by the name of Provost Fellowes and Scholars of the Colledge of the Queen in the Universitie of Oxford The Incumbent devises the Rectorie which they confirme by the name of Provost Fellowes and Scholars of the Hall or Colledge of the Queen in the Universitie of Oxford Misnamer of a Colledge Notwithstanding these variances the presentation and confirmation are both good for a small variance is not to purpose if the description be such that no other can be intended as Abbot Richerd grants by the name of Richard 15 Talis interpretatio fienda est ut evitetur absurdum inconveniens ne judicium sit illusorium Pluralities of Benefices By the Statute of 31 H. 8. 13. Co. l. 4. 79. a. Digbies case if a Parson or Vicar having one benefice with cure of soules being worth eight pounds per annum or above take another and be instituted and inducted in the possession of the same c. the first shall be void Here albeit the Statute saith plainly instituted and inducted yet if he be onely instituted into it he shall lose the first before induction and this is in regard of the great inconvenience that would insue if the first benefice should not be void by institution to the second by force of the said Act for then one may be instituted to divers benefices with cure the great charge
Finch 11. Tenant in tail in remainder cannot falsifie a recovery 7 A. is Tenant in taile remainder to B. in taile Co. lib. 1. 62. Caples case B. grants a rent charge A. suffers a common recovery and dies without issue Here the Grantée of the rent shall not have it because he cannot falsifie the recovery being suffered by one that could not be chargable with the rent for if B. in the remainder cannot do it may lesse the Grantée that claimes under B. An Infant not remitted 8 If a man by Covin disseise the Discontinuée of Tenant in taile with an intent to enfeoffe the issue in taile being within age 19 H. 8. 8. per six Justices Co l. 3. 78. a. Fermors case although the Infant was not conscious of the Covin c. yet shall he not be remitted because the Infant that is in by him who acted the Covin shall be in the same plight with him that performed the covenous act A Copihold a firm estate 9 Custome hath so established and fixed the estate of the Copiholder Co. l. 4. 24. b. Murrel and Smiths case that by the severance of the inheritance of the Copihold from the Mannor the Copihold it selfe is not destroyed For in as much as the Lord himselfe cannot out the Copiholder much lesse shall he that claimes under him do it Executors shal lose arrerages 10 If the sonne be Lord and the father Tenant by certaine rent Co. l. 4. 49. a. Ognels case the rent is arreare the Tenant dies and the tenancie descends to the sonne in this case if the sonne also dies the executors of the sonne shall not have an action of debt for the arrearages incurred in the sonnes life because the sonne himselfe by no possibility could have such an action for that the tenure was altogether in the realty and the Tenant could not be charged in any personal action for those arrearages The like 11 If A. hath rent service or rent charge in fée or for life Co. ibid. 50. b. 4 Co. l. 5. 12. b. 1. Sanders case and the rent is arreare and after A. grants over the rent to another and the Tenant attorns and after A. dies in this case the executors of A shall not recover the arrearages by force of the Statute of 32 H. 8. cap. 27. For by the grant the over arrearages were lost and were not due to the Testator at the time of his death and the Statute saith the executors shall recover them c. in as large and ample manner as the said Testator might or ought to have recovered them c. Waste in a Cole-mine 12 A. demiseth a lease to B. for yeares Co. l. 5. 113. a. Mallories case Co. Inst pars 1. 321. b. 1. M. 36 37 El. in Co. B. Rot. 420. Owseys case wherein there is a Cole Mine not opened Here if B. open the Mine it is wast And therefore if after the Mine is open B. assigne his terme to C. and C. taketh the benefit of the Mine C. also committeth wast albeit the Mine was open before for Derivata potestas non potest esse major primitiva Grant of a reversion not good without attornment 13 If a Lease for life or years be made rendring rent c. and after the reversion is granted to B. by fine and before attornment B. disseiseth or outs the Lessée and enfeoffes C. the Lessée re-enters this shall not amount to an attornment in Law to make privity to C. and so to enable him to distraine for the rent for he shall not be in better estate than his Feoffor was it is otherwise if the Lessée had expressely attorned to the Feoffée Co. l. 6. 68. Sir Moile Finches case Demise durante viduitale 14 If a Feme seised of lands durante viduitate Co. 5. 116. a. Olands case make a Lease for yeares and the Lessée sow the land and afterwards the Feme that made the Lease takes Baron Here the Lessée shall not have the graine for although his estate be determined by the act of a stranger yet he shall not be in better case than his Lessor from whom he derives his interest Tenant in tail cannot demise longer then the estate lasts 15 If Tenant in taile make a Lease for lives according to the Statute of 32 Hen. 8. 28. and after die without issue Co. l. 8. 34. a. Pains case per Curiam this Lease being derived out of the estate tail shall not continue longer than the estate taile against the opinion in Dyer 33 Hen. 8. fol. 48. For Cessante statu primitivo cessat derivativus Co. 8. 135. b. Sir John Nedhams case 16 The Ordinary hath not power to give authority to another to sell the goods of the dead Ordinary cannot sell because he himselfe hath not any such authority 9 El. Dyer 255. Co. l. 9. 39. a. Hensloes case Co. 9. 76. b. 2. Combes case 17 A Copiholder may surrender by Attorney A Copihold may be surrendred by attorney but then that Attorney must pursue the manner and form of the surrender in all points according to the Custome as the Copiholder himselfe ought to do as if the surrender ought to be done by the rod or by any other thing or in any other manner the Attorney ought to observe it accordingly for his power shall not excéed the power of the Copiholder that gives him his authority Co. l. 11. 87. a. 4 The case of Monopolies 18 In the 11 Report The grant of a Monopoly void one reason why the grant of the Monopolie of making Cards to Edward Darcie was adjudged void was because he had no skil to make them and therefore albeit the grant extended to his Deputies and that he might appoint Deputies which might be expert yet if the Grantée himselfe be unexpert and so the grant void as to him he shall not make any Deputy to supply his place because Quod per me non possum nec per alium 27 Things are dissolved as they be contracted Unum quodque dissolvitur eo modo quo colligatum est Nihil tam conveniens naturali aequitati unumquodque dissolvi eo ligamine quo ligatum est Bract. l. 5. 413. Fleta l. 2. c. 12. Co. Inst pars 1 54. b. 1. Inst 2. part W. 2. cap. 24. 1 Bracton saith Writs not changed without Act of Parliament that writs original both formed and of course which are extant in the Register had their first authority by act of Parliament and therefore without an act of Parliament they cannot be altered or changed which is proved by Westm 2. cap. 24. whereby remedie is provided in many cases Bractons words are these Sunt quaedam brevia formata in suis casibus quaedam de cursu quae concilio totius regni sunt approbata quae quidem mutari non possunt absque eorundem
Particeps Criminis 11 E. 4. 2. Finch 18. Feoffment good against all but him that right hath 8 A Lessée for years may make a Feoffment Co. ib. 367. a. 3. Littl. §. 698. and by his feoffment a Fée-simple shall passe and if a warranty be annexed to such an estate albeit such a warranty cannot barre the Lessor or his heirs because it commenceth by disseisin yet betwéen the parties such a warranty standeth good for thereupon the Feoffée may vouch the Feoffor or his heirs as by force of a lineal warranty And therefore if a Lessée for years or Tenant by Elegit Statute Merchant Statute Staple c. or a Disseisor incontinent make a feoffment with warranty if the Feoffée be impeached he shall vouch the Feoffor and after him his heire also because this is a covenant real which binds him and his heirs to recompence in value if they have assets by descent to recompence for there is a feoffment de facto and a feoffment de jure And a feoffment de facto made by them that have such interest or possession as is aforesaid is good betwéen the parties and against all men save onely against him that hath right c. The like 9 If before the Statute of 1 R. 3. cap. 9. Littl. §. 701. Co. ib. 369. a. 1 a man had granted a messuage with the appurtenances to certain Barretors for maintenance by a feoffment with warranty by reason whereof the true Tenant durst not abide in the house this warranty commenceth by disseisin shall not binde him that right hath but some have said it shall be of force betwéen the Feoffor and Feoffée c. Lineal collateral warranty 10 If a man hath issue two sonnes and is disseised Littl. §. 707. Co. ib. 371. b. 4. and the eldest son releaseth to the Disseisor by his deed with warranty c. and dies without issue and after the father dies this is a lineal warranty to the younger son because the land by possibility might have descended from the eldest to the younger son but in that case if the younger son release to the Disseisor with warranty and dieth without issue that is a collateral warranty to the eldest son and also to the issue of his body because the eldest son by no possibility could convey the title of the land to himself by meanes of the younger But in the same case if the eldest son die without issue of his bodie then the warranty is lineal to the issues of the body of the younger And so the warranty that was collateral to some persons may become lineal to others And therefore if Tenant in taile hath issue three sons and discontinue the taile in fee and the second son releaseth by his deed to the Discontinuee with warranty c. and after the Tenant in taile die and the second son die without issue this is collateral warranty to the eldest sonne but in case the eldest son die also without issue it becomes a lineal warranty to the youngest c. Difference Barres respects severall 11 An Act of Parliament or the Common Law may make an estate void as to one person and good as to another person For example Littl. §. 708. Co. l. 1. 87. b. 1. Corbets case if lands be given to the Baron and Feme and to the heirs of their two bodies and the Baron levy a fine with proclamations and hath issue and die this fine by force of the Statute of 32 H. 8. cap. 36. shall bar the issue in taile but it shall not bind the Feme so that in respect of one it is a good barre and in respect of another it is no barre So also in a praecipe if one be vouched In that case having regard to the Demandant the Vouchee is Tenant and a release to him from the Demandant is good but having regard to a stranger he is not Tenant and therefore a release to him from a stranger is not good Likewise if one be possest of a terme for years as Executor and surrender it here as to one respect the terme is extinct and as to another respect it is assets c. Co. l. 5. 60. a. 4. in Gooches case 12 If a fraudulent conveyance be made to avoid a debt Fraudulent conveyance the grant is void as to the Creditor by the expresse provision of the Statute of 13 Eliz. cap. 5. but as to all other persons it stands good Co. lib. 6 78. b. The Lord of Aburgavennies case 13 A. and B. are joyntenants for life A charge upo◠one of the Joyntenants and judgement is given for C. against A. in an action of Debt A. releaseth to B. before execution here albeit B. is now in by the Lessor and not by A. and the estate of A. as to all strangers is determined yet as to C. who hath the judgement whereby the moity of A. was charged with the execution the estate of A. during the life of A. hath continuance But in case A. die before execution B. shall hold it discharged c. Co. ibid. 79. a. 14 If there be two joyntenants in fee Joyntenants Rent-charge and the one grants a Rent-charge in fée and after releaseth to the other In this case albeit to some intent he to whom the release is made is in by the first Feoffor and no degrée is made betwixt them yet as to the Grantée of the Rent-charge he is in under the Ioyntenant that releaseth and he that surviveth shall not avoid it after the decease of him that releaseth Vide M. 30. c. 8. Co. ibid. 15 A. and B. are Ioyntenants for life The like the reversion to C. judgement is given against A. in an action of Debt A. releaseth to B. B. dies C. enters Yet as to him that hath the judgement the estate of A. so long as A. liveth hath continuance Co. ibid. 16 If the Baron being seised of a Rent or Common in fée The like for Dower release to the land Tenant this rent is extinct yet having regard to the Feme it hath continuance for she shall be endowed thereof See there many authorities in the point and Co. l. 7. 38. b. 3. Lillingstons case Co. l. 6 79. b. 4. Sir Edward Phittons case 17 In the general pardon of 43 Eliz. there was this proviso General pardon that any Clerk might make a Capias utlagatum at the suit of the Plaintiff against out-lawed persons to the intent to compel the Defendant to answer and that the party shall sue a Scire facias before the pardon in that behalfe shall be allowed but this is onely as having regard to the Plaintiff for as to the King it is an absolute pardon and grant of his goods Lord and Villain c. so that the pardon was available to discharge the Defendant against the King but not to discharge him against the party Plaintiffe
ancient recompence yet doubtlesse the place wasted being in the realty must néeds be the more principal And therefore upon a Recovery had by default in an Action of Waste against tenant in Dower or by the Courtesie a Quod ei deforceat lieth as well as in any other Action c. for à digniori fieri debet denominatio resolutio c. â—â—e Kings â—nnis-playes 2 If the King grant the office of the Tennis-Playes in Westminster Co. l. 8. 45. b. 4. in John Webs Case by the name of the Kings Tennis-playes in VVestm c. this grant shall be taken in a reasonable sence viz. the Tennis-playes for the Kings Houshold and not onely for the Tennis-play when the King himself playes in his Royal Person for the King is the Head of his Houshold and therefore à digniori parte the Tennis-playes for his houshold may be well called The Kings Tennis-plays c. Co. l. 10. 47. b. a. in Lampets case 3 A. Lessée for 500 years deviseth to B. for his life Executor or Legatee Election and after his decease the remainder to C and to the heires of his body and makes B. his executor and dies B. takes upon him the charge and enters In this Case when the devise is ut suprà to the executor for life and after to another c. and the executor enters generally he shall have the Lease as executor which is his first and general authority and not as Legatory without claim or demonstrartion of his election albeit the testator was not indebted to any c. Co. l. 11. 38. b. 4. in Metcalfes case 4 When a thing whereof there are divers degrées and qualitites is indefinitely mentioned in a Writ Count or other Record Principal things includâ— inferiour the principal and most worthy thing shall be intended as in 6. Eliz. Dier 236. when a penalty is inflicted by Act of Parliament to be recovered in any of the Kings Courts of Record it shall be intended of the Principal Courts at Westm 20. H. 6. 23. In accompt supposing the Defendant to be his Receiver from the feast of St. Michael this shall be intended the principal Feast of St. Michael the Archangel and not of St. Michael de Monte Tumbe so 13. H. 4. 4. 21. H. 6. 8. 37. H. 6. 29. If the father and son are of one name viz. I. S. if I. S. be named generally in a Writ Count or other Record this shall be intended of the father for he is the more worthy Likewise 10. E. 4. 11. 7. R. 2. Tit. Barr. 241. A man is bound to prove a thing or a thing is to be tried this shall be by the most principal proof and trial in law viz. by a Iury so if it be spoken of fée it shall be intended fée-simple Litt. §. 193. Co. Inst part 1 124. b. 3. or if of escuage it shall be intended of the principal Escuage viz. of Escuage uncertain Litt. fol. 21. And fée a notable case to this purpose in 5 E. 2. Resceit 165. were the Case was this In admeasurement of Pasture against a man and his wife Iudgment was given that the admeasurement should be made and after it was made in pais and returned in Banco 15. Hillar at which day the Baron made default and the Feme came in Court before the judgment rendred in the principal and the prayed to be received In this case albeit it was moved that she came too late viz. after the admeasurement awarded which is a judgment yet thereunto Herle said that it was no judgment upon the principal And where the Statute of West cap. 3. is Si uxor ante judicium venerit c. Statutum debet intelligi de principali judicio So also in 2 E. 3. Resceit 139. In an Assise of Mortd against Baron and Feme the Assise was awarded by default and the Assise remained alwayes pro defectu Juratorum then the Feme prayed to be received and it as objected that judgement was given that the Assise should be taken neverthelesse the Feme comming in before final judgment was received and with this accords 17. E. 2. ibid. 173. and 22. Ass pl. 22. After the Assise awarded the Feme was received 24. E. 3. 29. and divers other Books accord c. Co. l. 11. 39. a. 4. in Metcalfes ease 5 These words in a writ of Error Si judicium inde redditum sit No writ of Eâ—ror before judgment 〈◊〉 all c. are intended not onely de principali Judicio but also de integro Judicio viz. when all the matter within the original is determined as in 34. H. 6. 18. in Humphrey Bohuns Case in Quare impedit brought by two the one pleads to the Issue and the other confesseth the Action upon which confession Iudgment is given and he against whom the Iudgment was given sues a writ of Error to remove the Record into the Kings Bench Here Prisot tota Curia say this cannot be for the writ of Error shall rehearse all those that are parties to the original writ and then the writ saith Et si Judicium inde redditum sit tunc recordum illud habeatis c. which proves that it cannot be removed before the whole matter be determined c. 76 The Law requireth decencie and order The Homager must seek his Lord. 1 The tenant ought to séek the Lord to do him homage Co. Inst pars 1 104. b. 4. Bract. fol. 80. Britton fo 171 if the Lord he within England for this service is personal as well on the Lords side as on the tenants and in this Case the Law requireth decency and order And therefore Bracton saith Et sciendum quod ille qui homagium suum facere debet obtentu reverentiae quam debet domino suo audire debet dominum suum ubicunque inventus fuerit in regno vel alibi si commodè possit adiri non tenetur dominus quaerere suum tenentem sic debet homagium ei facere c. and there is the same Law for fealty ec Causae Matriâ—onii praelocuti 2 If a woman give lands to a man and his heirs Co. ibid. 204. a. 3. 226. a. 3. causa matrimonii praelocuti In this Case if she either marry the man or the man refuse to marry her she shall have the land again to her and to her heirs but on the other side if a man give land to a woman and to her heirs causa matrimonii praelocuti though marry her or the woman refuse he shall not have the lands again for it stands not with the modesty of women in this kinde to ask advice of learned Councel as the man may and ought c. And for the same reason a woman may aver the cause although it be not contained in the Déed yea albeit the feofment be made without Déed Order in pleading 3 The order
appendant in twenty acres of land enfeoff B. of parcell thereof this Common shall be apportioned and B. shal have Common pro rata and if he be invested shall make a speciall prescription for his Common It is otherwise of Common appurtenant which is against common right for by purchase of part of the land in which c. the whole common is extinct Co. l. 6. 58. a 4 Bredimans case Co. ibid. 58. b. 3. 7. Lessee for years pays a rent seck Seisin of Reâ—seck by the Lessee for years not good this is not such a seisin as is required in an Assise against the tenant of the frank tenement and one of the reasons alledged for this resolution is because a rent seck is against common right and therefore shall not be favoured in Law but the seisin ought to be given by the tenant of the frank tenement or seisin ought to be made or given by all the ter-tenants that have interest in the land out of which c. because they are against common right and therefore not favoured in Law Co. l. 8. 105. b. 3. in John Talbots case 8. In most cases where the Lord purchaseth part of the tenancy especially if the tenant hold by an Intire service the whole service is extinct Homage and fealty remaiâ— howbeit although the Lord purchase parcell of the tenancy Homage and Fealty shall remaine for the residue because they are due of common right Co. l. 8. 118. a. 2. in Doctor Bonhams case 9. When an Act of Parliament is against common right and reason Acts against common rigâ— void or repugnant or impossible to be performed the common Law doth controll it and adjudgeth such an Act voyd And therefore in 8 E. 3. 30. Thomas Tregors case upon the Statute of Westm 2. c. 38. and Artic super Car. cap. 9. Herle saith Some Statutes are made against Law and right which those that made them perceiving would not put them in execution The Statute of Westm 2. cap. 21. gives a Writ of Cessavit heredi petenti super heredem tenentem super eos quibus alienatum fuerit hujusmodi tenementum And yet where in 33 E. 3. tit Cessavit 42. there were two Coparceners Lords and Tenant by fealty and certaine rent the one Coparcener had issue and dyes the other and the Neece could not joyne in a Cessavit because the heire could not have a Cessavit for the Lessee in the time of her Ancestor F. N. B. 209. f. and with this accords Plowd Com. 110. and the reason hereof is because in Cessavit the tenant before judgment may render the arrerages and damages c. and retaine his Land and this he cannot do when the heire brings Cessavit for the Lessee in the time of his Ancestor for the arrerages occurred in the life of his Ancestor belong not to him and thereupon because the sayd Act was against common right and reason the common Law as to that point adjudged it voyd Vide plus ibidem Tâ—â—hes due of common right 10. Quota pars viz. decima pars which we call dismes or tythes is an Ecclesiasticall Inheritance collaterall to the estate of the Land Co. l. 11. 13. a. 3. in Bridle and Nappers case which cannot be either extinct or suspended by unity of possession because they are due of common right And therefore if a Prior having a Parsonage impropriate had infeoffed a Lay-man of part of the Glebe yet he should have had tythes against his owne feoffment as it is held in 42 E. 3. 13. a. Vide Hob. 107. The Bishop of Carliles case Certainty in a Leet 11. The Lord of a Leet cannot justifie to distraine for the certainty of the Leet because it is collaterall and against common right Co. l. 11. 44. 2. 45. 2. in Rich. Godfreys case and for the private profit of the Lord of the Leet which the Lord cannot have without prescription and therefore as he ought to prescribe in the principall so ought he to prescribe in the distresse Howbeit although for an amerciament in a Court Baron the Lord cannot distraine without prescription Vide 44 E. 3. 13. yet for a Fine and all amerciaments in a Court Leet distresse is incident of common right And therefore if the certainty be not duely payd the Deciver or Capitall pledge that collects it may first be amerced and then distrained for his negligence Tenant at wil. 12. If Lessor upon a lease at will reserve an annuall rent Litt. S. 72. Co. Inst pars 1. 57. b. he may distraine for the rent arreare or have an action of debt for it at his election because power of distresse is in that case given him of common right and so is also the action â—galty de partition 13. Where Coparceners make partition by Parol Litt. S. 252. Co. ibid. 169. b. and for egalty of partition one of them is to have a rent out of the land in this case shee may distraine for the rent arreare of common right Assize 14. In an Assise of Novel disseisin for Land Dyer 84. a. 81 7. E. 6. or since the Statute of 32 H. 8. 7. for Tithes the ter-tenant need not be named in the Count but onely the disseisor It is otherwise in an Assise of Rent-charge or seck because they are things against common right 145. And therefore it suffereth things against principles of Law rather then the party should be without remedy A speciall case of an entail 1. John de Mandevile by his Wife Roberge had issue Robert and Mawde Michael de Morvile gave certaine Lands to Roberge Co. Inst pars 1. 26. b. 2. and to the heires of John Mandevile her late Husband on her body begotten and it was adjudged that Roberge had an estate but for life and the fee-taile vested in Robert heires of the body of his Father being a good name of purchase and that when he dyed without issue Mawde the Daughter was tenant in taile as heire of the body of her Father per formam doni and the Formedon which shee brought supposed Quod post mortem prefatae Robergiae Roberti filii heredis ipsius Johannis Mandevile heredis ipsius Johannis de prefata Robergia per prefatum Johannem procreat prefatae matildae filiae predict Johannis de prefato de Robergia per prefatum Johannem procreatae sorori heredi predicti Roberti descendere debet performam donationis predictae And yet in truth the land did not descend unto her from Robert but because shee could have no other Writ it was adjudged to be good In which case it is to be observed that albeit Robert being heire tooke an estate by purchase and the Daughter was no heire of his body at the time of the gift yet shee recovered the land per formam doni by the name of Heire of the body of her Father which indeed her brother was
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